As filed with the Securities and Exchange Commission on July 10, 1995
Registration Statement No. 33-_____________
___________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_______________________________
CALIFORNIA MICROWAVE, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-1668412
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
985 Almanor Avenue, Sunnyvale, California 94086
(Address of Principal Executive Offices) (Zip Code)
Microwave Networks Incorporated
1990 Non-Qualified Stock Option Plan for Employees
1990 Non-Qualified Stock Option Plan for
Nonemployed Directors and Consultants
(Full title of the plans)
Garrett E. Pierce, Executive Vice President and Chief Financial Officer
California Microwave, Inc.
985 Almanor Drive
Sunnyvale, California 94086
(408) 720-6286
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
Calculation of Registration Fee
___________________________________________________________________________
Title of Amount to Proposed Maximum Proposed Maximum Amount of
Securities be Offering Price Aggregate Registration
to be Registered per Share Offering Price Fee
Registered
___________________________________________________________________________
Common Stock,
par value $.10
per share:
Microwave
Networks
1990 Employee
Plan 120,859 $24.25* $2,930,831* $1,011<PAGE>
Microwave
Networks
1990 Director
and
Consultant
Plan 11,753 $24.25* $285,011* 99
$1,110
=====
*Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457, on the basis of the average of the high and low
prices of the Registrant's Common Stock as reported on the Nasdaq National
Market on July 5, 1995.
-2-<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference
in this registration statement:
(a) The Registrant's Annual Report on Form 10-K for
the fiscal year ended June 30, 1994, filed
pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended;
(b) The Registrant's Quarterly Reports on Form 10-Q
for the quarters ended September 30, 1994,
December 31, 1994, and March 31, 1995, and the
Registrant's Report on Form 10-C dated May 30,
1995. The Registrant's Current Reports on Form 8-
K dated February 13, 1995, June 13, 1995 and June
30, 1995,
(c) The description of the Registrant's Common Stock
contained in the Company's Registration Statement
on Form 8-A dated September 25, 1973, as amended
by the Form 8 dated February 19, 1993, as filed
pursuant to the Securities Exchange Act of 1934,
as amended; and the Company's description of its
Common Stock Purchase Rights appearing in the
Company's Registration Statement on Form 8-A dated
August 1, 1989.
All documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 after the date of this registration
statement and prior to the filing of a post-effective
amendment to this registration statement which indicates that
all securities offered hereunder have been sold, or which
deregisters all securities then remaining unsold under this
registration statement, shall be deemed to be incorporated by
reference in this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable; the class of securities to be offered
is registered under Section 12 of the Securities Exchange Act
of 1934.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
-1-<PAGE>
Item 6. Indemnification of Directors and Officers.
As permitted by sections 102 and 145 of the Delaware
General Corporation Law, the Registrant's certificate of
incorporation eliminates a director's personal liability for
monetary damages to the Registrant and its stockholders
arising from a breach or alleged breach of a director's
fiduciary duty except for liability under section 174 of the
Delaware General Corporation Law or liability for any breach
of the director's duty of loyalty to the Registrant or its
stockholders, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation
of law, or for any transaction from which the director
derived an improper personal benefit. The effect of this
provision in the certificate of incorporation is to eliminate
the rights of the Registrant and its stockholders (through
stockholders' derivative suits on behalf of the Registrant)
to recover monetary damages against a director for breach of
fiduciary duty as a director (including breaches resulting
from negligent or grossly negligent behavior) except in the
situations described above.
The Registrant's bylaws provide for indemnification of
its directors, officers and agents, and the Company has
entered into an indemnification agreement with each of its
officers and directors (an "Indemnitee"). Under the bylaws
and such indemnification agreements, the Registrant must
indemnify an Indemnitee to the fullest extent permitted by
Delaware law for losses and expenses incurred in connection
with actions in which the Indemnitee is involved by reason of
having been a director or officer of the Registrant. In
certain circumstances, the Registrant is also obligated to
advance expenses an Indemnitee may incur in connection with
such actions before any resolution of the action, and the
Indemnitee may sue to enforce his or her right to
indemnification or advancement of expenses.
The Registrant also maintains an insurance policy
insuring its directors and officers against liability for
certain acts and omissions while acting in their official
capacities.
There is no litigation pending, and neither the
Registrant nor any of its directors know of any threatened
litigation, which might result in a claim for indemnification
by any director or officer.
Item 7. Exemption from Registration Claimed.
Not applicable.
-2-<PAGE>
Item 8. Exhibits.
Exhibit
Number Description of Document
4.1 1990 Microwave Networks Incorporated
Non-Qualified Stock Option Plan for
Employees
4.2 1990 Microwave Networks Incorporated
Non-Qualified Stock Option Plan for
Nonemployed Directors and Consultants
5.1 Opinion of Howard, Rice, Nemerovski,
Canady, Falk & Rabkin, A Professional
Corporation.
23.1 Consent of Ernst & Young LLP,
Independent Auditors.
23.2 Consent of Howard, Rice, Nemerovski,
Canady, Falk & Rabkin, A Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant
-3-<PAGE>
pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
-4-<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on
the 10th day of July, 1995.
CALIFORNIA MICROWAVE, INC.
By /s/ Philip F. Otto
_______________________________
Philip F. Otto, Chairman of the
Board, President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
/s/ Philip F. Otto Chairman of the July 10, 1995
___________________________ Board, President and
PHILIP F. OTTO Chief Executive
Officer
(principal executive
officer)
/s/ Garrett E. Pierce Executive Vice July 10, 1995
___________________________ President and Chief
GARRETT E. PIERCE Financial Officer
(principal financial
officer and
principal accounting
officer)
/s/ Gilbert F. Johnson* President of the July 10, 1995
___________________________ Government Group and
GILBERT F. JOHNSON Director
/s/ Edward E. David, Jr.* Director July 10, 1995
___________________________
EDWARD E. DAVID, JR.
-5-<PAGE>
/s/ Alfred M. Gray* Director July 10, 1995
___________________________
ALFRED M. GRAY
/s/ Arthur H. Hausman* Director July 10, 1995
___________________________
ARTHUR H. HAUSMAN
___________________________ Director
ROBERT A. HELLIWELL
/s/ David B. Leeson* Director July 10, 1995
___________________________
DAVID B. LEESON
*By /s/ George L. Spillane
_______________________
George L. Spillane,
Attorney-in-fact
-6-<PAGE>
Index to Exhibits
Exhibit
Number Description of Document Page
4.1 1990 Microwave Networks Incorporated Non-
Qualified Stock Option Plan for Employees
4.2 1990 Microwave Networks Incorporated Non-
Qualified Stock Option Plan for Nonemployed
Directors and Consultants
5.1 Opinion of Howard, Rice, Nemerovski,
Canady, Falk & Rabkin, A Professional
Corporation.
23.1 Consent of Ernst & Young LLP, Independent
Auditors.
23.2 Consent of Howard, Rice, Nemerovski,
Canady, Falk & Rabkin, A Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney.
-7-<PAGE>
1990
MICROWAVE NETWORKS INCORPORATED
NON-QUALIFIED STOCK OPTION PLAN
FOR EMPLOYEES
WHEREAS, the Board of Directors (the "Board") of
MICROWAVE NETWORKS INCORPORATED (the "Company"), a
corporation organized under the laws of the State of Texas,
has determined that it is in the best interest of the Company
to adopt a non-qualified stock option plan in order to
provide, at the discretion of the Board, certain of the
Company's employees (including employees who are also
officers and directors) with the option to purchase stock in
the Company;
NOW, THEREFORE, by authorization of the Board, the
Company adopts the MICROWAVE NETWORKS INCORPORATED NON-
QUALIFIED STOCK OPTION PLAN FOR EMPLOYEES (the "Plan") as a
method of providing certain of the Company's employees with
an incentive to increase the profits of the Company, to
encourage their loyalty to the Company, to identify their
interests with those of stockholders of the Company, and to
acknowledge those individuals who have made or may make
significant contributions to the Company. The effective date
of the Plan is July 19, 1990.
1. Committee. The Board shall appoint a committee
of three or more persons. Such individuals may, but are not
required to be, members of the Board. Each such individual
shall be a "disinterested person" within the meaning of Rule
16b-3 of the Securities Exchange Act of 1934, or successor
rule or regulation. The Committee shall have the powers and
authority set forth herein.
2. Grant of Options. The Committee is hereby
authorized by majority vote of its members to grant stock
options from time to time in the Company's behalf to such
employees (including employees who are also officers and
directors) of the Company as the Committee in its sole
discretion deems appropriate. Those to whom options may be
granted hereby are individuals who in the sole discretion of
the Committee are determined to have made, or may make,
significant contributions to the Company's success (the
"Optionees"). Any options granted under this Plan must be
granted within ten years after the effective date of the
Plan.
-1-<PAGE>
3. Amount of Stock. The Company has also adopted a
non-qualified stock option plan for nonemployed directors and
consultants of the Company (the "Other Plan"), also effective
as of April 16, 1990. The aggregate amount of stock which
may be purchased pursuant to options granted under this Plan
and the Other Plan shall be seven hundred thirty thousand
(730,000) shares of the Company's common stock (the "Option
Shares"). The Option Shares will be restricted pursuant to
Rule 144 ("Rule 144"), promulgated under the Securities Act
of 1933, as amended (the "Act"). If and to the extent that
the number of outstanding shares of the Company's common
stock shall be increased or reduced by change of par value,
stock split, reverse stock split, reclassification,
distribution of a dividend payable in stock, or similar
change in capital structure without consideration, the number
of shares subject to outstanding options and the option price
per share shall be proportionately adjusted, subject to any
required action by the Board or shareholders of the Company
and compliance with applicable securities laws; provided;
however, any resulting fractions of a share shall be ignored.
4. Exercise. Any option granted pursuant to this
Plan shall contain provisions, established by the Committee,
setting forth the manner of and vesting periods for the
exercise of such option. Options granted hereunder may not
be exercised unless the Optionee is an employee of the
Company at the time such option is to be exercised. In no
event, however, shall any option granted to any Optionee be
exercisable by its terms after the expiration of five (5)
years from the date of the grant thereof. Optionees shall
exercise any options granted pursuant to the Plan by
delivering written notice to the Company setting forth the
number of Option Shares to be purchased and the address to
which the certificates representing the exercised Option
Shares shall be mailed. Such written notice when received by
the Company shall be accompanied by payment of the purchase
price of such Option Shares; such payment shall be made by
cash or check in an amount equal to the purchase price of
such shares. If paid by personal check, the Company shall
not be obligated to issue stock certificates evidencing the
Option Shares until ten (10) business days have elapsed and
the monies representing by such check have been fully and
finally realized by the Company.
5. Nontransferability and Termination of Options.
The terms of any option granted under this Plan shall include
a provision making such option nontransferable by the holder
thereof, and exercisable during his lifetime only by him.
Any option granted under this Plan shall terminate
automatically sixty (60) days after the death of the
Optionee, and immediately after the termination of the
Optionee's employment with the Company for any reason,
-2-<PAGE>
whether such termination is voluntary or involuntary. The
number of Option Shares which shall be exercisable during
such sixty day period following death shall be the number of
Option Shares exercisable by the Optionee at the time of his
death.
6. Purchase Price. The purchase price per Option
Share granted hereunder shall be such price as the Committee
in its sole discretion may determine.
7. Stock Reserve. The Company shall at all times
during the term of the Plan reserve and keep available such
number of shares of its Common Stock as will be sufficient to
satisfy the requirements of this Plan, and shall pay all fees
and expenses necessarily incurred by the Company in
connection with the exercise of options granted hereunder.
8. Termination, Amendment, and Modification of Plan.
The Board may at any time terminate or amend or modify the
Plan, provided that no termination, amendment, or
modification of the Plan shall in any manner affect any
option granted under the Plan without the consent of the
Optionee.
9. No Effect upon the Holding of an Office or
Position. Nothing in the Plan or in any option granted
hereby shall confer upon any employee the right to continue
in such position with the Company. Nor shall anything in the
Plan or in any option granted hereby be in anywise
interpreted as an agreement of employment.
10. Other plans. The adoption of the Plan shall not
affect any other stock option or incentive or other
compensation plans in effect for the Company, nor shall the
Plan preclude the Company from establishing any other forms
of incentive or other compensation for employees, officers or
directors of the Company.
11. Administration. The Plan shall be administered
by the Committee. All questions of interpretation and
application of the Plan or of options granted pursuant to the
Plan shall be subject to the determination of the Committee,
which shall be final and binding.
12. Restrictions on Transferability of Option Shares.
Unless and until the Option Shares are registered under the
Act and the applicable state securities statutes, the Option
Shares will be restricted pursuant to Rule 144. Upon
exercise of any option, the Company shall not be required to
issue such shares unless the Board has received evidence
satisfactory to it to the effect that the Optionee will not
transfer such shares except in accordance with applicable
-3-<PAGE>
securities laws. The Company will not transfer such shares
after issuance without receipt of an opinion of counsel for
Optionee satisfactory to the Company to the effect that any
proposed transfer complies with applicable securities laws.
The Company shall in no event be obligated to register any
Option Shares pursuant to applicable federal or state
securities laws. The applicable restrictions will be stated
on the certificates which are issued pursuant to the Plan to
an Optionee.
13. Written Agreement. Upon the grant of any option
hereunder, each Optionee shall be delivered a written Option
Grant, which shall be subject to the terms and conditions
prescribed herein and shall be signed by the Optionee and by
the President or any Vice President of the Company for and in
the name and in behalf of the Company. Such Option Grant
shall contain such other provisions as the Committee in its
discretion shall deem advisable.
14. Changes in the Company's Capital Structure. The
existence of outstanding options shall not affect in any way
the right or power of the Company or its stockholders to make
or authorize any or all adjustments, recapitalizations or
other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or
any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the stock or the rights thereof,
or the dissolution or liquidation of the Company, or any sale
or transfer of all or any part of its assets or business, or
any other corporate act or proceeding, whether of a similar
character or otherwise.
15. No Rights as Stockholder. No Optionee shall have
rights as a Stockholder with respect to shares covered by his
option until the date of issuance of a stock certificate for
such shares; and except as otherwise may be provided herein,
no adjustments for dividends, or otherwise, shall be made if
the record date therefor is prior to the date of issuance of
such certificate.
16. Payment of Tax. To the extent the fair market
value of the stock on the date of the exercise of the option
exceeds the purchase price, the Optionee may realize a
taxable gain. Upon request by Optionee, the Company will
lend Optionee a sum sufficient to pay Optionee's tax on such
gain (if any), which shall be repayable according to the
terms of a promissory note bearing interest at the rate of
nine (9%) percent per annum and being payable in twelve (12)
monthly installments commencing one month after such loan is
funded. Such note shall be secured by the pledge to the
Company of the shares issued in connection with the exercise
of the option. Prior to the issuance of the Option Shares,
-4-<PAGE>
Optionee must or make adequate provision for any applicable
federal income tax withholding obligations of the Company.
17. Merger, Dissolution, etc. In the event of a
dissolution or liquidation or the Company, a merger in which
the Company is not the surviving corporation, a transaction
in which 100% of the then-outstanding voting stock is sold or
otherwise transferred or the sale of substantially all of the
assets of the Company, any or all outstanding options shall,
notwithstanding any contrary terms contained in the option
grant, accelerate and become exercisable in full at least ten
days prior to (and shall expire on) the consummation of such
dissolution, liquidation, merger or sale of assets on such
conditions as the Committee shall determine, unless the
successor corporation assumes the outstanding options or
substitutes substantially equivalent options.
18. Plan Binding on Successors. The Plan shall be
binding upon the successors and assigns of the Company.
19. Singular, Plural, Gender. Whenever used herein,
nouns in the singular shall include the plural, and the
masculine pronoun shall include the feminine gender.
20. Stock Restriction Agreement. On the exercise of
any options granted under this Plan, the Optionee shall enter
into a Stock Restriction Agreement in the general form
attached hereto as Exhibit "A."
21. Type of Plan. This Plan is non-qualified stock
option plan and as such is not subject to any provisions of
the Employee Retirement Income Security Act of 1974.
22. Other Terms. Any option granted hereunder shall
contain such other and additional terms not inconsistent with
the terms of this Plan, which are deemed necessary or
desirable by the Committee, or by legal counsel to the
Company.
23. Successor Plan. This Plan is a division and
revision of the 1990 Microwave Networks Incorporated Non-
Qualified Stock Option Plan adopted as of April 16, 1990 (the
"Prior Plan"). Whereas the Prior Plan covered nonemployed
directors and consultants as well as employees, this Plan
covers only employees of the Company. The administration and
operation of all
-5-<PAGE>
options issued to employees under the Prior Plan shall be
controlled and governed by the terms of this Plan as if they
had been issued under this Plan.
ADOPTED AS OF July 19, 1990
MICROWAVE NETWORKS INCORPORATED
By: _______________________________
Arthur W. Epley, III, President
ATTEST TO:
_________________________
Secretary
-6-<PAGE>
1990
MICROWAVE NETWORKS INCORPORATED
NON-QUALIFIED STOCK OPTION PLAN
FOR NONEMPLOYED DIRECTORS AND CONSULTANTS
WHEREAS, the Board of Directors (the "Board") of
MICROWAVE NETWORKS INCORPORATED (the "Company"), a
corporation organized under the laws of the State of Texas,
has determined that it is in the best interest of the Company
to adopt a non-qualified stock option plan in order to
provide, at the discretion of the Board, certain of the
Company's nonemployed directors, as well as certain
consultants of the Company who are independent contractors,
with the option to purchase stock in the Company;
NOW, THEREFORE, by authorization of the Board, the
Company adopts the MICROWAVE NETWORKS INCORPORATED NON-
QUALIFIED STOCK OPTION PLAN FOR NONEMPLOYED DIRECTORS AND
CONSULTANTS (the "Plan") as a method of providing certain of
the Company's nonemployed directors and consultants with an
incentive to increase the profits of the Company, to
encourage their loyalty to the Company, to identify their
interests with those of stockholders of the Company, and to
acknowledge those individuals who have made or may make
significant contributions to the Company. The effective date
of the Plan is July 19, 1990.
1. Committee. The Board shall appoint a committee
of three or more persons. Such individuals may, but are not
required to be, members of the Board. Each such individual
shall be a "disinterested person" within the meaning of Rule
16b-3 of the Securities Exchange Act of 1934, or successor
rule or regulation. The Committee shall have the powers and
authority set forth herein.
2. Grant of Options. The Committee is hereby
authorized by majority vote of its members to issue stock
options from time to time in the Company's behalf to such
nonemployed directors and consultants of the Company as the
Committee in its sole discretion deems appropriate. Those to
whom options may be granted hereby are individuals who in the
sole discretion of the Committee are determined to have made,
or may make, significant contributions to the Company's
success (the "Optionees"). Any options granted under this
Plan must be granted within ten years after the effective
date of the Plan.
-1-<PAGE>
3. Amount of Stock. The Company has also adopted a
non-qualified stock option plan for employees of the Company
(the "Other Plan"), also effective as of April 16, 1990. The
aggregate amount of stock which may be purchased pursuant to
options granted under this Plan and the Other Plan shall be
seven hundred thirty thousand (730,000) shares of the
Company's common stock (the "Option Shares"). The Option
Shares will be restricted pursuant to Rule 144 ("Rule 144"),
promulgated under the Securities Act of 1933, as amended (the
"Act"). If and to the extent that the number of outstanding
shares of the Company's common stock shall be increased or
reduced by change of par value, stock split, reverse stock
split, reclassification, distribution of a dividend payable
in stock, or similar change in capital structure without
consideration, the number of shares subject to outstanding
options and the option price per share shall be
proportionately adjusted, subject to any required action by
the Board or shareholders of the Company and compliance with
applicable securities laws; provided; however, any resulting
fractions of a share shall be ignored.
4. Exercise. Any option granted pursuant to this
Plan shall contain provisions, established by the Committee,
setting forth the manner of and vesting periods for the
exercise of such option. In no event, however, shall any
option granted to any Optionee be exercisable by its terms
after the expiration of five (5) years from the date of the
grant thereof. Optionees shall exercise any options granted
pursuant to the Plan by delivering written notice to the
Company setting forth the number of Option Shares to be
purchased and the address to which the certificates
representing the exercised Option Shares shall be mailed.
Such written notice when received by the Company shall be
accompanied by payment of the purchase price of such Option
Shares; such payment shall be made by cash or check in an
amount equal to the purchase price of such shares. If paid
by personal check, the Company shall not be obligated to
issue stock certificates evidencing the Option Shares until
ten (10) business days have elapsed and the monies
representing by such check have been fully and finally
realized by the Company.
5. Nontransferability and Termination of Options.
The terms of any option granted under this Plan shall include
a provision making such option nontransferable by the holder
thereof, and exercisable during his lifetime only by him.
Any option granted under this Plan shall terminate
automatically sixty (60) days after the death of the
Optionee. The number of Option Shares which shall be
exercisable during such sixty day period following death
shall be the number of Option Shares exercisable by the
Optionee at the time of his death.
-2-<PAGE>
6. Purchase Price. The purchase price per Option
Share granted hereunder shall be such price as the Committee
in its sole discretion may determine.
7. Stock Reserve. The Company shall at all times
during the term of the Plan reserve and keep available such
number of shares of its Common Stock as will be sufficient to
satisfy the requirements of this Plan, and shall pay all fees
and expenses necessarily incurred by the Company in
connection with the exercise of options granted hereunder.
8. Termination, Amendment, and Modification of Plan.
The Board may at any time terminate or amend or modify the
Plan, provided that no termination, amendment, or
modification of the Plan shall in any manner affect any
option granted under the Plan without the consent of the
Optionee.
9. No effect upon the holding of an office or
position. Nothing in the Plan or in any option granted
hereby shall confer upon any director or consultant the right
to continue in such position with the Company. Nor shall
anything in the Plan or in any option granted hereby be in
anywise interpreted as an agreement of employment.
10. Other plans. The adoption of the Plan shall not
affect any other stock option or incentive or other
compensation plans in effect for the Company, nor shall the
Plan preclude the Company from establishing any other forms
of incentive or other compensation for employees, officers or
directors of the Company.
11. Administration. The Plan shall be administered
by the Committee. All questions of interpretation and
application of the Plan or of options granted pursuant to the
Plan shall be subject to the determination of the Committee,
which shall be final and binding.
12. Restrictions on Transferability of Option Shares.
Unless and until the Option Shares are registered under the
Act and the applicable state securities statutes, the Option
Shares will be restricted pursuant to Rule 144. Upon
exercise of any option, the Company shall not be required to
issue such shares unless the Board has received evidence
satisfactory to it to the effect that the Optionee will not
transfer such shares except in accordance with applicable
securities laws. The Company will not transfer such shares
after issuance without receipt of an opinion of counsel for
Optionee satisfactory to the Company to the effect that any
proposed transfer complies with applicable securities laws.
The Company shall in no event be obligated to register any
Option Shares pursuant to applicable federal or state
-3-<PAGE>
securities laws. The applicable restrictions will be stated
on the certificates which are issued pursuant to the Plan to
an Optionee.
13. Written Agreement. Upon the grant of any option
hereunder, each Optionee shall be delivered a written Option
Grant, which shall be subject to the terms and conditions
prescribed herein and shall be signed by the Optionee and by
the President or any Vice President of the Company for and in
the name and in behalf of the Company. Such Option Grant
shall contain such other provisions as the Committee in its
discretion shall deem advisable.
14. Changes in the Company's Capital Structure. The
existence of outstanding options shall not affect in any way
the right or power of the Company or its stockholders to make
or authorize any or all adjustments, recapitalizations or
other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or
any issue of bond, debentures, preferred or prior preference
stock ahead of or affecting the stock or the rights thereof,
or the dissolution or liquidation of the Company, or any sale
or transfer of all or any part of its assets or business, or
any other corporate act or proceeding, whether of a similar
character or otherwise.
15. No Rights as Stockholder. No Optionee shall have
rights as a Stockholder with respect to shares covered by his
option until the date of issuance of a stock certificate for
such shares; and, except as otherwise may be provided herein,
no adjustments for dividends, or otherwise, shall be made if
the record date therefor is prior to the date of issuance of
such certificate.
16. Payment of Tax. To the extent that the fair
market value of the stock on the date of the exercise of the
option exceeds the purchase price, the Optionee may realize a
taxable gain. Upon request by Optionee, the Company will
lend Optionee a sum sufficient to pay Optionee's tax on such
gain (if any), which shall be repayable according to the
terms of a promissory note bearing interest at the rate of
nine (9%) percent per annum and being payable in twelve (12)
monthly installments commencing one month after such loan is
funded. Such note shall be secured by the pledge to the
Company of the shares issued in connection with the exercise
of the option. Prior to the issuance of the Option Shares,
Optionee must pay or make adequate provision for any
applicable federal income tax withholding obligations of the
Company.
17. Merger, Dissolution, etc. In the event of a
dissolution or liquidation of the Company, a merger in which
-4-<PAGE>
the Company is not the surviving corporation, a transaction
in which 100% of the then-outstanding voting stock is sold or
otherwise transferred or the sale of substantially all of the
assets of the Company, any or all outstanding options shall,
notwithstanding any contrary terms contained in the option
grant, accelerate and become exercisable in full at least ten
days prior to (and shall expire on) the consummation of such
dissolution, liquidation, merger or sale of assets on such
conditions as the Committee shall determine, unless the
successor corporation assumes the outstanding options or
substitutes substantially equivalent options.
18. Plan Binding on Successors. The Plan shall be
binding upon the successors and assigns of the Company.
19. Singular, Plural, Gender. Whenever used herein,
nouns in the singular shall include the plural, and the
masculine pronoun shall include the feminine gender.
20. Stock Restriction Agreement. On the exercise of
any options granted under this Plan, the Optionee shall enter
into a Stock Restriction Agreement in the general form
attached hereto as Exhibit "A."
21. Type of Plan. This Plan is a non-qualified stock
option plan and as such is not subject to any provisions of
the Employee Retirement Income Securities Act of 1974.
22. Other Terms. Any option granted hereunder shall
contain such other and additional terms not inconsistent with
the terms of this Plan, which are deemed necessary or
desirable by the Committee, or by legal counsel to the
Company.
23. Successor Plan. This Plan is a division and
revision of the 1990 Microwave Networks Incorporated Non-
Qualified Stock Option Plan adopted as of April 16, 1990 (the
"Prior Plan"). Whereas the Prior Plan covered employees as
well as nonemployed directors and consultants, this Plan
covers only nonemployed directors and consultants of the
Company. The administration and operation of all options
issued to nonemployed directors
-5-<PAGE>
and consultants under the Prior Plan shall be controlled and
governed by the terms of this Plan as if they had been issued
under this Plan.
ADOPTED AS OF July 19, 1990
MICROWAVE NETWORKS INCORPORATED
By: _______________________________
Arthur W. Epley, III, President
ATTEST TO:
________________________
Secretary
-6-<PAGE>
July 10, 1995
California Microwave, Inc.
985 Almanor Drive
Sunnyvale, California
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion as counsel for
California Microwave, Inc., a Delaware corporation (the
"Company"), in connection with the registration under the
Securities Act of 1933, as amended, and the Rules and Regulation
promulgated thereunder, and the public offering by the Company
of up to 120,859 shares of Common Stock issuable under the 1990
Non-Qualified Stock Option Plan for Employees of the Company's
wholly-owned subsidiary, Microwave Networks Incorporated, and up
to 11,753 shares of Common Stock issuable under the 1990 Non-
Qualified Stock Option Plan for Non-employed Directors and
Consultants of Microwave Networks Incorporated.
We have examined the Company's Registration Statement
on Form S-8 in the form filed with the Securities and Exchange
Commission contemporaneously herewith (the "Registration
Statement"), which covers the shares authorized for issuance
under the aforesaid Plans. We further have examined the
Certificate of Incorporation of the Company as certified by the
Secretary of State of the State of Delaware, the Bylaws of the
Company and minutes of meetings of the Board of Directors of the
Company as a basis for the opinion hereafter expressed.
Based on the foregoing examination, we are of the
opinion that, upon issuance and sale in the manner described in
the Registration Statement, the shares of Common Stock covered
by the Registration Statement will be legally issued, fully paid
and nonassessable.<PAGE>
California Microwave, Inc.
July 10, 1995
Page 2
We consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
HOWARD, RICE, NEMEROVSKI,
CANADY, FALK & RABKIN,
A Professional Corporation
By /s/ Richard W. Canady
RICHARD W. CANADY
RWC:kc<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the 1990 Non-
Qualified Stock Option Plan for Employees and the 1990 Non-
Qualified Stock Option Plan for Nonemployed Directors and
Consultants of Microwave Networks Incorporated of our reports
dated August 5, 1994, with respect to the consolidated
financial statements and schedules of California Microwave,
Inc. included and incorporated by reference in its Annual
Report on Form 10-K for the year ended June 30, 1994, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
July 7, 1995<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below, being a member of the Board of
Directors of California Microwave, Inc. (the "Company"),
hereby constitutes and appoints Philip F. Otto and George L.
Spillane, and each of them, as his true and lawful attorney-
in-fact and agent, with full power of substitution and
resubstitution, for and in his name, place and stead, in any
and all capacities, to sign on his behalf the Company's
Registration Statement on Form S-8 with respect to up to
132,612 shares of its common stock issuable under Microwave
Networks Incorporated's 1990 Non-Qualified Stock Option Plan
for Employees and 1990 Non-Qualified Stock Option Plan for
Nonemployed Directors and Consultants, and to execute any
amendments thereto (including post-effective amendments) or
certificates that may be required in connection with such
registration statement, and to file the same, with all
exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, with
the full power and authority to do and perform each and every
act and thing necessary or advisable to be done in connection
therewith, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
DATED: July 10, 1995
/s/ Edward E. David, Jr. /s/ David B. Leeson
_____________________________ _____________________________
EDWARD E. DAVID, JR. DAVID B. LEESON
/s/ Alfred M. Gray /s/ Gilbert F. Johnson
_____________________________ _____________________________
ALFRED M. GRAY GILBERT F. JOHNSON
/s/ Arthur H. Hausman /s/ Philip F. Otto
_____________________________ _____________________________
ARTHUR H. HAUSMAN PHILIP F. OTTO
_____________________________
ROBERT A. HELLIWELL<PAGE>
