UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
Date
of Report (Date of Earliest Event Reported):
March
28, 2019
BK Technologies Corporation
__________________________________________
(Exact name of registrant as specified in its charter)
Nevada
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001-32644
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83-4064262
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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7100 Technology Drive, West Melbourne, FL
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32904
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(321) 984-1414
______________________________________________
Former name or former address, if changed since last
report
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
[ ] Written communications pursuant to Rule
425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement communications pursuant
to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933
(§ 230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§ 240.12b-2 of this
chapter).
Emerging
growth company
[ ]
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act.
[ ]
Explanatory
Note
On
March 11, 2019, BK Technologies, Inc., a Nevada corporation
(“Old BK”), announced that its board of directors had
approved the implementation of a holding company reorganization. On
March 28, 2019, Old BK implemented the holding company
reorganization pursuant to the Merger Agreement (as defined in Item
1.01 herein), which resulted in BK Technologies Corporation
becoming the direct parent company of Old BK (the
“Reorganization”) and the successor issuer to Old BK
pursuant to Rule 12g-3(a) under the Securities Exchange Act of
1934, as amended (the “Exchange Act”).
This
Current Report on Form 8-K (this “Form 8-K”) is being
filed for the purpose of establishing BK Technologies Corporation
as the successor issuer to Old BK pursuant to Rule 12g-3 under the
Exchange Act, and to disclose events required to be disclosed on
Form 8-K with respect to the Reorganization. Pursuant to Rule
12g-3(a) under the Exchange Act, the shares of BK Technologies
Corporation common stock, par value $0.60 per share (“New BK
Common Stock”), are deemed registered under Section 12(b) of
the Exchange Act.
Item
1.01
Entry into a Material Definitive Agreement
.
Merger Agreement and Reorganization
On
March 28, 2019, Old BK, BK Technologies Corporation, a Nevada
corporation and formerly a direct, wholly-owned subsidiary of Old
BK (“New BK”), and BK Merger Sub, Inc., a Nevada
corporation and formerly a direct, wholly-owned subsidiary of New
BK (“Merger Sub”), entered into an Agreement and Plan
of Merger (the “Merger Agreement”) pursuant to which
Merger Sub merged with and into Old BK, with Old BK surviving as a
direct, wholly-owned subsidiary of New BK (the
“Merger”). At the effective time of the Merger, all
issued and outstanding shares of Old BK common stock, par value
$0.60 per share (“Old BK Common Stock”), were
automatically converted, on a one-for-one basis, into shares of New
BK Common Stock, evidencing the same proportional interests in New
BK and having the same designations, rights, powers and
preferences, and the same qualifications, limitations and
restrictions, as the shares of Old BK Common Stock immediately
prior to the effective time of the Merger. Accordingly, upon
consummation of the Merger, the stockholders of Old BK immediately
prior to the effective time of the Merger became stockholders of
New BK. The Merger is intended to be a tax-free transaction for
U.S. federal income tax purposes for stockholders of Old BK. As a
result of the consummation of the Merger, New BK has, on a
consolidated basis, the same assets, business and operations as Old
BK had immediately prior to the effective time of the
Merger.
Stockholder
approval of the Merger was not required under the Nevada Revised
Statutes. The conversion of Old BK Common Stock into New BK Common
Stock occurred automatically without an exchange of stock
certificates, and certificates that previously represented shares
of Old BK Common Stock now represent the same number of shares of
New BK Common Stock. In addition, upon consummation of the
Merger:
●
each unexercised
and unexpired stock option then outstanding under Old BK’s
2007 Incentive Compensation Plan, as amended, and 2017 Incentive
Compensation Plan (collectively, the “Equity Plans”),
whether or not then exercisable, ceased to represent a right to
acquire shares of Old BK Common Stock and was converted
automatically into a right to acquire the same number of shares of
New BK Common Stock, on the same terms and conditions, including,
without limitation, the vesting schedule (without acceleration
thereof by virtue of the Merger) and the per share exercise price
as were applicable under such Old BK stock option; and
●
each share of
restricted stock and each restricted stock unit of Old BK granted
under the Equity Plans ceased to represent or relate to shares of
Old BK Common Stock and was converted automatically to represent or
relate to shares of New BK Common Stock, on the same terms and
conditions as were applicable to such Old BK restricted stock and
restricted stock units, including, without limitation, the vesting
schedule or other restrictions (without acceleration thereof by
virtue of the Merger).
Following the
consummation of the Merger, shares of Old BK Common Stock were
delisted from the NYSE American and shares of New BK Common Stock
are now listed on the NYSE American under the trading symbol
“BKTI,” which was the same trading symbol used by Old
BK for shares of Old BK Common Stock. Additionally, New BK Common
Stock has been assigned a new CUSIP Number: 05587G
104.
As a
result of the Merger, New BK became the successor issuer to Old BK
pursuant to 12g-3(a) of the Exchange Act and, accordingly, the New
BK Common Stock is deemed registered under Section 12(b) of the
Exchange Act.
The
foregoing does not purport to be a complete description of the
Merger and the Reorganization and is qualified in its entirety by
reference to the full text of the Merger Agreement, a copy of which
is filed as Exhibit 2.1 to this Form 8-K and incorporated by
reference herein.
Item
2.01
Completion of Acquisition or Disposition of
Assets
.
Pursuant to the
Merger Agreement, as of the effective time of the Merger, Merger
Sub merged with and into Old BK, with Old BK surviving as a
wholly-owned subsidiary of New BK. The Merger was consummated by
the filing of Articles of Merger, effective as of the effective
time specified therein, with the Secretary of State of the State of
Nevada. A copy of the Articles of Merger is attached to this Form
8-K as Exhibit 3.1 and is incorporated by reference in this Item
2.01.
Item
2.03
Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant
.
As a
result of the Merger, on March 28, 2019, New BK assumed and
succeeded to by operation of law all of the prior debts,
liabilities, obligations and duties of Old BK, and such debts,
liabilities, obligations and duties may be enforced against New BK
to the same extent as if New BK had itself incurred or contracted
all such debts, liabilities, obligations and duties. For more
information concerning these debts, liabilities, obligations and
duties, see generally Old BK’s Annual Report on Form 10-K for
the year ended December 31, 2018, filed with the Securities and
Exchange Commission (the “Commission”) on February 27,
2019.
The
information included in Item 1.01 of this Form 8-K is incorporated
by reference in this Item 2.03.
Item
3.01
Notice of Delisting or Failure to Satisfy a Continued Listing Rule
or Standard; Transfer of Listing
.
In
connection with the Merger, Old BK notified the NYSE American that
the Merger was expected to close on March 28, 2019 and requested
the NYSE American to file with the Commission an application on
Form 25 to remove the shares of Old BK Common Stock from listing on
the NYSE American and to deregister the shares of Old BK Common
Stock under Section 12(b) of the Exchange Act. Following the
consummation of the Merger, at the opening of the market on March
29, 2019, shares of New BK Common Stock are expected to be listed
and begin trading on the NYSE American under the trading symbol
“BKTI,” which is the same trading symbol used by Old BK
for shares of Old BK Common Stock. Old BK also intends to file a
certification and notice on Form 15 with the Commission requesting
that Old BK’s reporting obligations under Sections 13 and
15(d) of the Exchange Act be suspended (except to the extent of the
succession of New BK to the Exchange Act Section 12(b) registration
and reporting obligations of Old BK as described under the heading,
“
Successor
Issuer
,” under Item 8.01 below).
The
information set forth in Item 1.01 and Item 8.01 under the heading,
“
Successor
Issuer
,” describing the succession of New BK to
Exchange Act Section 12(b) and reporting obligations of Old BK, is
hereby incorporated by reference in this Item 3.01.
Item
3.03
Material Modification to Rights of Security
Holders
.
At the
effective time of the Merger, each share of Old BK Common Stock
issued and outstanding immediately prior to the effective time of
the Merger automatically converted into an equivalent corresponding
share of New BK Common Stock, having the same designations, rights,
powers and preferences and the qualifications, limitations and
restrictions as the corresponding share of Old BK Common Stock that
was converted.
The
information set forth in Item 1.01 is hereby incorporated by
reference in this Item 3.03.
Item
5.02
Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain
Officers; Compensatory Arrangements of Certain
Officers
.
Election of Directors; Appointment of Executive
Officers
The
directors of New BK and their committee memberships and titles,
which are listed below, are identical to the directors of Old BK
and their committee memberships and titles immediately prior to the
effective time of the Merger.
Name
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Position
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D. Kyle
Cerminara(1)(2)
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Chairman
of the Board
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Lewis
M. Johnson(2)
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Co-Chairman
of the Board
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Michael
R. Dill(1)(3)
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Director
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Charles
T. Lanktree(1)
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Director
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E. Gray
Payne(1)(2)(3)
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Director
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John W.
Struble(3)
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Director
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Ryan
R.K. Turner(1)
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Director
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(1)
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Member
of the Compensation Committee.
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(2)
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Member
of the Nominating and Governance Committee.
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(3)
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Member
of the Audit Committee.
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Identical to the
composition of the board committees of Old BK immediately prior to
the effective time of the Merger, Mr. Struble serves as chairman of
the Audit Committee of New BK, General Payne serves as chairman of
the Compensation Committee of New BK, and Mr. Johnson serves as
chairman of the Nominating and Governance Committee of New
BK.
Biographical
information about the directors of New BK is included under the
heading “Board of Directors” under Item 10.
“Directors, Executive Officers and Corporate
Governance” of Part III of Old BK’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, filed with
the Commission on February 27, 2019 and is incorporated by
reference herein.
Information
regarding the compensation arrangements of the directors of New BK
is included under the heading “Director Compensation”
under Item 11. “Executive Compensation” of Part III of
Old BK’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2018, filed with the Commission on February 27, 2019
and is incorporated by reference herein.
The
board of directors of New BK has determined that each director is
independent, as that term is defined by the applicable rules and
regulations of the NYSE American.
The
executive officers of New BK and their positions and titles, which
are listed below, are identical to the executive officers of Old BK
and their positions and titles immediately prior to the effective
time of the Merger.
Name
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Position
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Timothy
A. Vitou
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President
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William
P. Kelly
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Executive
Vice President, Chief Financial Officer, Secretary and
Treasurer
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Henry
R. (Randy) Willis
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Chief
Operating Officer
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James
R. Holthaus
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Chief
Technology Officer
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Biographical
information of the executive officers of New BK is included under
the heading “Executive Officers” under Item 10.
“Directors, Executive Officers and Corporate
Governance” of Part III of Old BK’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, filed with
the Commission on February 27, 2019 and is incorporated by
reference herein. Information regarding the compensation
arrangements of the executive officers of New BK is included under
Item 11. “Executive Compensation” of Part III of Old
BK’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2018, filed with the Commission on February 27, 2019,
and Old BK’s Current Report on Form 8-K, filed with the
Commission on March 21, 2019, under Item 5.02 “Departure of
Directors or Certain Officers; Election of Directors; Appointment
of Certain Officers; Compensatory Arrangements of Certain
Officers” and each is incorporated by reference herein. The
executive officers’ employment agreements and
change-of-control agreements are retained by BK Technologies, Inc.,
a wholly-owned subsidiary of New BK.
For
information regarding disclosure required pursuant to Item 404(a)
of Regulation S-K with respect to the directors and executive
officers of New BK, see the discussion under the heading
“Transactions with Related Persons” under Item 13.
“Certain Relationships and Related Transactions, and Director
Independence” of Part III of Old BK’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2018, filed with
the Commission on February 27, 2019, which is incorporated by
reference herein. Except as disclosed in this Item 5.02, there have
been no transactions involving New BK and its directors and
executive officers that New BK would be required to disclose herein
pursuant to Item 404(a) of Regulation S-K.
The
information set forth in Item 1.01 is hereby incorporated by
reference in this Item 5.02.
Equity Plans
In
connection with the Reorganization, Old BK and New BK entered into
an Omnibus Amendment to Incentive Compensation Plans, dated as of
March 28, 2019 (the “Omnibus Amendment”), pursuant to
which, as of the effective time of the Merger, Old BK transferred
to New BK, and New BK assumed, sponsorship of the Equity Plans and
each stock option award agreement, restricted stock award agreement
and restricted stock unit award agreement entered into pursuant to
the Equity Plans. The Omnibus Amendment and the related amendments
to the form of award agreements under the Equity Plans reflect New
BK’s assumption of the Equity Plans and award agreements and
the obligations thereunder and the substitution of shares of New BK
Common Stock for shares of Old BK Common Stock upon the exercise or
vesting of awards granted under the Equity Plans.
The
foregoing does not purport to be a complete description of the
Omnibus Amendment and the forms of the amended award agreements and
is qualified in its entirety by reference to the full text of the
Omnibus Amendment and the forms of the amended award agreements,
which are filed as Exhibits 10.1 through 10.4 to this Form 8-K and
are incorporated by reference herein.
Item
5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
.
In
connection with the Reorganization and as of the effective time of
the Merger, the Articles of Incorporation of New BK and the Bylaws
of New BK are the same as the Articles of Incorporation, as
amended, of Old BK, and the Second Amended and Restated Bylaws of
Old BK immediately prior to the effective time of the Merger,
respectively, other than changes permitted by the Nevada Revised
Statutes.
The
Articles of Incorporation and Bylaws of New BK are filed as
Exhibits 3.2 and 3.3, respectively, to this Form 8-K and are
incorporated by reference herein.
Press Release
On
March 28, 2019, New BK issued a press release announcing the
completion of the Reorganization and the Merger and other
information related thereto. A copy of the press release is
attached as Exhibit 99.1 to this Form 8-K and is incorporated by
reference herein.
Successor Issuer
In
connection with the Reorganization and as of the effective time of
the Merger, and by operation of Rule 12g-3(a) promulgated under the
Exchange Act, New BK is the successor issuer to Old BK and has
succeeded to the attributes of Old BK as the registrant, including
Old BK’s Commission file number and CIK number. Shares of New
BK Common Stock are deemed to be registered under Section 12(b) of
the Exchange Act, and New BK is subject to the information
requirements of the Exchange Act, and the rules and regulations
promulgated thereunder, and will hereafter file reports and other
information with the Commission using Old BK’s Commission
file number (001-32644). New BK hereby reports this succession in
accordance with Rule 12g-3(f) promulgated under the Exchange
Act.
Quarterly Dividend
On
March 5, 2019, the board of directors of Old BK declared a
quarterly dividend of $0.02 per share of Old BK Common Stock,
payable on April 15, 2019 to stockholders of record of Old BK
Common Stock as of the close of business on April 1, 2019. A copy
of the press release announcing the quarterly cash dividend was
filed as Exhibit 99.1 to Old BK’s Current Report on Form 8-K,
filed with the Commission on March 6, 2019. As a result of the
consummation of the Merger prior to the record date and payment
date of the quarterly dividend declared by the board of directors
of Old BK, all stockholders of Old BK entitled to receive payment
of the dividend are now stockholders of New BK. Accordingly, the
board of directors of New BK has assumed the dividend to be paid on
April 15, 2019 to stockholders of record of New BK Common Stock as
of the close of business on April 1, 2019.
Forward-Looking Statements
This Form 8-K contains statements about future
events and expectations which are “forward-looking
statements” within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Exchange
Act, including statements about New BK’s plans, objectives,
expectations and prospects. These statements can be identified by
forward-looking words such as “may,”
“might,” “could,” “would,”
“will,” “anticipate,”
“believe,” “plan,” “estimate,”
“project,” “expect,” “intend,”
“seek” and other similar expressions. Any statement
contained in this Form 8-K that is not a statement of historical
fact may be deemed to be a forward-looking statement. Although New
BK believes that the plans, objectives, expectations and prospects
reflected in or suggested by its forward-looking statements are
reasonable, those statements involve risks, uncertainties and other
factors that may cause New BK’s actual results, performance
or achievements to be materially different from any future results,
performance or achievements expressed or implied by these
forward-looking statements, and New BK can give no assurance that
its plans, objectives, expectations and prospects will be
achieved.
Important factors
that might impact New BK’s plans, objectives, expectations
and prospects are contained in the “Risk Factors”
section of Old BK’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2018, and in Old BK’s and New
BK’s other current and periodic reports filed from time to
time with the Securities and Exchange Commission. All
forward-looking statements in this Form 8-K are made as of the date
hereof, based on information available to New BK as of the date
hereof, and New BK assumes no obligation to update any
forward-looking statement.
Item 9.01
Financial
Statements and Exhibits
.
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Agreement
and Plan of Merger, dated as of March 28, 2019, by and among BK
Technologies, Inc., BK Technologies Corporation and BK Merger Sub,
Inc.
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Articles
of Merger, filed with the Nevada Secretary of State on March 28,
2019.
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Articles
of Incorporation of BK Technologies Corporation.
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Bylaws
of BK Technologies Corporation.
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Form of Common
Stock Certificate of BK Technologies
Corporation.
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Omnibus
Amendment to Incentive Compensation Plans, dated as of March 28,
2019, by and between BK Technologies, Inc. and BK Technologies
Corporation.
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Form
of Stock Option Agreement under the 2017 Incentive Compensation
Plan.
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Form
of Restricted Share Agreement under the 2017 Incentive Compensation
Plan.
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Form
of Restricted Stock Unit Agreement under the 2017 Incentive
Compensation Plan.
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Press
Release dated March 28, 2019.
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SIGNATURE
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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BK
TECHNOLOGIES CORPORATION
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Date: March 28,
2019
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By:
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/s/
William P.
Kelly
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William P.
Kelly
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Executive Vice
President and
Chief Financial
Officer
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this
“
Agreement
”)
is entered into as of March 28, 2019, by and among BK Technologies,
Inc., a Nevada corporation (the “
Company
”),
BK Technologies Corporation, a Nevada corporation and a direct
wholly owned subsidiary of the Company (“
HoldCo
”),
and BK Merger Sub, Inc., a Nevada corporation and a direct wholly
owned subsidiary of HoldCo (“
Merger
Sub
”).
RECITALS
WHEREAS, as of the date hereof, the Company has
the authority to issue 21,000,000 shares, consisting of (i)
20,000,000 shares of common stock, par value $0.60 per share
(“
Company Common
Stock
”), of which
12,742,807 shares are issued and outstanding, and (ii) 1,000,000
shares of preferred stock, par value $1.00 per share
(“
Company Preferred
Stock
”), of which no
shares are issued and outstanding;
WHEREAS, as of the date hereof, HoldCo has the
authority to issue 21,000,000 shares, consisting of (i) 20,000,000
shares of common stock, par value $0.60 per share
(“
HoldCo Common
Stock
”), of which 100
shares are issued and outstanding and held by the Company, and (ii)
1,000,000 shares of preferred stock, par value $1.00 per share
(“
HoldCo Preferred
Stock
”), of which no
shares are issued and outstanding;
WHEREAS, as of the date hereof, Merger Sub has the
authority to issue 1,000 shares of common stock, par value $0.60
per share (“
Merger Sub Common
Stock
”), of which 100
shares are issued and outstanding and held by
HoldCo;
WHEREAS,
HoldCo and Merger Sub are newly formed corporations organized for
the sole purpose of participating in the transactions contemplated
herein and actions related thereto, own no assets (other than
HoldCo’s ownership of Merger Sub and nominal capital) and
have taken no actions other than those necessary or advisable to
organize the corporations and to effect the transactions
contemplated herein and actions related thereto;
WHEREAS, the Company desires to reorganize into a
holding company structure pursuant to NRS 92A.180, NRS 92A.200,
NRS 92A.230 and NRS 92A.250 of Chapter 92A, “Mergers,
Conversions, Exchanges and Domestications” of the Nevada
Revised Statutes (“
MCED
”),
under which HoldCo would become a holding company, by the merger of
Merger Sub with and into the Company (the
“
Merger
),
and with each share of Company Common Stock being converted in the
Merger into a share of HoldCo Common Stock as of the Effective Time
(as defined below);
WHEREAS,
as of the Effective Time, the designations, rights, powers and
preferences, and the qualifications, limitations and restrictions
of the HoldCo Common Stock and HoldCo Preferred Stock will be the
same as those of the Company Common Stock and Company Preferred
Stock, respectively;
WHEREAS, the Articles of Incorporation of HoldCo
(the “
HoldCo
Charter
”) and the Bylaws
of HoldCo (the “
HoldCo
Bylaws
”), which will be
in effect immediately following the Effective Time, contain
provisions identical to the Articles of Incorporation of the
Company (as amended, the “
Company
Articles
”), and the
Second Amended and Restated Bylaws of the Company (the
“
Company
Bylaws
”), in effect as of
the date hereof and that will be in effect immediately prior to the
Effective Time, respectively (other than as permitted by NRS
92A.200 of the MCED);
WHEREAS,
on or about the date hereof, the Company and HoldCo will enter into
an Omnibus Amendment to the Company’s Equity Plans (as
defined below) pursuant to which, among other things, the Company
will, contingent upon the consummation of the Merger, transfer to
HoldCo, and HoldCo will assume, sponsorship of all of the
Company’s Equity Plans and all of the Company’s rights
and obligations thereunder effective as of the Effective
Time;
WHEREAS,
the respective boards of directors of HoldCo and the Company have
approved and declared advisable this Agreement and the transactions
contemplated hereby, including, without limitation, the
Merger;
WHEREAS,
the sole director of Merger Sub has (i) approved and declared
advisable this Agreement and the transactions contemplated hereby,
including, without limitation, the Merger, (ii) resolved to submit
the approval of the adoption of this Agreement and the transactions
contemplated hereby, including, without limitation, the Merger, to
the sole stockholder of Merger Sub, and (iii) resolved to recommend
to the sole stockholder of Merger Sub that the sole director
approves the adoption of this Agreement and the transactions
contemplated hereby, including, without limitation, the Merger;
and
WHEREAS,
the parties intend, for United States federal income tax purposes,
that the Merger shall qualify as an exchange described in Section
351 of the Internal Revenue Code of 1986, as amended.
NOW,
THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Agreement, and intending to be legally
bound hereby, the Company, HoldCo and Merger Sub hereby agree as
follows:
1.
THE MERGER
. In accordance with NRS 92A.180 of the MCED and
subject to, and upon the terms and conditions of, this Agreement,
Merger Sub shall be merged with and into the Company (the
“
Merger
”),
the separate corporate existence of Merger Sub shall cease, and the
Company shall continue as the surviving corporation of the Merger
(the “
Surviving
Corporation
”). At the
Effective Time, the effects of the Merger shall be as provided in
this Agreement and in NRS 92A.250 of the
MCED.
2.
EFFECTIVE
TIME
. As soon as practicable on
or after the date hereof, the Company shall file articles of merger
executed in accordance with the relevant provisions of the MCED,
with the Secretary of State of the State of Nevada (the
“
NV Secretary of
State
”) and shall make
all other filings or recordings required under the MCED to
effectuate the Merger. The Merger shall become effective at such
time as the articles of merger are duly filed with and accepted by
the NV Secretary of State or at such later date and time as the
parties shall agree and specify in the articles of merger (the date
and time the Merger becomes effective being referred to herein as
the “
Effective
Time
”).
3.
ARTICLES OF INCORPORATION AND
BYLAWS
.
(a)
From
and after the Effective Time, by virtue of the Merger and without
any action on the part of any party, the Company Articles, as in
effect immediately prior to the Effective Time, shall constitute
the articles of incorporation of the Surviving Corporation until
thereafter amended as provided therein or pursuant to the MCED (the
“
Surviving Corporation
Articles
”).
(b)
From
and after the Effective Time, by virtue of the Merger and without
any action on the part of any party, the Company Bylaws, as in
effect immediately prior to the Effective Time, shall constitute
the bylaws of the Surviving Corporation until thereafter amended as
provided therein or pursuant to applicable law (the
“
Surviving Corporation
Bylaws
”).
4.
DIRECTORS.
The directors of the Company in office immediately
prior to the Effective Time shall be the directors of the Surviving
Corporation and will continue to hold office from the Effective
Time until the earlier of their resignation, removal or retirement
or until their successors are duly elected or appointed and
qualified in the manner provided in the Surviving Corporation
Articles and Surviving Corporation Bylaws, or as otherwise provided
by law.
5.
OFFICERS.
The officers of the Company in office immediately
prior to the Effective Time shall be the officers of the Surviving
Corporation and will continue to hold office from the Effective
Time until the earlier of their resignation, removal or retirement
or until their successors are duly elected or appointed and
qualified in the manner provided in the Surviving Corporation
Articles and Surviving Corporation Bylaws, or as otherwise provided
by law.
6.
ADDITIONAL ACTIONS.
If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that
any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or
confirm, of record or otherwise, in the Surviving Corporation its
right, title or interest in, to or under any of the rights,
properties or assets of either Merger Sub or the Company acquired
or to be acquired by the Surviving Corporation as a result of, or
in connection with, the Merger or otherwise to carry out this
Agreement, the officers and directors of the Surviving Corporation
shall be authorized to execute and deliver, in the name and on
behalf of each of Merger Sub and the Company, all such deeds, bills
of sale, assignments and assurances and to take and do, in the name
and on behalf of each of Merger Sub and the Company or otherwise,
all such other actions and things as may be necessary or desirable
to vest, perfect or confirm any and all right, title and interest
in, to and under such rights, properties or assets in the Surviving
Corporation or otherwise to carry out this
Agreement.
7.
CONVERSION OF
SECURITIES.
At the Effective
Time, by virtue of the Merger and without any action on the part of
the Company, HoldCo, Merger Sub or any holder of any securities
thereof:
(a)
Conversion
of Company Common Stock
. Each
share of Company Common Stock issued and outstanding immediately
prior to the Effective Time shall be converted into one validly
issued, fully paid and nonassessable share of HoldCo Common
Stock.
(b)
Conversion
of Company Stock Held as Treasury Stock
. Each share of Company Common Stock held in the
Company’s treasury shall be converted into one validly
issued, fully paid and nonassessable share of HoldCo Common Stock
to be held immediately after completion of the Merger in the
treasury of HoldCo.
(c)
Conversion
of Capital Stock of Merger Sub
.
Each share of Merger Sub Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into one
validly issued, fully paid and nonassessable share of Common Stock,
par value $0.60 per share, of the Surviving
Corporation.
(d)
Rights
of Certificate Holders
. Upon
conversion thereof in accordance with this
Section
7
, all shares of Company Common
Stock shall no longer be outstanding and shall cease to exist, and
each holder of a certificate representing any such shares of
Company Common Stock shall cease to have any rights with respect to
such shares of Company Common Stock except, in all cases, as set
forth in
Section 8
herein. In addition, each outstanding
book-entry that, immediately prior to the Effective Time, evidenced
shares of Company Common Stock, shall, from and after the Effective
Time, be deemed and treated for all corporate purposes to evidence
the ownership of the same number of shares of HoldCo Common
Stock.
8.
CERTIFICATES.
At and after the Effective Time until
thereafter surrendered for transfer or exchange in the ordinary
course, each outstanding certificate which immediately prior
thereto represented shares of Company Common Stock, shall be deemed
for all purposes to evidence ownership of and to represent the
shares of HoldCo Common Stock, as applicable, into which the shares
of Company Common Stock, represented by such certificate, have been
converted as herein provided and shall be so registered on the
books and records of HoldCo and its transfer agent. If any
certificate that prior to the Effective Time represented shares of
Company Common Stock shall have been lost, stolen or destroyed,
then, upon the making of an affidavit of such fact by the person or
entity claiming such certificate to be lost, stolen or destroyed
and the providing of an indemnity by such person or entity to
HoldCo, in form and substance reasonably satisfactory to HoldCo,
against any claim that may be made against it with respect to such
certificate, HoldCo shall issue to such person or entity, in
exchange for such lost, stolen or destroyed certificate,
certificated shares representing the applicable shares of HoldCo
Common Stock, in accordance with the procedures set forth in the
preceding sentence.
9.
ASSUMPTION OF EQUITY PLANS AND
AWARDS.
At the Effective Time,
pursuant to this Merger Agreement and an Omnibus Amendment entered
into between HoldCo and the Company on or about the date hereof
(the “
Compensation Plan
Amendment
”), the Company
will transfer to HoldCo, and HoldCo will assume, sponsorship of the
Company’s 2007 Incentive Compensation Plan, as amended, and
2017 Incentive Compensation Plan (collectively, the
“
Equity
Plans
”), along with all
of the Company’s rights and obligations under the Equity
Plans, and all rights of the parties thereto and the participants
therein to acquire shares of Company Common Stock on the terms and
conditions of the Equity Plans, the award agreements and such other
agreements will be converted on a one-for-one basis into rights to
acquire shares of HoldCo Common Stock, in each case, to the extent
set forth in, and in accordance with, the terms of such Equity
Plans, awards and other agreements. From and after the Effective
Time and pursuant to the terms of the Compensation Plan Amendment,
HoldCo shall have all amendment and administrative authority with
respect to such Equity Plans, awards and agreements to the extent
that the Company had such authority immediately prior to the
Effective Time.
10.
HOLDCO SHARES.
Prior to the Effective Time, the
Company and HoldCo shall take any and all actions as are necessary
to ensure that each share of capital stock of HoldCo that is owned
by the Company immediately prior to the Effective Time shall be
cancelled and cease to be outstanding at the Effective Time, and no
payment shall be made therefor, and the Company, by execution of
this Agreement, agrees to forfeit such shares and relinquish any
rights to such shares.
11.
NO APPRAISAL RIGHTS.
In accordance with the MCED, no
appraisal rights shall be available to any holder of shares of
Company Common Stock in connection with the
Merger.
12.
CONTRACTS AND
AGREEMENTS.
Except as set forth
in
Section 9
of
this Agreement, any and all contracts and agreements with the
Company will not be transferred to the surviving issuer or HoldCo
and will stay with the Company as the Surviving Corporation in the
Merger.
13.
SUCCESSOR ISSUER.
The parties hereto intend that HoldCo
be deemed a successor issuer of the Company in accordance with Rule
12g-3 under the Securities Exchange Act of 1934, as amended, and
Rule 414 under the Securities Act of 1933, as amended. At or after
the Effective Time, HoldCo shall file (i) an appropriate report on
Form 8-K describing the Merger and (ii) appropriate amendments to
any Registration Statements of the Company.
14.
TERMINATION.
This Agreement may be terminated, and
the Merger and the other transactions provided for herein may be
abandoned, whether before or after the adoption of this Agreement
by the sole stockholder of Merger Sub, at any time prior to the
Effective Time, by action of the board of directors of the Company.
In the event of termination of this Agreement, this Agreement shall
forthwith become void and have no effect, and neither the Company,
HoldCo, Merger Sub nor their respective stockholders, directors or
officers shall have any liability with respect to such termination
or abandonment.
15.
AMENDMENTS.
At any time prior to the Effective Time, this
Agreement may be supplemented, amended or modified, whether before
or after the adoption of this Agreement by the sole stockholder of
Merger Sub, by the mutual consent of the parties to this Agreement,
or by action taken by their respective boards of directors;
provided, however, that, no amendment shall be effected subsequent
to the adoption of this Agreement by the sole stockholder of Merger
Sub that by law requires further approval or authorization by the
sole stockholder of Merger Sub or the stockholders of the Company
without such further approval or authorization. No amendment of any
provision of this Agreement shall be valid unless the same shall be
in writing and signed by all of the parties
hereto.
16.
GOVERNING LAW.
This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Nevada,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws.
17.
COUNTERPARTS.
This Agreement may be executed in one
or more counterparts, each of which when executed shall be deemed
to be an original but all of which shall constitute one and the
same agreement.
18.
ENTIRE AGREEMENT.
This Agreement, including the
documents and instruments referred to herein, constitutes the
entire agreement and supersedes all other prior agreements and
undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter
hereof.
19.
SEVERABILITY.
The provisions of this Agreement are
severable, and in the event any provision hereof is determined to
be invalid or unenforceable, such invalidity or unenforceability
shall not in any way affect the validity or enforceability of the
remaining provisions hereof.
(Signature Page Follows)
IN
WITNESS WHEREOF, the Company, HoldCo and Merger Sub have caused
this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
|
BK TECHNOLOGIES, INC.
Name: Timothy A. Vitou
Title: President
BK TECHNOLOGIES CORPORATION
By:
/s/ Timothy A.
Vitou
Name: Timothy A. Vitou
Title: President
BK MERGER SUB, INC.
By:
/s/ Timothy A.
Vitou
Name: Timothy A. Vitou
Title: President
|
ARTICLES OF INCORPORATION
OF
BK TECHNOLOGIES CORPORATION
I, the
person hereinafter named as incorporator, for the purpose of
associating to establish a corporation, under the provisions and
subject to the requirements of Title 7, Chapter 78 of Nevada
Revised Statutes, and the acts amendatory thereof, and hereinafter
sometimes referred to as the General Corporation Law of the State
of Nevada, do hereby adopt and make the following Articles of
Incorporation:
FIRST
: The name of the corporation
(hereinafter called the corporation) is:
BK
Technologies Corporation
SECOND
: The name of the
corporation’s resident agent in the State of Nevada is
Registered Agent Solutions, Inc., and the street address of the
said resident agent where process may be served on the corporation
is 4625 West Nevso Drive, Suite 2, Las Vegas, Nevada 89103. The
mailing address and the street address of the said resident agent
are identical.
THIRD
: The corporation is incorporated
under the General Corporate Law of the State of Nevada and shall
have the unlimited power to engage in and to do any lawful act
concerning any or all lawful business for which corporations may be
formed under the General Corporate Law of the State of
Nevada.
FOURTH
: The corporation shall have
perpetual existence.
FIFTH
: The aggregate number of shares
which the corporation shall have authority to issue is 20,000,000
shares of common stock, par value $0.60 per share, and 1,000,000
shares of preferred stock, par value $1.00 per share. Any and all
shares of stock may be issued, reissued, transferred or granted by
the board of directors, as the case may be, to persons,
corporations, and associations, and for such lawful
consideration, and
on such terms, as the board of directors shall have the authority
to issue pursuant to the Nevada Revised Statutes and the Bylaws of
the corporation. The board of directors shall have the authority to
set, by resolution, the particular designations, preferences and
the relative, participating, optional, voting or other rights and
qualifications, limitations or restrictions of any class of stock
or any series of stock within any class of stock issued by this
corporation.
No
holder of any of the shares of any class of the corporation shall
be entitled as of right to subscribe for, purchase, or otherwise
acquire any shares of any class of the corporation which the
corporation proposes to issue or any rights or options which the
corporation proposes to grant for the purchase of any shares of any
class of the corporation or for the purchase of any shares, bonds,
securities, or obligations of the corporation which are convertible
into or exchangeable for, or which carry any rights, to subscribe
for, purchase, or otherwise acquire shares of any class of the
corporation; and any and all of such rights and options may be
granted by the board of directors to such persons, firms,
corporations, and associations, and for such lawful consideration,
and on such terms, as the board of directors in its discretion may
determine, without first offering the same, or any thereof, to any
said holder.
SIXTH
: The name and the post office box or street
address, either residence or business, of the incorporator signing
these Articles of Incorporation are as follows:
NAME
|
|
ADDRESS
|
William
P. Kelly
|
|
7100
Technology Drive
West
Melbourne, Florida 32904
|
SEVENTH
: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted by
the General Corporation Law of the State of Nevada, as the same may
be amended and supplemented.
EIGHTH
: The corporation shall, to the fullest extent
permitted by the General Corporation Law of the State of Nevada, as
the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said Law from
and against any and all of the expenses, liabilities, or other
matters referred to in or covered by said Law, and the
indemnification provided for herein shall not be deemed exclusive
of any other rights to which those indemnified may be entitled
under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a
person.
NINTH
: The corporation reserves the right to amend,
alter, change, or repeal any provision contained in these Articles
of Incorporation in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
IN
WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation on March 20, 2019.
|
INCORPORATOR
/s/ William P.
Kelly
William
P. Kelly
|
BK TECHNOLOGIES CORPORATION,
a Nevada corporation
Bylaws
(Effective March 20, 2019)
ARTICLE I
SHAREHOLDERS
1.1.1
Place
. Meetings
of the shareholders shall be held at such place as may be
designated by the board of directors.
1.1.2
Annual
Meeting
. Unless otherwise fixed by the board of directors,
an annual meeting of the shareholders, for the election of
directors and for other business as may properly be brought before
the meeting, shall be held at 10:00 a.m. local time on the 4th
Thursday of April in each year or, if that day is a legal holiday,
on the next following business day.
1.1.3
Special
Meetings
. Special meetings of the shareholders may be called
at any time by the president, the board of directors or the holders
of at least one-fifth of the outstanding shares of stock of the
corporation entitled to vote at the meeting.
1.1.4
Notice
. Written
notice of the time and place of all meetings of shareholders and of
the general nature of the business to be transacted at each special
meeting of shareholders shall be given to each shareholder entitled
to vote at the meeting at least ten (10) days before the date of
the meeting unless a greater period of notice is required by law in
a particular case.
1.1.5
Quorum
. The
presence in person or by proxy of the holders of a majority of the
outstanding shares of stock of the corporation entitled to vote on
a particular matter shall constitute a quorum for the purpose of
considering such matter. If a quorum is not present no business
shall be transacted except to adjourn to a future
time.
1.1.6
Adjourned
Meetings
. Those shareholders entitled to vote who attend a
meeting called for the election of directors that has been
previously adjourned for lack of a quorum, although less than a
quorum as fixed in these bylaws, shall nevertheless constitute a
quorum for the purposes of electing directors. Those shareholders
entitled to vote who attend a meeting of shareholders that has been
previously adjourned for one or more periods aggregating at least
fifteen (15) days because of an absence of a quorum, although then
less than a quorum as fixed in these by-laws, shall nevertheless
constitute a quorum for the purpose of acting upon any matter set
forth in the notice of the meeting if the notice states that those
shareholders who attend the adjourned meeting shall nevertheless
constitute a quorum for purpose of acting upon the
matter.
1.1.7
Participation
.
One or more shareholders may participate in a
shareholders
’
meeting by
means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear
each other.
1.1.8
Voting
Rights
. Except as otherwise provided herein, the articles of
incorporation or by
-laws,
every shareholder shall have the right at every
shareholders
’
meeting to
one vote for every share standing in his name on the books of the
corporation which is entitled to vote at such meeting. Every
shareholder may vote either in person or by proxy.
1.2
Advance Notice
Provisions for Business and Nominations at
Meetings
.
1.2.1 At
an annual meeting of shareholders, only such business shall be
conducted as has been properly brought before the meeting in
accordance with this Section 1.2. To be properly brought before the
annual meeting, business and nominations must be: (a) specified in
the notice of meeting (or in any supplement thereto) given by or at
the direction of the board of directors, (b) otherwise properly
brought before the meeting by or at the direction of the board of
directors, or (c) otherwise properly brought before the annual
meeting by any shareholder of the corporation who (i) is a
shareholder of record on both (A) the date of the giving of the
notice provided for in this Section 1.2 and (B) the record date for
the determination of shareholders entitled to vote at such annual
meeting, and (ii) complies with the notice procedures set forth in
this Section 1.2.
1.2.2 In
addition to any other applicable requirements, for nominations or
other business to be properly brought before an annual meeting by a
shareholder, such shareholder must have given timely notice thereof
in proper written form to the secretary of the corporation and such
other business must be a proper subject of shareholder
action.
(a) To
be timely, a written notice of the intent of a shareholder to make
a nomination of a person for election as a director or to bring any
other matter before the annual meeting shall be received at the
principal executive offices of the corporation not earlier than the
close of business on the 180th day and not later than the close of
business on the 120th day prior to the first anniversary of the
date on which the corporation first mailed its proxy materials for
the preceding year
’
s
annual meeting of shareholders. However, if the date of the annual
meeting is advanced more than 30 days prior to or delayed by more
than 30 days after the anniversary date of the previous
year
’
s annual meeting,
notice by the shareholder must be so received by the secretary not
earlier than the close of business on the 120th day prior to such
annual meeting and not later than the close of business on the
later of the 75th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such
annual meeting is first made by the corporation.
(b) To
be in proper written form every such notice by a shareholder shall
set forth as to each nominee or matter such shareholder proposes to
bring before the annual meeting:
(i) as
to each person whom the shareholder proposes to nominate for
election or reelection as a director (each, a
“
proposed nominee
”
): (A) the name, age, business
address and residence address of the proposed nominee; (B) the
principal occupation or employment of the proposed nominee; (C) the
class or series and number of shares of capital stock of the
corporation, if any, which are owned beneficially and of record by
the proposed nominee; (D) any other information regarding each
proposed nominee proposed by such shareholder as would be required
to be included in solicitations of proxies for elections of
directors in an election contest (even if an election contest is
not involved), or is otherwise required pursuant to Regulation 14A
of the Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”
), and the rules and regulations
promulgated thereunder, (including such person
’
s written consent to being named in
the proxy statement, if any, as a nominee and to serving as a
director if elected); and (E) a description of all arrangements or
understandings between such shareholder and each proposed nominee
and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by
the shareholder;
(ii) as
to any other business that the shareholder proposes to bring before
the annual meeting: (A) a description of the matter, including the
text of the proposal of business (including the text of any
resolutions proposed for consideration and in the event that such
business includes a proposal to amend the bylaws of the
corporation, the language of the proposed amendment); (B) the
reasons for conducting such business at the annual meeting; and (C)
any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made;
and
(iii) as
to the shareholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal of other business
is made: (A) the name and address of such shareholder, as they
appear on the corporation
’
s stock transfer books, and the name
and address of such beneficial owner; (B) the class or series and
number of shares of capital stock of the corporation which are
owned beneficially and of record by such shareholder and such
beneficial owner as of the date of the notice; and (C) a
representation that such shareholder intends to vote such stock at
such meeting, and that such shareholder intends to appear in person
or by proxy at the meeting to make the nomination or propose the
business specified in the notice.
1.2.3 If
a shareholder is entitled to vote only for a specific class or
category of directors at a meeting of the shareholders, such
shareholder
’
s right to
nominate one or more persons for election as a director at the
meeting shall be limited to such class or category of
directors.
1.2.4 In
the event of a special meeting of shareholders at which directors
are to be elected, any shareholder entitled to vote may nominate a
person or persons for election as director if such shareholder
qualifies under Section 1.2.1 and such shareholder
’
s written notice is prepared in
accordance with Section 1.2.2(b) and is received by the secretary
not later than the close of business on the 10th day following the
day on which public announcement of the special meeting is first
made by the corporation.
1.2.5 At
a meeting of shareholders, the chairman of the board shall declare
out of order and disregard any nomination or other proposal not
made in compliance with the foregoing procedures.
1.2.6 In
no event shall the adjournment or postponement of an annual or
special meeting of the shareholders, or any announcement thereof,
commence a new period for the giving of notice under this Section
1.2.
1.2.7 Notwithstanding
the foregoing provisions of this Section 1.2, unless otherwise
required by law, if the shareholder of record (or a qualified
representative of such shareholder) does not appear at the annual
or special meeting to present a nomination or other matter of
business, such nomination or business shall be disregarded,
notwithstanding that proxies in respect of such vote may have been
received by the corporation.
1.2.8 As
used in these bylaws, the terms
“
owned beneficially
”
and
“
beneficial owner
”
means all shares which such person
is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5
promulgated under the Exchange Act. For purposes of these bylaws, a
matter shall be deemed to have been
“
publicly announced
”
if such matter is disclosed in a
press release reported by the Dow Jones News Service, the
Associated Press or a comparable national news service or in a
document publicly filed by the corporation with the Securities and
Exchange Commission.
1.2.9 Notwithstanding
the foregoing provisions of this Section 1.2, a shareholder shall
also comply with all applicable requirements of the Exchange Act
and the rules and regulations thereunder with respect to the
matters set forth in this Section 1.2. Nothing in this Section 1.2
shall be deemed to affect any rights of shareholders to request
inclusion of proposals in the corporation
’
s proxy statement pursuant to Rule
14a-8 under the Exchange Act nor grant any shareholders a right to
have any nominee included in the corporation
’
s proxy statement.
ARTICLE II
DIRECTORS
2.1
Number and
Term
. Subject to the provisions of applicable law, the board
of directors shall have authority to (a) determine the number of
directors to constitute the board, and (b) fix the terms of office
of the directors and classify the directors with respect to the
time for which they shall severally hold office. Except as
otherwise fixed by the board of directors under the authority given
above, the number of directors shall be five (5) and each director
elected to the board shall hold office until the next annual
meeting of the shareholders unless he sooner resigns or is removed
or disqualified.
2.2
Powers
. All
corporate powers shall be exercised by or under authority of, and
the business and affairs of the corporation shall be managed under
the direction of, the board of directors.
2.3
Meetings
.
2.3.1
Place
. Meetings
of the board of directors shall be held at such place as may be
designated by the board or in the notice of the
meeting.
2.3.2
Regular
Meetings
. Regular meetings of the board of directors shall
be held at such times as the board may designate. Notice of regular
meetings need not be given.
2.3.3
Special
Meetings
. Special meetings of the board of directors may be
called at any time by the president and shall be called by him on
the written request of one-third of the directors. Notice (which
need not be written) of the time and place of each special meeting
shall be given to each director at least two days before the
meeting.
2.3.4
Quorum
. A
majority of all the directors in office shall constitute a quorum
for the transaction of business at any meeting and except as
otherwise provided herein the acts of a majority of the directors
present at any meeting at which a quorum is present shall be the
acts of the board of directors.
2.3.5
Participation
.
One or more directors may participate in a meeting of the board or
a committee of the board by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other.
2.4
Vacancies
.
Vacancies in the board of directors shall be filled by vote of a
majority of the remaining members of the board.
2.5
Committees
. The
board of directors may by resolution adopted by a majority of the
whole board designate one or more committees, each committee to
consist of two or more directors and such alternate members (also
directors) as may be designated by the board. To the extent
provided in such resolution, any such committee shall have and
exercise the powers of the board of directors. Unless otherwise
determined by the board, in the absence or disqualification of any
member of a committee the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another director to
act at the meeting in the place of any such absent or disqualified
member.
2.6
Limitation
on Directors’ Liability
. Except as otherwise provided
by law, a director shall not be personally liable for monetary
damages as such for any action taken, or failure to take any
action, unless:
2.6.1
The director has breached or failed to perform the duties of his
office as provided in the Nevada General Corporation Law (the
“
NGCL
”
); and
2.6.2
The breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
ARTICLE III
OFFICERS
3.1
Election
. The
board of directors shall elect a president, treasurer, secretary
and such other officers as it deems advisable. Any number of
offices may be held by the same person.
3.2
Authority,
Duties and Compensation
. The officers shall have such
authority and perform such duties and serve for such compensation
as may be determined by or under the direction of the board of
directors. Except as otherwise provided by the board (a) the
president shall be the chief executive officer of the corporation,
shall have general supervision over the business and operations of
the corporation, may perform any act and execute any instrument for
the conduct of such business and operations and shall preside at
all meetings of the board and shareholders, (b) the other officers
shall have the duties usually related to their offices, and (c) the
vice president (or vice presidents in the order determined by the
board) shall in the absence of the president have the authority and
perform the duties of the president.
ARTICLE IV
INDEMNIFICATION
4.1
Right to
Indemnification
.
4.1.1
Third
Party Claims
. The corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative (other than an
action by or in the right of the corporation), by reason of the
fact that he is or was a representative of the corporation, or is
or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for
profit or not-for-profit, partnership, joint venture, trust or
other enterprise (including employee benefit plans), against
expenses (including attorneys
’
fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with the action or proceeding if he 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 proceedings, had no reasonable cause to believe his
conduct was unlawful. The termination of any action or proceeding
by judgment, order, settlement or conviction upon a plea
nolo
contendere
or its equivalent shall not of itself create a
presumption that the person did not act in good faith and in a
manner that he reasonably believed to be in, or not opposed to, the
best interest of the corporation and, with respect to any criminal
proceeding, had reasonable cause to believe that his conduct was
unlawful.
4.1.2
Derivative
Actions
. The corporation shall indemnify any person who was
or is a party, or is threatened to be made a party, to any
threatened, pending or completed action by or in the right of the
corporation to procure judgment in its favor by reason of the fact
that he is or was a representative of the corporation or is or was
serving at the request of the corporation as a representative of
another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys
’
fees) actually and reasonably
incurred by him in connection with the defense or settlement of the
action if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interest of the
corporation; provided that no indemnification shall be made under
this section in respect of any claim, issue or matter as to which
the person has been adjudged to be liable to the corporation unless
and only to extent that a court of competent jurisdiction
determines that, despite the adjudication of liability but in view
of the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for the expenses that such court
deems proper.
4.2
Procedure
for Effecting Indemnification
. Unless ordered by a court,
any indemnification made under Sections 4.1.1 or 4.1.2 shall be
made by the corporation only as authorized in this specific case
upon a determination that indemnification of the representative is
proper in the circumstances because he has met the applicable
standard of conduct set forth in those sections. Such determination
shall be made:
4.2.1
By the Board of Directors by a majority vote of a quorum consisting
of directors who are not parties to the action or
proceeding;
4.2.2
If such a quorum is not obtainable or if obtainable and a majority
vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion;
4.2.3
By the shareholders; or
4.2.4
In such other manner, if any, as shall be permitted by
NGCL.
4.3
Advancement of
Expenses
. Expenses (including attorneys
’
fees) incurred in defending any
action or proceeding referred to in this Article may be made by the
corporation in advance of the final disposition of the action or
proceeding upon receipt of an undertaking by or on behalf of the
representative to repay the amount if it is ultimately determined
that he is not entitled to be indemnified by the corporation as
authorized in this Article or otherwise.
ARTICLE V
SHARES
5.1
Share
Certificates
. Every shareholder of record shall be entitled
to a share certificate representing the shares held by him. Every
share certificate shall bear the corporate seal (which may be a
facsimile) and the signature of the president or a vice president
and the secretary or an assistant secretary.
5.2
Transfers
.
Transfers of share certificates and the shares represented thereby
shall be made on the books of the corporation only by the
registered holder or by duly authorized attorney. Transfer shall be
made only on surrender of the share certificate or
certificates.
ARTICLE VI
AMENDMENTS
Except
as otherwise provided by applicable law, these By-Laws may be
amended at any regular or special meeting of the board of directors
by the vote of a majority of all the directors in office or at any
annual or special meeting of shareholders by the vote of the
holders of a majority of the outstanding stock entitled to vote.
Notice of any such meeting of shareholders shall set forth the
proposed change or a summary thereof.
ARTICLE VII
NEVADA ACQUISITION OF CONTROLLING INTEREST ACT
Pursuant to NRS
§
78.378, the Corporation
shall not be subject to the provisions of Nevada Revised Statutes
Sections 78.378 to 78.3793, inclusive (Acquisition of Controlling
Interest), and specifically that the provisions of NRS
§§
78.378 to 78.3793 do not apply
to the Corporation or to an acquisition of a controlling interest
by existing or future stockholders.
OMNIBUS AMENDMENT TO
INCENTIVE COMPENSATION PLANS
March 28, 2019
WHEREAS, BK Technologies, Inc., a Nevada
corporation (the “
Company
”),
has entered into an Agreement and Plan of Merger, dated March 28,
2019, by and among the Company, BK Technologies Corporation, Nevada
corporation (“
New
BK
”), and BK Merger Sub,
Inc., a Nevada corporation (“MergerSub”), pursuant to
which MergerSub shall be merged with and into the Company, with the
Company surviving the merger, and New BK will become the successor
issuer to the Company pursuant to and under the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the publicly-traded parent company of the Company (the
“
Reorganization
”);
WHEREAS,
in connection with the Reorganization, each share of the
Company’s common stock, par value $0.60 per share, will be
exchanged for a share of New BK’s common stock, par value
$0.60 per share;
WHEREAS, the Company intends for the sponsorship
of the Company’s 2007 Incentive Compensation Plan (as
amended, the “
2007
Plan
”) and the 2017
Incentive Compensation Plan (the “
2017
Plan
” and, together with
the 2007 Plan, the “
Plans
”)
to transfer to New BK, effective as of the date of, and contingent
upon, the consummation of the Reorganization (the
“
Effective
Time
”);
and
WHEREAS, in connection with the Reorganization, it
is necessary to amend, pursuant to this omnibus amendment (this
"
Amendment"
), each
of the Plans, each of the stock option agreements pursuant to which
options to purchase common stock of the Company have been granted
and are outstanding pursuant to one of the Plans (collectively, the
“
Option
Agreements
”), each of the
restricted share agreements pursuant to which shares of common
stock of the Company which are subject to restrictions have been
granted and are outstanding pursuant to one of the Plans
(collectively, the “
Restricted Share
Agreements
”), and each of
the restricted share unit agreements pursuant to which restricted
share units have been granted and are outstanding pursuant to one
of the Plans (collectively, the “
RSU
Agreements
”).
NOW,
THEREFORE, each of the Plans, Option Agreements, Restricted Share
Agreements and RSU Agreements are hereby amended as follows,
effective as of the Effective Time:
1.
All
references to “RELM Wireless Corporation,” “Relm
Wireless Corporation” or “BK Technologies, Inc.”
contained in each of the Plans, Option Agreements, Restricted Share
Agreements and RSU Agreements are hereby changed to “BK
Technologies Corporation,” including references in the name
of each of the Plans.
2.
New
BK hereby assumes all of the obligations of the Company under each
of the Plans, respectively, and any awards granted thereunder that
are outstanding as of the Effective Time pursuant to the Option
Agreements, Restricted Share Agreements and RSU Agreements are
hereby deemed transferred to New BK.
3.
In
connection with the Reorganization, each share of the
Company’s common stock reserved for issuance under the Plans
or issued, or issuable, pursuant to awards that are outstanding as
of the Effective Time shall be converted into one share of New
BK’s common stock.
4.
Each of the Plans is hereby amended to provide
that the Board of Directors of New BK (the
“
New
Board
”) and the
Compensation Committee of the New Board shall each have the
authority to amend or terminate the Plan, and the Compensation
Committee (the “
Old
Committee
”) of the Board
of Directors of the Company (the “
Old
Board
”) shall no longer
have such authority.
5.
None
of the Company, the Old Board or the Old Committee shall have any
further obligations under the Plans and the Awards granted
thereunder.
6.
Except
as explicitly set forth in this Amendment, each Plan, and all
outstanding awards granted thereunder, shall remain in full force
and effect.
7.
In
all other respects, the Plans, as amended, are hereby ratified and
confirmed and shall remain in full force and effect.
8.
The Company
and New BK agree to take any such further actions as may be
reasonably necessary to carry out the purposes and intent of this
Amendment.
[
Remainder
of page intentionally left blank.
]
IN
WITNESS WHEREOF, the undersigned has duly executed this Omnibus
Amendment to Incentive Compensation Plans as of the date first
written above.
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BK TECHNOLOGIES, INC.
/s/ William P. Kelly
William
P. Kelly
Executive
Vice President and Chief Financial Officer
BK TECHNOLOGIES CORPORATION
/s/ William P. Kelly
William
P. Kelly
Executive
Vice President and Chief Financial Officer
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BK Technologies Corporation
2017 Incentive Compensation Plan
STOCK OPTION AGREEMENT
All
capitalized terms used in this Stock Option Agreement, but not
otherwise defined herein, shall have the meanings ascribed to them
in the BK Technologies Corporation 2017 Incentive Compensation Plan
(the “
Plan
”).
I.
NOTICE OF STOCK OPTION
GRANT
Optionholder Name:
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Address:
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The
Optionholder (as designated above) has been granted an Option to
purchase Shares of the Company, subject to the terms and conditions
of the Plan and this Option Agreement, as follows:
Date of Grant:
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Type of Grant:
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Exercise Price per Share:
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Total Number of Shares Granted:
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Total Exercise Price:
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Type of Option:
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Expiration Date:
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Vesting Schedule:
This Option shall be vested
based on the Grantee’s Continuous Service according to the
following vesting schedule:
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Termination Period:
The term of this Option shall
end as provided in Section 3 of the Stock Option
Agreement.
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II.
STOCK OPTION AGREEMENT
1.
Grant of Option.
The
Company hereby grants to the Optionholder named in the Notice of
Stock Option Grant (the “
Optionholder
”), an option (the
“
Option
”) to
purchase the number of Shares set forth in the Notice of Stock
Option Grant, at the exercise price per Share set forth in the
Notice of Stock Option Grant (the “
Exercise Price
”), and subject to
the terms and conditions of the Plan, which is incorporated herein
by reference. Subject to Section 22(d) of the Plan, in
the event of a conflict between the terms and conditions of
the Plan and this Stock Option Agreement (the “
Option Agreement
”), the terms and
conditions of the Plan shall prevail.
(a)
Right to
Exercise
. This Option shall be exercisable during
its term in accordance with the applicable provisions of the Plan
and this Option Agreement. Notwithstanding the vesting schedule set
forth above, (i) in the event of a Change in Control, the
exercisability of this Option will be subject to the applicable
provisions of Section 21 of the Plan; and (ii) the Committee may,
in its sole discretion, provide for the full or partial
acceleration of vesting and exercisability of this Option in
connection with the termination of the Optionholder’s
Continuous Service for any reason prior to a vesting date,
including, but not limited to, termination of Continuous Service as
a result of the Optionholder’s death or “
Disability
”, defined as the
Optionholder’s permanent and total disability (within the
meaning of Section 22(e) of the Code), as determined by a medical
doctor satisfactory to the Committee.
(b)
Method of
Exercise
. This Option shall be exercisable by
delivery of an exercise notice in the form attached as
Exhibit A
(the
“
Exercise
Notice
”) which shall state the election to exercise
the Option, the number of Shares with respect to which the Option
is being exercised, and such other representations and agreements
as may be required by the Company.
The
Option shall be deemed exercised when the Company receives
(i) written or electronic notice of exercise (in accordance
with this Option Agreement) from the Optionholder (or other person
entitled to exercise the Option); (ii) full payment for the
Shares with respect to which the Option is exercised; (iii) payment
of any required tax withholding; and (iv) any other documents
required by this Option Agreement or the Exercise
Notice. Full payment may consist of any consideration
and method of payment permitted by this Option
Agreement. Shares issued upon exercise of an Option
shall be issued in the name of the Optionholder or, if requested by
the Optionholder and permitted under applicable law, in the name of
the Optionholder and his or her spouse. Until the Shares
are issued (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company),
no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to the Shares, notwithstanding
the exercise of the Option. The Company shall issue (or
cause to be issued) such Shares promptly after the Option is
exercised. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the
Shares are issued, except as provided in Section 16 of the
Plan.
Exercise of this
Option in any manner shall result in a decrease in the number of
Shares thereafter available for sale under the Option, by the
number of Shares as to which the Option is exercised.
(c)
Legal Compliance
. No Shares
shall be issued pursuant to the exercise of this Option unless such
issuance and such exercise complies with applicable laws and the
requirements of any governmental or regulatory agency or stock
exchange. Assuming such compliance, for income tax
purposes the Shares shall be considered transferred to the
Optionholder on the date on which the Option is exercised with
respect to such Shares.
3.
Term
. Optionholder
may not exercise the Option before the commencement of its term or
after its term expires. During the term of the Option,
Optionholder may only exercise the Option to the extent
vested. The term of the Option commences on the Date of
Grant and, except as otherwise provided pursuant to Section 21 of
the Plan in connection with a Change in Control, expires upon the
earliest
of the following:
(a)
With respect to the unvested portion
of the Option, upon termination of Optionholder’s Continuous
Service;
(b)
With respect to the vested portion of
the Option, three (3) months after the termination of
Optionholder’s Continuous Service for any reason other than
Optionholder’s death or Disability;
(c)
With respect to the vested portion of
the Option, twelve (12) months after the termination of
Optionholder’s Continuous Service by reason of
Optionholder’s death or Disability; or
(d)
The day before the tenth (10th)
anniversary of the Date of Grant.
4.
Method of
Payment
. Payment of the aggregate Exercise Price
shall be, to the extent permitted by applicable law, any
combination of:
(a)
cash or check;
(b)
subject to the Company’s
approval at the time of exercise, consideration received by the
Company under a formal cashless exercise program adopted by the
Company in connection with the Plan; or
(c)
surrender to the Company of other
Shares which, (i) in the case of Shares acquired from the
Company, either directly or indirectly, have been owned by the
Optionholder for such period of time on the date of surrender such
that will avoid an expense for financial accounting purposes, and
(ii) have a Fair Market Value on the date of surrender equal to the
aggregate Exercise Price of Shares being acquired pursuant to
exercise of this Option. Shares from the
portion of this Option to be exercised may be used to pay the
exercise price to the extent that such use will not increase the
compensation expense related to this Option for financial
accounting purposes.
5.
Non-Transferability of Option
.
This Option is transferable by will or by the laws of descent and
distribution. This Option also may be transferable to
Optionholder’s “family member” upon written
consent of the Company if the transfer is not for value and at the
time of transfer, a Form S-8 registration statement under the
Securities Act of 1933, as amended (the “
Securities Act
”) is available for
the exercise of the Option and the subsequent resale of the
underlying Shares after such transfer. In addition,
Optionholder may, by delivering written notice to the Company, in a
form provided by or otherwise satisfactory to the Company,
designate a third party who, in the event of the death of the
Optionholder, shall thereafter be entitled to exercise the
Option. For purposes hereof, the term “family
member” shall have the meaning assigned to it in the general
instructions of a Form S-8 registration statement (or any successor
form adopted under the Securities Act).
6.
Tax Obligations
.
(a)
Tax
Consequences
. Optionholder has reviewed with
Optionholder’s own tax advisors the federal, state, local and
foreign tax consequences of this Option. Optionholder is
relying solely on such advisors and not on any statements or
representations of the Company or any of its
agents. Optionholder understands that Optionholder (and
not the Company) shall be responsible for any tax liability that
may arise as a result of the transactions contemplated by this
Option Agreement and the Plan.
(b)
Withholding
Taxes
. Optionholder may satisfy any federal,
state or local tax withholding obligation relating to the exercise
or acquisition of Shares under this Option by any of the following
means (in addition to the Company’s right to withhold from
any compensation paid to the Optionholder by the Company) or by a
combination of such means: (i) tendering a cash payment;
(ii) authorizing the Company to withhold Shares from the Shares
otherwise issuable to Optionholder as a result of the exercise or
acquisition of stock under this Option; provided, however, that no
Shares are withheld with a value exceeding the amount of tax
required to be withheld by law based on the maximum statutory tax
rates in the applicable taxing jurisdictions; or (iii) delivering
to the Company owned and unencumbered
Shares. Optionholder agrees to make appropriate
arrangements with the Company for the satisfaction of all federal,
state, local and foreign income and employment tax withholding
requirements applicable to the Option
exercise. Optionholder acknowledges and agrees that the
Company may refuse to honor the exercise and refuse to deliver
Shares if such withholding amounts are not delivered at the time of
exercise.
7.
Entire Agreement; Governing
Law
. The Plan and this Option Agreement
constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionholder with
respect to the subject matter hereof, and may not be modified
adversely to the Optionholder’s interest except by means of a
writing signed by the Company and Optionholder. This
Option Agreement shall be construed and enforced under the laws of
the State of Nevada, without regard to choice of law provisions
thereof.
8.
No Guarantee of Continued
Service
. Optionholder acknowledges and agrees
that nothing in this Option Agreement or the Plan confer upon
Optionholder any right to continued employment or other service
with the Company or any Subsidiary or affiliate.
9.
Data Privacy
. In
order to administer the Plan, the Company may process personal data
about the Optionholder. Such data includes, but is not limited to
the information provided in this Option Agreement and any changes
thereto, other appropriate personal and financial data about the
Optionholder such as home address and business addresses and other
contact information and any other information that might be deemed
appropriate by the Company to facilitate the administration of the
Plan. By signing this Option Agreement, the Optionholder gives
explicit consent to the Company to process any such personal data.
The Optionholder also gives explicit consent to the Company to
transfer any such personal data outside the country in which the
Optionholder works or is employed, including, if the Optionholder
is not a U.S. resident, to the United States, to transferees that
shall include the Company and other persons who are designated by
the Company to administer the Plan.
10.
Plan and Prospectus
Delivery
. By signing this Option Agreement, the Optionholder
acknowledges that a copy of the Plan, the Plan Summary and
Prospectus, and the Company's most recent Annual Report and Proxy
Statement (the “
Prospectus
Information
”) either have been received by or provided
to the Optionholder, and the Optionholder consents to receiving the
Prospectus Information electronically, or, in the alternative,
agrees to contact the Chief Financial Officer of the Company to
request a paper copy of the Prospectus Information at no charge.
The Optionholder also represents that he or she is familiar with
the terms and provisions of the Prospectus Information and hereby
accepts the Option on the terms and subject to the conditions set
forth herein and in the Plan. The Optionholder hereby agrees to
accept as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions arising under
the Plan or this Option. The Optionholder further agrees to notify
the Company upon any change in the residence address indicated
below.
IN
WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the Date of Grant.
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BK TECHNOLOGIES CORPORATION
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EXHIBIT A
BK Technologies Corporation
2017 INCENTIVE COMPENSATION PLAN
EXERCISE NOTICE
BK
Technologies Corporation
7100
Technology Drive
West
Melbourne, Florida 32904
Attention: Chief
Financial Officer
1.
Exercise of
Option
. Effective as of today, _____________,
20__, the undersigned (“
Optionholder
”) hereby elects to
exercise Optionholder’s option to purchase _________ shares
of the Common Stock (the “
Shares
”) of BK Technologies
Corporation (the “
Company
”) under and pursuant to
the Company’s 2017 Incentive Compensation Plan (the
“
Plan
”) and the
Stock Option Agreement dated ____________, 20__ (the
“
Option
Agreement
”).
2.
Delivery of Payment and Required
Documents
. Optionholder herewith delivers to the
Company the full purchase price of the Shares, as set forth in the
Notice of Stock Option Grant in Part I of the Option Agreement, and
any and all withholding taxes due in connection with the exercise
of the Option. In addition, Optionholder herewith
delivers any other documents required by the Company.
3.
Representations of
Optionholder
. Optionholder acknowledges that
Optionholder has received, read and understood the Plan and the
Option Agreement and agrees to abide by and be bound by their terms
and conditions.
4.
Rights as
Stockholder
. Until the issuance of the Shares (as
evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a stockholder
shall exist with respect to the Shares, notwithstanding the
exercise of the Option. The Shares shall be issued to
the Optionholder as soon as practicable after the Option is
exercised in accordance with the Option Agreement. No
adjustment shall be made for a dividend or other right for which
the record date is prior to the date of issuance except as provided
in Section 16 of the Plan.
5.
Tax
Consultation
. Optionholder understands that
Optionholder may suffer adverse tax consequences as a result of
Optionholder’s purchase or disposition of the
Shares. Optionholder represents that Optionholder has
consulted with any tax consultants Optionholder deems advisable in
connection with the purchase or disposition of the Shares and that
Optionholder is not relying on the Company for any tax
advice.
6.
Successors and
Assigns
. The Company may assign any of its rights
under this Exercise Notice to single or multiple assignees, and
this Exercise Notice shall inure to the benefit of the successors
and assigns of the Company. Subject to the restrictions
on transfer set forth in the Option Agreement, this Exercise Notice
shall be binding upon Optionholder and his or her heirs, executors,
administrators, successors and assigns.
7.
Interpretation
. Any
dispute regarding the interpretation of this Exercise Notice shall
be submitted by Optionholder or by the Company forthwith to the
Committee which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the
Committee shall be final and binding on all parties.
8.
Governing Law
. This
Exercise Notice shall be construed and enforced under the laws of
the State of Nevada, without regard to choice of law provisions
thereof.
9.
Entire
Agreement
. The Plan and Option Agreement are
incorporated herein by reference. All capitalized terms
used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Option Agreement. This
Exercise Notice, the Plan and the Option Agreement constitute the
entire agreement of the parties with respect to the subject matter
hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionholder with respect to the
subject matter hereof, and may not be modified adversely to the
Optionholder’s interest except by means of a writing signed
by the Company and Optionholder.
IN
WITNESS WHEREOF, the parties hereto have executed this Exercise
Notice as of the Date of Grant.
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BK TECHNOLOGIES CORPORATION
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BK Technologies Corporation
2017 Incentive Compensation Plan
RESTRICTED SHARE AGREEMENT
All
capitalized terms used in this Restricted Share Agreement (this
“
Agreement
”),
but not otherwise defined herein, shall have the meanings ascribed
to them in the BK Technologies Corporation 2017 Incentive
Compensation Plan (the “
Plan
”).
I.
NOTICE OF RESTRICTED SHARE
AWARD
The
Grantee (as designated above) has been granted an Award of
Restricted Shares, subject to the terms and conditions of the Plan
and this Agreement, as follows:
Date of Grant:
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Total Number of Restricted Shares:
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Vesting Schedule:
The Restricted Shares shall be
vested based on the Grantee’s Continuous Service according to
the following vesting schedule:
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II.
RESTRICTED SHARE AGREEMENT
1.
Grant of Restricted
Shares.
The Company hereby grants to the Grantee named
in the Notice of Restricted Share Award (the “
Grantee
”), the number of
Restricted Shares set forth in the Notice of Restricted Share
Award, subject to the terms and conditions of the Plan, which is
incorporated herein by reference. In the event of
a conflict between the terms and conditions of the Plan and
this Agreement, the terms and conditions of the Plan shall prevail.
The Restricted Shares covered by this Award shall be represented by
a stock certificate registered in the Grantee’s name or by
uncertificated shares designated for the Grantee in book-entry form
on the records of the Company’s transfer agent subject to the
restrictions set forth in this Agreement. Any stock certificate
issued shall bear all legends required by law and necessary to
effectuate the provisions of this Agreement. Any stock certificate
or book-entry uncertificated shares evidencing such Shares shall be
held in custody by the Company.
2.
Vesting of Restricted Shares
.
The Restricted Shares shall become vested based on the
Grantee’s Continuous Service in accordance with the vesting
schedule set forth above in the Notice of Restricted Share Award,
and any unvested Restricted Shares shall automatically be forfeited
in the event of the termination of the Grantee’s Continuous
Service for any reason prior to a vesting date set forth in the
vesting schedule above. Notwithstanding the foregoing: (i) in the
event of a Change in Control, the vesting of the Restricted Shares
will be governed by the applicable provisions of Section 21 of the
Plan; and (ii) the Committee may, in its sole
discretion,
provide for the full or partial acceleration of vesting of the
Restricted Shares in connection with the termination of the
Grantee’s Continuous Service for any reason prior to a
vesting date, including, but not limited to, termination of
Continuous Service as a result of the Grantee’s death or
“
Disability
”,
defined as the Grantee’s permanent and total disability
(within the meaning of Section 22(e) of the Code), as determined by
a medical doctor satisfactory to the Committee.
3.
Voting and Dividends
. The
Grantee may exercise full voting rights with respect to the
Restricted Shares, whether or not vested. Any dividends paid with
respect to the Restricted Shares prior to vesting of the Restricted
Shares shall be automatically deferred and accumulated by the
Company in a bookkeeping account, and shall be paid to the Grantee
in cash (without interest) only at such times as the underlying
Restricted Shares become vested in accordance with this Agreement,
with the Grantee’s right to payment of any such dividends
being subject to the same risk of forfeiture, restrictions on
transferability, and other terms of this Agreement as are the
Shares with respect to which the dividends otherwise were
payable.
4.
Restriction on Transfer
. The
Grantee may not transfer any of the Restricted Shares prior to the
applicable vesting date, except by the laws of descent and
distribution.
5.
Tax Obligations
.
(a)
Tax
Consequences
. The Grantee has reviewed with the
Grantee’s own tax advisors the federal, state, local and
foreign tax consequences of this Award. The Grantee is
relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The
Grantee understands that the Grantee (and not the Company) shall be
responsible for any tax liability that may arise as a result of the
transactions contemplated by this Agreement and the
Plan.
(b)
Withholding
Taxes
. The Grantee may satisfy any federal, state
or local tax withholding obligation relating to the grant or
vesting of Restricted Shares under this Agreement by any of the
following means (in addition to the Company’s right to
withhold from any compensation paid to the Grantee by the Company,
including withholding from any cash dividends paid in connection
with the vesting of Restricted Shares hereunder) or by a
combination of such means: (i) tendering a cash payment;
(ii) authorizing the Company to withhold Shares from the Restricted
Shares otherwise issuable to the Grantee under this Agreement;
provided, however, that no Shares are withheld with a value
exceeding the amount of tax required to be withheld by law based on
the maximum statutory tax rates in the applicable taxing
jurisdictions; or (iii) delivering to the Company owned and
unencumbered Shares. The Grantee agrees to make
appropriate arrangements with the Company for the satisfaction of
all federal, state, local and foreign income and employment tax
withholding requirements applicable to this Award.
6.
Entire Agreement; Governing
Law
. The Plan and this Agreement constitute the
entire agreement of the parties with respect to the subject matter
hereof and supersede in their entirety all prior undertakings and
agreements of the Company and the Grantee with respect to the
subject matter hereof, and may not be modified adversely to the
Grantee’s interest except by means of a writing signed by the
Company and the Grantee. This Agreement shall be
construed and enforced under the laws of the State of Nevada,
without regard to choice of law provisions thereof.
7.
No Guarantee of Continued
Service
. The Grantee acknowledges and agrees that
nothing in this Agreement or the Plan confer upon the Grantee any
right to continued employment or other service with the Company or
any Subsidiary or affiliate.
8.
Data Privacy
. In
order to administer the Plan, the Company may process personal data
about the Grantee. Such data includes, but is not limited to the
information provided in this Agreement and any changes thereto,
other appropriate personal and financial data about the Grantee
such as home address and business addresses and other contact
information and any other information that might be deemed
appropriate by the Company to facilitate the administration of the
Plan. By signing this Agreement, the Grantee gives explicit consent
to the Company to process any such personal data. The Grantee also
gives explicit consent to the Company to transfer any such personal
data outside the country in which the Grantee works or is employed,
including, if the Grantee is not a U.S. resident, to the United
States, to transferees that shall include the Company and other
persons who are designated by the Company to administer the
Plan.
9.
Plan and Prospectus
Delivery
. By signing this Agreement, the Grantee
acknowledges that a copy of the Plan, the Plan Summary and
Prospectus, and the Company’s most recent Annual Report and
Proxy Statement (the “
Prospectus Information
”) either
have been received by or provided to the Grantee, and the Grantee
consents to receiving the Prospectus Information electronically,
or, in the alternative, agrees to contact the Chief Financial
Officer of the Company to request a paper copy of the Prospectus
Information at no charge. The Grantee also represents that he or
she is familiar with the terms and provisions of the Prospectus
Information and hereby accepts the Restricted Shares on the terms
and subject to the conditions set forth herein and in the Plan. The
Grantee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Committee upon any
questions arising under the Plan or this Agreement. The Grantee
further agrees to notify the Company upon any change in the
residence address indicated below.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Date of Grant.
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BK TECHNOLOGIES CORPORATION
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BK Technologies Corporation
2017 Incentive Compensation Plan
RESTRICTED SHARE UNIT AGREEMENT
Summary of Restricted Share Unit Award
BK
Technologies Corporation (the “
Company
”) grants to the Grantee
named below, in accordance with the terms of the BK Technologies
Corporation 2017 Incentive Compensation Plan (the
“
Plan
”) and
this Restricted Share Unit Agreement (the “
Agreement
”), the following number
of Restricted Share Units, on the Date of Grant set forth
below:
Name of
Grantee:
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Number
of Restricted Share Units:
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Date of
Grant:
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Vesting
Dates:
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Terms of Agreement
1.
Grant
of Restricted Share Units
. Subject to and upon the terms,
conditions, and restrictions set forth in this Agreement and in the
Plan, the Company hereby grants to the Grantee as of the Date of
Grant, the total number of share units (the “
Restricted Share Units
”) set
forth above. Each Restricted Share Unit shall represent the
contingent right to receive Share and shall at all times be equal
in value to one Share. The Restricted Share Units shall be credited
in a book entry account established for the Grantee until payment
in accordance with Section 4 hereof.
2.
Vesting
of Restricted Share Units
.
(a)
A
ratable portion of the Restricted Share Units (rounded down to the
next whole number) shall vest on each of the Vesting Dates set
forth above (each, a “
Vesting Date
”), provided that the
Grantee shall have remained in the continuous employment or other
service of the Company or a Subsidiary (“
Continuous Service
”) through the
applicable Vesting Date.
(b)
Notwithstanding
Section 2(a), (i) upon the occurrence of a Change in Control prior
to a Vesting Date and during the Grantee’s Continuous
Service, the vesting of the Restricted Share Units will be governed
by the applicable provisions of Section 21 of the Plan; and (ii)
the Committee may, in its sole discretion, provide for the full or
partial acceleration of vesting of the Restricted Share Units in
connection with the termination of the Grantee’s Continuous
Service for any reason prior to a Vesting Date, including, but not
limited to, termination of Continuous Service as a result of the
Grantee’s death or “
Disability
”, defined as the
Grantee’s permanent and total disability (within the meaning
of Section 22(e) of the Code), as determined by a medical doctor
satisfactory to the Committee.
3.
Forfeiture
of Restricted Share Units
. The Restricted Share Units that
have not yet vested pursuant to Section 2(a) shall be forfeited
automatically without further action or notice if the Grantee
ceases to be employed by the Company or a Subsidiary other than as
provided pursuant to Section 2(b).
4.
Payment
.
(a)
Except
as may be otherwise provided in this Section, the Company shall
deliver to the Grantee (or the Grantee’s estate in the event
of death) the Shares underlying the vested Restricted Share Units
within thirty (30) days following the date that the Restricted
Share Units become vested in accordance with Section
2.
(b)
Notwithstanding
Section 4(a), to the extent that the Grantee’s right to
receive payment of the Restricted Share Units constitutes a
“deferral of compensation” within the meaning of
Section 409A of the Code, payment of any vested Restricted Share
Units shall be subject to the following rules, to the extent
necessary to comply with Section 409A of the Code:
(i) Except
as provided in Section 4(b)(ii), the Shares underlying the vested
Restricted Share Units shall be delivered to the Grantee (or the
Grantee’s estate in the event of death) within thirty (30)
days after the earlier of: (A) the Grantee’s
“separation from service” within the meaning of Section
409A of the Code; (B) the occurrence of a “change in the
ownership,” a “change in the effective control”
or a “change in the ownership of a substantial portion of the
assets” of the Company within the meaning of Section 409A of
the Code; or (C) the applicable Vesting Date.
(ii) If
the Restricted Share Units become payable as a result of Section
4(b)(i)(A), but not as a result of the Grantee’s death, and
the Grantee is a “specified employee” at that time
within the meaning of Section 409A of the Code, then the Shares
underlying the vested Restricted Share Units shall instead be
delivered to the Grantee within thirty (30) days after the first
business day that is more than six months after the date of his or
her separation from service (or, if the Grantee dies during such
six-month period, within thirty (30) days after the Grantee’s
death).
(c)
The Company’s
obligations with respect to the Restricted Share Units shall be
satisfied in full upon the delivery of the Shares underlying the
vested Restricted Share Units.
5.
Transferability
.
The Restricted Share Units may not be transferred, assigned,
pledged or hypothecated in any manner, or be subject to execution,
attachment or similar process, by operation of law or otherwise,
unless otherwise provided under the Plan. Any purported transfer or
encumbrance in violation of the provisions of this Section 5 shall
be void, and the other party to any such purported transaction
shall not obtain any rights to or interest in such Restricted Share
Units.
6.
Dividend,
Voting and Other Rights
. The Grantee shall not possess any
incidents of ownership (including, without limitation, dividend and
voting rights) in the Shares underlying the Restricted Share Units
until such Shares have been delivered to the Grantee in accordance
with Section 4 hereof, and no dividend equivalents will be paid or
provided under this Agreement. The obligations of the Company under
this Agreement will be merely that of an unfunded and unsecured
promise of the Company to deliver Shares in the future, and the
rights of the Grantee will be no greater than that of an unsecured
general creditor. No assets of the Company will be held or set
aside as security for the obligations of the Company under this
Agreement.
7.
No
Retention Rights
. Nothing contained in this Agreement shall
confer upon the Grantee any right with respect to continuance of
employment or other service with the Company or any Subsidiary, nor
limit or affect in any manner the right of the Company and its
Subsidiaries to terminate the employment or adjust the compensation
of the Grantee.
8.
Relation
to Other Benefits
. Any economic or other benefit to the
Grantee under this Agreement or the Plan shall not be taken into
account in determining any benefits to which the Grantee may be
entitled under any profit-sharing, retirement or other benefit or
compensation plan maintained by the Company or a
Subsidiary.
9.
Taxes
and Withholding
. To the extent the Company or any Subsidiary
is required to withhold any federal, state, local, foreign or other
taxes in connection with the delivery of Shares under this
Agreement, then the Company or Subsidiary (as applicable) shall
retain a number of Shares otherwise deliverable hereunder with a
value equal to the applicable tax withholding (based on the Fair
Market Value of the Shares on the date of delivery); provided that
in no event shall the value of the Shares retained exceed the
amount of taxes required to be withheld based on the maximum
statutory tax rates in the Grantee’s applicable taxing
jurisdictions. If the Company or any Subsidiary is required to
withhold any federal, state, local or other taxes at any time other
than upon delivery of the Shares under this Agreement, then the
Company or Subsidiary (as applicable) shall have the right in its
sole discretion to (a) require the Grantee to pay or provide for
payment of the required tax withholding, or (b) deduct the required
tax withholding from any amount of salary, bonus, incentive
compensation or other amounts otherwise payable in cash to the
Grantee (other than deferred compensation subject to Section 409A
of the Code).
10.
Adjustments
.
The number and kind of Shares deliverable pursuant to the
Restricted Share Units are subject to adjustment as provided in
Section 16 of the Plan.
11.
Compliance
with Law
. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws and
listing requirements with respect to the Restricted Share Units;
provided, however, notwithstanding any other provision of this
Agreement, and only to the extent permitted under Section 409A of
the Code, the Company shall not be obligated to deliver any Shares
pursuant to this Agreement if the delivery thereof would result in
a violation of any such law or listing requirement.
12.
Amendments
.
Subject to the terms of the Plan, the Committee may modify this
Agreement upon written notice to the Grantee. Any amendment to the
Plan shall be deemed to be an amendment to this Agreement to the
extent that the amendment is applicable hereto. Notwithstanding the
foregoing, no amendment of the Plan or this Agreement shall
adversely affect the rights of the Grantee under this Agreement
without the Grantee’s consent unless the Committee
determines, in good faith, that such amendment is required for the
Agreement to either be exempt from the application of, or comply
with, the requirements of Section 409A of the Code, or as otherwise
may be provided in the Plan.
13.
Severability
.
In the event that one or more of the provisions of this Agreement
shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be
separable from the other provisions hereof, and the remaining
provisions hereof shall continue to be valid and fully
enforceable.
14.
Relation
to Plan
. This Agreement is subject to the terms and
conditions of the Plan. This Agreement and the Plan contain the
entire agreement and understanding of the parties with respect to
the subject matter contained in this Agreement, and supersede all
prior written or oral communications, representations and
negotiations in respect thereto. In the event of any inconsistency
between the provisions of this Agreement and the Plan, the Plan
shall govern. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Plan. The Committee
acting pursuant to the Plan, as constituted from time to time,
shall, except as expressly provided otherwise herein, have the
right to determine any questions which arise in connection with the
grant of the Restricted Share Units.
15.
Successors
and Assigns
. Without limiting Section 5, the provisions of
this Agreement shall inure to the benefit of, and be binding upon,
the permitted successors, administrators, heirs, legal
representatives and assigns of the Grantee, and the successors and
assigns of the Company.
16.
Choice
of Law
. The interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of the State of
Nevada, without giving effect to the principles of conflict of laws
thereof.
17.
Data
Privacy
. In order to administer the Plan, the Company may
process personal data about the Grantee. Such data includes, but is
not limited to the information provided in this Agreement and any
changes thereto, other appropriate personal and financial data
about the Grantee such as home address and business addresses and
other contact information and any other information that might be
deemed appropriate by the Company to facilitate the administration
of the Plan. By signing this Agreement, the Grantee gives explicit
consent to the Company to process any such personal data. The
Grantee also gives explicit consent to the Company to transfer any
such personal data outside the country in which the Grantee works
or is employed, including, if the Grantee is not a U.S. resident,
to the United States, to transferees that shall include the Company
and other persons who are designated by the Company to administer
the Plan.
18.
Plan
and Prospectus Delivery
. By signing this Agreement, the
Grantee acknowledges that a copy of the Plan, the Plan Summary and
Prospectus, and the Company's most recent Annual Report and Proxy
Statement (the “
Prospectus
Information
”) either have been received by or provided
to the Grantee, and the Grantee consents to receiving the
Prospectus Information electronically, or, in the alternative,
agrees to contact the Chief Financial Officer of the Company to
request a paper copy of the Prospectus Information at no charge.
The Grantee also represents that he or she is familiar with the
terms and provisions of the Prospectus Information and hereby
accepts the Award on the terms and subject to the conditions set
forth herein and in the Plan. The Grantee hereby agrees to accept
as binding, conclusive and final all decisions or interpretations
of the Committee upon any questions arising under the Plan or this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Date of Grant.
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BK TECHNOLOGIES CORPORATION
|
Company Contact:
BK Technologies Corporation
Timothy Vitou, President
(321) 984-1414
BK Technologies Completes Holding Company
Reorganization
NYSE American Ticker Symbol for Shares of New Holding Company to
Remain “BKTI”
WEST MELBOURNE, FL, March 28, 2019
– BK Technologies,
Inc. (NYSE American: BKTI) today announced the completion of its
previously announced holding company reorganization. BK
Technologies Corporation is now the parent holding company of BK
Technologies, Inc. (“Old BK Technologies”) and its
subsidiaries.
The
reorganization is intended to create a more efficient corporate
structure and increase operational flexibility. No material
operational or financial impacts are expected.
In the
reorganization, stockholders of Old BK Technologies automatically
became stockholders of BK Technologies Corporation, on a
one-for-one basis, with the same number of shares and same
ownership percentage of Old BK Technologies common stock that they
held immediately prior to the holding company reorganization.
Shares of BK Technologies Corporation common stock will trade on
the NYSE American under the same ticker symbol previously used by
Old BK Technologies, “BKTI.” A new CUSIP number has
been assigned to the BK Technologies Corporation common stock:
05587G 104.
The
holding company reorganization is intended to be a tax-free
transaction for U.S. federal income tax purposes for stockholders
of Old BK Technologies.
About BK Technologies
As an
American manufacturer for over 70 years, the Company is deeply
rooted in the public safety communications industry, manufacturing
high-specification communications equipment of unsurpassed
reliability and value for use by public safety professionals and
government agencies. Advances include a broad new line of leading
digital two-way radios compliant with APCO Project 25
specifications. The Company’s products are manufactured and
distributed worldwide under BK Radio and RELM brand names. The
Company maintains its headquarters in West Melbourne, Florida, and
can be contacted through its web site at www.bktechnologies.com or
directly at 1-800-821-2900.
Forward-Looking Statements
This press release contains statements about future events and
expectations which are “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as
amended, including statements about the Company’s plans,
objectives, expectations and prospects. These statements can be
identified by forward-looking words such as “may,”
“might,” “could,” “would,”
“will,” “anticipate,”
“believe,” “plan,” “estimate,”
“project,” “expect,” “intend,”
“seek” and other similar expressions. Any statement
contained in this press release that is not a statement of
historical fact may be deemed to be a forward-looking statement.
Although the Company believes that the plans, objectives,
expectations and prospects reflected in or suggested by its
forward-looking statements are reasonable, those statements involve
risks, uncertainties and other factors that may cause the
Company’s actual results, performance or achievements to be
materially different from any future results, performance or
achievements expressed or implied by these forward-looking
statements, and the Company can give no assurance that its plans,
objectives, expectations and prospects will be achieved.
Important factors that might
impact the Company’s plans, objectives, expectations and
prospects are contained in the “Risk Factors” section
of the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2018, and in the Company’s other
current and periodic reports filed from time to time with the
Securities and Exchange Commission. All forward-looking statements
in this press release are made as of the date hereof, based on
information available to the Company as of the date hereof, and the
Company assumes no obligation to update any forward-looking
statement.