As filed with the Securities and Exchange Commission on September 5, 1997
Registration Statement No. 333-____
===========================================================================
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.)
555 Twin Dolphin Drive, Redwood City, California 94065
(Address of Principal Executive Offices) (Zip Code)
1992 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
(Full title of the plans)
George L. Spillane, Vice President and
Chief Financial Officer
California Microwave, Inc.
555 Twin Dolphin Drive
Redwood City, California 94065
(Name and address, including zip code, of agent for service)
(415) 596-9000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
___________________________________________________________________________
Title of
Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered per Share* Offering Price* Fee
___________________________________________________________________________
Common Stock,
par value $.10
per share:
1992 Stock
Option Plan 1,500,000 $16.07 $24,105,000 $7,304.00
Non-Qualified
Stock Option 300,000 $16.07 $ 4,821,000 $1,461.00
TOTAL $8,765.00<PAGE>
*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 August 29, 1997
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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) Registrant's Annual Report on Form 10-K for
the fiscal year ended June 30, 1996, filed
pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the
"Exchange Act");
(b) Registrant's Quarterly Report on Form 10-Q for
the quarters ended September 30, 1996,
December 31, 1996 and March 31, 1997, filed
pursuant to Section 13(a) of the Exchange Act;
(c) All other reports, if any, filed by Registrant
pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year
ended June 30, 1996;
(d) The description of Registrant's Common Stock
contained in the 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 Exchange Act; 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; and any amendment or report
filed for the purpose of updating any such
description.
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 Exchange Act.
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Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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 officers, directors and employees, and the Company has
entered into an indemnification agreement with each officer
and director of the Registrant (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 employee 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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Item 8. EXHIBITS.
Exhibit
Number Description of Document
4.1 1992 Stock Option Plan, as amended through July 11,
1997
4.2 Non-Qualified Stock Option Agreement between
California Microwave, Inc. and Frederick D.
Lawrence, dated effective as of July 16, 1997
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 Powers 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities
offered (if the total dollar value of
securities offered would not exceed that which
was registered) and any deviation from the low
or high end of the estimated maximum offering
range may be reflected in the form of
prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more
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than a 20% change in the maximum offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(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 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
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the opinion of the Securities and Exchange Commission
such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against
such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person
in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against
public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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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 of 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 Redwood City, State of California, on the 29
day of August, 1997.
CALIFORNIA MICROWAVE, INC.
By/s/ Frederick D. Lawrence
________________________________
Frederick D. Lawrence,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed below by
the following persons in the capacities and on the dates
indicated.
/s/ Frederick D. Lawrence Chief Executive August 29, 1997
______________________________ Officer,
FREDERICK D. LAWRENCE President,
Chairman of the
Board (principal
executive officer)
/s/ George L. Spillane Vice President, August 29, 1997
______________________________ Chief Financial
GEORGE L. SPILLANE Officer (principal
financial officer
and principal
accounting
officer)
/s/ Edward E. David, Jr.* Director August 29, 1997
______________________________
EDWARD E. DAVID, JR.
/s/ Alfred M. Gray* Director August 29, 1997
______________________________
ALFRED M. GRAY
/s/ Arthur H. Hausman* Director August 29, 1997
______________________________
ARTHUR H. HAUSMAN
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/s/ J.J. Adorjan* Director August 29, 1997
______________________________
J.J. ADORJAN
/s/ David B. Leeson* Director August 29, 1997
______________________________
DAVID B. LEESON
/s/ William B. Marx, Jr.* Director August 29, 1997
______________________________
WILLIAM B. MARX, JR.
/s/ Terry W. Ward* Director August 29, 1997
______________________________
TERRY W. WARD
/s/ Frederick W. Whitridge,Jr.* Director August 29, 1997
______________________________
FREDERICK W. WHITRIDGE, JR.
By:/s/ George L. Spillane
______________________________
George L. Spillane,
Attorney-in-fact
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INDEX TO EXHIBITS
Exhibit
Number Description of Document
4.1 1992 Stock Option Plan, as amended.
4.2 Non-Qualified Stock Option Agreement between
California Microwave, Inc. and Frederick D.
Lawrence, dated effective as of July 17, 1997
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 Powers of Attorney.
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1992 Stock Option Plan
of
CALIFORNIA MICROWAVE, INC.
(as amended through July 11, 1997)
1. PURPOSE
The purpose of the 1992 Stock Option Plan (the
"Plan") is to enable California Microwave, Inc. (the
"Company") and its subsidiaries to attract and retain
officers and other key employees, directors, and consultants
and to provide them with additional incentive to advance the
interests of the Company. Options qualifying as incentive
stock options under Section 422 of the Internal Revenue Code
of 1954, as amended, and non-qualified options may be granted
under the Plan.
2. ADMINISTRATION
(a) The Plan shall be administered by the Board of
Directors of the Company, or by a committee (the "Committee")
of two or more directors selected by the Board.
(b) The Board of Directors or the Committee shall
have the power, subject to the express provisions of the
Plan:
(1) To determine the recipients of options
under the Plan, the time of grant of the options, and the
number of shares covered by the grant.
(2) To prescribe the terms and provisions of
each option granted (which need not be identical).
(3) To construe and interpret the Plan and
options, to establish, amend, and revoke rules and
regulations for the Plan's administration, and to make all
other determinations necessary or advisable for the
administration of the Plan.
3. SHARES SUBJECT TO THE PLAN
Subject to the provisions of Paragraph 7 (relating
to the adjustment upon changes in stock), the number of
shares which may be sold pursuant to options granted under
the Plan shall not exceed in the aggregate 3,100,000 shares
of Common Stock of the Company. Shares sold pursuant to
options granted under the Plan may be unissued shares or
reacquired shares. If any options granted under the Plan
shall for any reason terminate or expire without having been
exercised in full, the shares not purchased under such
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options shall be available again for the purposes of the
Plan.
4. ELIGIBILITY
(a) Options under this Plan may be granted to
officers and other key employees and consultants of the
Company and/or of its subsidiaries, provided that incentive
stock options may be granted hereunder only to officers and
other key employees (including directors who are also
officers or employees). No officer or key employee may
receive options under this Plan covering in excess of 100,000
shares in any fiscal year of the Company (subject to
adjustment in accordance with the provisions of paragraph 7
of the Plan), except that such limit is 200,000 shares with
respect to options granted in connection with inducing an
individual to become an employee of the Company.
(b) Each director of the Company who is not an
employee of the Company shall receive a non-qualified stock
option under the Plan immediately following each annual
meeting of shareholders of the Company. The first option
received by a director under this paragraph 4(b) shall cover
10,000 shares of common stock of the Company and each option
received by a director under this Plan thereafter shall cover
5,000 shares of common stock in the case of a director who is
a chair of a committee of the Board of Directors and 3,000
shares in the case of a director who is not. Each such
option shall have an exercise price equal to the fair market
value of the common stock of the Company on the date of the
annual meeting of shareholders to which it relates,
determined in accordance with the provisions of paragraph
5(a)(2) of this Plan. The number of options that directors
may receive pursuant to this paragraph 4(b) shall be
appropriately adjusted in accordance with the provisions of
paragraph 7 of this Plan. This paragraph 4(b) shall not be
amended more than once every six months, other than to comply
with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act or the rules or regulations
thereunder.
(c) Persons to whom options to purchase shares are
granted are hereinafter referred to as "optionee(s)."
5. TERMS OF OPTION AGREEMENTS
(a) All Option Agreements. Options granted
pursuant to the Plan shall be evidenced by agreements
specifying the number of shares covered thereby, in such form
as the Board of Directors or Committee shall from time to
time establish, which agreements may incorporate all or any
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of the terms hereof by reference and shall comply with and be
subject to the following terms and conditions:
(1) The Board of Directors or Committee shall
have the power to set the time or times within which each
option shall be exercisable and to at any time accelerate the
time or times of exercise (notwithstanding the terms of the
option). Unless the stock option agreement executed by the
optionee expressly otherwise provides, (i) an option granted
to an officer or other key employees or consultant shall
become exercisable on a cumulative basis as to one-quarter of
the total number of shares covered thereby on each of the
first, second, third, and fourth anniversary dates of the
date of grant of the option, (ii) an option granted to a
director who is not an employee of the Company shall vest
fully on the date of grant, and (iii) an option shall not be
exercisable after the expiration of ten years from the date
of grant. Any option granted to an executive officer or
director of the Company shall in no event be exercisable
until the elapse of six months from the date of its grant.
(2) Except as provided in Paragraph 5(b)
below, the exercise price of any stock option granted under
this Plan shall not be less than 100% of the fair market
value of the shares of common stock of the Company on the
date of the granting of the option. The fair market value
per share shall be the last sale price on the day the option
is granted as reported on the National Market System, or, if
such stock is not then reported on the National Market System
but quotations are reported on the National Association of
Securities Dealers Automated Quotations System, the average
of the bid and asked prices on the day the option is granted,
in either event as such price quotes are listed in The Wall
Street Journal, Western Edition (or if not so reported in The
Wall Street Journal, any other listing service or publication
known to the Board of Directors). If the stock is listed
upon an established stock exchange or exchanges, such fair
market value shall be deemed to be the closing price of the
common stock on the largest such stock exchange upon which
such stock is listed on the day the option is granted.
(3) To the extent that the right to purchase
shares has accrued hereunder, options may be exercised from
time to time by written notice to the Company, stating the
number of shares being purchased and accompanied by the
payment in full of the option price for such shares. Such
payment shall be made in cash or in shares of the outstanding
common stock of the Company which have been held by the
optionee for at least six months or in a combination of cash
and such stock, except that the Board of Directors or the
Committee in its sole discretion may authorize payment by any
optionee (for all or part of his or her purchase price) by a
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promissory note or such other from of legal consideration
that may be acceptable to the Board or Committee.
If shares of common stock are used in part or full
payment for the shares to be acquired upon exercise of the
option, such shares shall be valued for the purpose of such
exchange as of the date of exercise of the option in
accordance with the provisions of Subparagraph (2) above.
Any certificates for shares of outstanding common stock used
to pay the option price shall be accompanied by stock powers
duly endorsed in blank by the registered holder of the
certificate (with the signature thereon guaranteed). In the
event the certificates tendered by the optionee in such
payment cover more shares than are required for such payment,
the certificates shall also be accompanied by instructions
from the optionee to the Company's transfer agent with regard
to disposition of the balance of the shares covered thereby.
If payment by promissory note is authorized, the
interest rate, term, repayment schedule and other provisions
of such note shall be as specified by the Board of Directors
or the Committee; provided, however, that such note shall
bear interest at a rate not less than the applicable test
rate of interest prescribed by Regulation 1.483-1(d)(1) of
the Income Tax Regulations, as in effect at the time the
stock is purchased. The Board of Directors or Committee may
require that the optionee pledge his or her stock to the
Company for the purpose of securing the payment of such note,
and the Company may hold the certificate(s) representing such
stock in order to perfect its security interest.
An option may be exercised by a securities broker
acting on behalf of an optionee pursuant to authorization
instructions approved by the Company, provided that the
notice of exercise of such option shall be delivered, and the
exercise price of such option shall be paid in full, as
specified above.
(4) The Company at all times shall keep
available the number of shares of stock required to satisfy
options granted under the Plan.
(5) The Company may require any person to
whom an option is granted, his or her legal representative,
heir, legatee, or distributee, as a condition of exercising
any option granted hereunder, to give written assurance
satisfactory to the Company to the effect that such person is
acquiring the shares subject to the option for his or her own
account for investment and not with any present intention of
selling or otherwise distributing the same. The Company
reserves the right to place a legend on any share certificate
issued pursuant to this Plan to assure compliance with this
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paragraph. No shares of common stock of the Company shall be
required to be distributed until the Company shall have taken
such action, if any, as is then required to comply with the
provisions of the Securities Act of 1933 or any other then
applicable securities law.
(6) Neither a person to whom an option is
granted, nor such person's legal representative, heir,
legatee, or distributee, shall be deemed to be the holder of,
or to have any of the rights of a holder with respect to, any
shares subject to such option unless and until such person
has exercised his or her option pursuant to the terms
thereof.
(7) No stock option shall be transferrable by
the optionee otherwise than by will, or if the optionee dies
intestate, by the laws of descent and distribution of the
state of domicile of the optionee at the time of death,
provided that a non-qualified stock option may be transferred
by the optionee to a trust or other entity established by the
optionee for estate planning purposes. Except for exercises
of non-qualified stock options by trusts or entities
established by the optionee for estate planning purposes, all
stock options shall be exercisable during the lifetime of the
optionee only by the optionee.
(8) An option granted to an employee or
director shall terminate and may not be exercised if the
person to whom it is granted ceases to be employed by the
Company or by a subsidiary of the Company, or ceases to be a
director (unless such person continues as an employee), with
the following exceptions:
(i) If the employment or directorship is
terminated for any reason other than the person's death or
disability, he or she may at any time within not more than
three months after such termination exercise the option, but
only to the extent that it was exercisable by such person on
the date of such termination, or
(ii) If such person dies or becomes
disabled while in the employ of the Company or of a
subsidiary, or while a director, his or her option may be
exercised by his or her personal representatives, heirs or
legatees at any time within not more than twelve (12) months
following the date of death or disability, but only to the
extent such option was exercisable by such person on the date
of death or disability.
An option granted to a consultant shall terminate
in accordance with the terms specified in the option.
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(9) In no event may an option be exercised by
anyone after the expiration of the term of the option
established pursuant to Subparagraph 5(a)(1) hereof.
(10) Each option granted pursuant to this Plan
shall specify whether it is a non-qualified or an incentive
stock option, provided that the Board of Directors or
Committee may give the optionee the right to elect to receive
either an incentive or a non-qualified stock option.
(11) An option granted pursuant to this Plan
may have such other terms as the Board of Directors or
Committee in its discretion may deem necessary or appropriate
and shares issued upon exercise of any option hereunder may
be subject to such restrictions as the Board of Directors or
Committee deems appropriate.
(b) Incentive Stock Options. In addition to the
terms and conditions specified above, incentive stock options
granted under this Plan shall be subject to the following
terms and conditions:
(1) The aggregate fair market value
(determined as of the time the option is granted) of the
stock with respect to which incentive stock options are
exercisable for the first time by any optionee during any
calendar year (under all option plans of the Company or its
parent and subsidiary corporations) shall not exceed
$100,000.
(2) As to individuals otherwise eligible
under this Plan who own more than 10 percent of the total
combined voting power of all classes of stock of the Company
and its parent and subsidiary corporations, an incentive
option can be granted under this Plan to any such individual
only if at the time such option is granted the option price
is at least 110 percent of the fair market value of the stock
subject to the option and such option by its terms is not
exercisable after the expiration of five years from the date
such option is granted.
6. USE OF PROCEEDS FROM SHARES
Proceeds from the sale of shares pursuant to
options granted under the Plan shall be used for general
corporate purposes.
7. ADJUSTMENT UPON CHANGES IN SHARES
(a) If any change is made in the shares subject to
the Plan, or subject to any option granted under the Plan
(through merger, consolidation, reorganization,
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recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of
shares, exchange of shares, change in corporate structure or
otherwise), appropriate adjustments shall be made by the
Board of Directors or Committee in the maximum number of
shares subject to the Plan and the number of shares and price
per share of stock subject to outstanding options.
(b) Other than in the case of a reincorporation of
the Company in another state, in the event of (i) dissolution
or liquidation of the Company, (ii) a transaction in which
more than 50 percent of the shares of the Company that are
entitled to vote are exchanged, or (iii) any merger or
consolidation or other reorganization in which the Company is
not the surviving corporation (or in which the Company
becomes a subsidiary of another corporation), outstanding
options under this Plan shall become fully exercisable
immediately prior to any such event.
8. RIGHTS AS AN EMPLOYEE.
Nothing in this Plan or in any options awarded
hereunder shall confer upon any employee any right to
continue in the employ of the Company or of any of its
subsidiaries or interfere in any way with the right of the
Company or any such subsidiary to terminate such employee's
employment at any time.
9. WITHHOLDING TAX
There shall be deducted from the compensation of
any employee holding options under this Plan the amount of
any tax required by any governmental authority to be withheld
and paid over by the Company to such governmental authority
for the account of the person with respect to such options.
10. TERMINATION AND AMENDMENT OF PLAN
The Board of Directors may at any time terminate
this Plan or make such modifications of the Plan as it shall
deem advisable. Any modification which increases the number
of shares which may be issued under the Plan (other than
pursuant to Paragraph 7 hereof ), or changes the requirements
as to eligibility for participation in the Plan, and any
repricing of outstanding options (other than pursuant to
Paragraph 7 hereof), shall become effective only upon
approval of the holders of a majority of the securities of
the Company present, or represented, and entitled to vote at
a meeting duly held in accordance with the laws of the State
of Delaware.
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11. INDEMNIFICATION
In addition to such other rights of indemnification
as they may have as directors, the members of the Board of
Directors or Committee administering the Plan shall be
indemnified by the Company against the reasonable expenses,
including attorneys' fees actually and necessarily incurred
in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with
the Plan or any option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such
settlement is approved by legal counsel selected by the
Company) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding except in relation to matters
as to which it shall be adjudged in such action, suit or
proceeding that such member is liable for negligence or
misconduct in the performance of his duties; provided that
within 60 days after institution of any such action, suit or
proceeding, the member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the
same.
12. EFFECTIVE DATE AND DURATION OF THE PLAN
The 1992 Stock Option Plan shall become effective
on July 23, 1992. Any rights granted under this Plan must be
granted within ten (10) years of such effective date.
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NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT entered
into effective as of July 16, 1997 by and between California
Microwave, Inc., a Delaware corporation ("Company") and
Frederick D. Lawrence ("Optionee").
WITNESSETH:
WHEREAS, in connection with the employment of
Optionee the Company has granted to Optionee, effective as of
July 16, 1997, a non-qualified option to purchase certain
shares of its common stock, which option is not granted under
the Company's 1992 Stock Option Plan (the "Plan") but
nevertheless will be subject to the terms and conditions that
are contained in the Plan.
NOW, THEREFORE, Company and Optionee mutually agree
as follows:
1. Company hereby grants Optionee a non-qualified
option (the "Option") to acquire up to 300,000 shares of
the Company's common stock (the "Shares") at a price of
$16.25 per share.
2. The Option shall terminate on, and shall not be
exercisable after, 5:00 P.M. Pacific Time on July 16,
2007. The other terms of the Option shall be the same as
those provided for in the Plan, including the provisions
of paragraph 5(a)(1) of the Plan which specify the dates
on which the right to acquire shares under this option
will vest. The date of grant of this option is July 16,
1997. The Plan is attached hereto as Exhibit A and is
incorporated herein by this reference. Optionee
acknowledges that he has read the Plan and agrees to be
bound by its terms.
3. Any notice to be given by Optionee under the
terms of the Plan shall be deemed to have been duly given
if sent by certified mail, postage and certification
prepaid, to the Company at 555 Twin Dolphin Drive,
Redwood City, California 94065 Attention: Chief
Financial Officer.
-1-<PAGE>
IN WITNESS WHEREOF, the Company and Optionee have
caused this Agreement to be executed as of the day and year
first referred to above.
CALIFORNIA MICROWAVE, INC.
By:_____________________________
Name:
Title:
OPTIONEE
________________________________
Frederick D. Lawrence
Attachment A: California Microwave, Inc. 1992 Stock Option
Plan
-2-<PAGE>
Exhibit 5.1
September 4, 1997
California Microwave, Inc.
555 Twin Dolphin Drive
Redwood City, California 94065
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
Regulations promulgated thereunder, and the public offering
by the Company of up to 1,500,000 shares of Common Stock
issuable under the Company's 1992 Stock Option Plan and up to
300,000 shares issuable under the Company's Non-Qualified
Stock Option Agreement with Frederick D. Lawrence dated
effective as of July 16, 1997.
We have examined the Company's Registration
Statement of Form S-8 in the form to be filed with the
Securities and Exchange Commission on or about September 5,
1997 (the "Registration Statement"). We further have
examined the Restated Certificate of Incorporation of the
Company as certified by the Secretary of State of the State
of Delaware, the Bylaws and the minute books 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.
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<PAGE>
Exhibit 23.1
[Letterhead of Ernst & Young LLP]
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the 1992
Stock Option Plan of California Microwave, Inc. and the Non-
Qualified Stock Option Agreement between California
Microwave, Inc. and Fred Lawrence dated effective as of July
16, 1997, of our reports dated August 5, 1996 with respect to
the consolidated financial statements and schedule of
California Microwave, Inc. included in and incorporated by
reference in its Annual Report (Form 10-K) for the year ended
June 30, 1996, filed with the Securities and Exchange
Commission.
Ernst & Young LLP
Palo Alto, California
September 2, 1997<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS 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 Frederick D.
Lawrence and George L. Spillane, and each of them, as his
true and lawful attorney-in-fact and agent, each 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 1,500,000 shares of its common stock
issuable under the Company's 1992 Stock Option Plan and up to
300,000 shares of its common stock issuable under the
Non-Qualified Stock Option Agreement between the Company and
Frederick D. Lawrence dated effective as of July 17, 1997,
and any and all amendments (including post-effective
amendments) thereto and any Registration Statement relating
to the same offering pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in
connection therewith and with such Registration Statements,
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 29, 1997
/s/ Edward E. David, Jr. /s/ David B. Leeson
_______________________________ ________________________________
EDWARD E. DAVID, JR. DAVID B. LEESON
/s/ Alfred M. Gray /s/ Arthur H. Hausman
_______________________________ ________________________________
ALFRED M. GRAY ARTHUR H. HAUSMAN
/s/ William B. Marx, Jr. /s/ Terry W. Ward
_______________________________ ________________________________
WILLIAM B. MARX, Jr. TERRY W. WARD
/s/ Frederick W. Whitridge, Jr. /s/ J. J. Adorjan
_______________________________ ________________________________
FREDERICK W. WHITRIDGE, JR. J.J. ADORJAN<PAGE>
