<PAGE> 1
As filed with the Securities and Exchange Commission on December 11, 1998
Registration Statement No.________
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)
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Delaware 94-1668412
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
1143 Borregas Avenue, Sunnyvale, California 94089
(Address of Principal Executive Offices) (Zip Code)
Employee Stock Purchase Plan
(Full title of the plan)
Kenneth J. Wees, Vice President, General Counsel and Secretary
California Microwave, Inc.
1143 Borregas Avenue
Sunnyvale, California 94089
(Name and address, including zip code, of agent for service)
(408) 732-4000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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- --------------------------------------------------------------------------------------------------------
Title of Securities
to be Registered Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Offering Price per Aggregate Offering Registration
Share* Price* Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.10 per share:
Employee Stock
Purchase Plan 300,000 $11.25 $3,375,000 $1,164
</TABLE>
*Estimated solely for the purpose of computing the
registration fee pursuant to Rule 457(c), on the basis of the closing sale price
of the Registrant's Common Stock as reported on the Nasdaq National Market on
December 8, 1998
<PAGE> 2
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, 1998, 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
quarter ended September 30, 1998, 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,
1998;
(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.
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
<PAGE> 3
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.
Item 8. EXHIBITS.
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Exhibit
Number Description of Document
- ------- -----------------------
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4.1 Employee Stock Purchase Plan, as amended through August 1998.
(Incorporated by Reference to Exhibit 10.1 to the Registrant's
Form 10-K Annual Report for its fiscal year ended June 30,
1998.)
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.
</TABLE>
2
<PAGE> 4
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 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.
3
<PAGE> 5
(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 Act and will be governed by the final
adjudication of such issue.
4
<PAGE> 6
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 the City of Sunnyvale, State of California on the tenth day
of December, 1998.
CALIFORNIA MICROWAVE, INC.
/s/ Frederick D. Lawrence
-----------------------------------------
FREDERICK D. LAWRENCE
President and 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.
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/s/ Frederick D. Lawrence
- ----------------------------- President, Chief Executive December 10, 1998
FREDERICK D. LAWRENCE Officer, Chairman of the
Board
/s/ Donna S. Birks
- ----------------------------- Executive Vice President December 10, 1998
DONNA S. BIRKS and Chief Financial Officer
(principal financial officer
and principal accounting
officer)
/s/ Leslie G. Denend* Director December 10, 1998
- -----------------------------
LESLIE G. DENEND
/s/ George A. Joulwan* Director December 10, 1998
- -----------------------------
GEORGE A. JOULWAN
/s/ William B. Marx, Jr.* Director December 10, 1998
- -----------------------------
WILLIAM B. MARX, JR.
/s/ Terry W. Ward* Director December 10, 1998
- -----------------------------
TERRY W. WARD
</TABLE>
5
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/s/ Fred Whitridge, Jr.* Director December 10,1998
- -----------------------------
FRED WHITRIDGE, JR.
</TABLE>
*By: /s/ Kenneth J. Wees
------------------------
KENNETH J. WEES,
Attorney-in-fact
6
<PAGE> 8
INDEX TO EXHIBITS
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Exhibit
Number Description of Document
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4.1 Employee Stock Purchase Plan, as amended. (Incorporated by
reference to Exhibit 10.1 to Registrant's Form 10-K Annual
Report for its fiscal year ended June 30, 1998.)
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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<PAGE> 1
Exhibit 5.1
December 10, 1998
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 300,000 shares of Common Stock issuable under the Company's Employee Stock
Purchase Plan.
We have examined the Company's Registration Statement on Form
S-8 in the form to be filed with the Securities and Exchange Commission on or
about December 11, 1998 (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> 1
Exhibit 23.1
[Letterhead of Ernst & Young LLP]
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the reference in the Registration Statement
(Form S-8) pertaining to the Employee Stock Purchase Plan of California
Microwave, Inc. and to the incorporation by reference therein of our report
dated August 10, 1998, with respect to the consolidated financial statements and
schedule of California Microwave, Inc. incorporated by reference in its Annual
Report on Form 10-K for the year ended June 30, 1998, filed with the Securities
and Exchange Commission.
Ernst & Young LLP
Palo Alto, California
December 8, 1998
<PAGE> 1
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 Kenneth J. Wees, 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 300,000 shares of its common stock issuable under the Company's
Employee Stock Purchase Plan, and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and all other documents in connection therewith and with such
Registration Statement, 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: August 20, 1998
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/s/ Frederick D. Lawrence /s/ William B. Marx, Jr.
- ------------------------------ -----------------------------------
FREDERICK D. LAWRENCE WILLIAM B. MARX, JR.
/s/ Alfred M. Gray /s/ Terry W. Ward
- ------------------------------ -----------------------------------
ALFRED M. GRAY TERRY W. WARD
/s/ Arthur H. Hausman /s/ Fred W. Whitridge, Jr.
- ------------------------------ -----------------------------------
ARTHUR H. HAUSMAN FRED W. WHITRIDGE, JR.
/s/ George A. Joulwan
- ------------------------------
GEORGE A. JOULWAN
</TABLE>
<PAGE> 2
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that Leslie G. Denend
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 Kenneth J. Wees, 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 300,000 shares of its common stock issuable under the Company's
Employee Stock Purchase Plan, and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and all other documents in connection therewith and with such
Registration Statement, 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: September 14, 1998
/s/ Leslie G. Denend
- ------------------------------
Leslie G. Denend
