As filed with the Securities and Exchange Commission on December 29, 1999
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ANAREN MICROWAVE, INC.
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(Exact name of registrant as specified in its charter)
New York 16-0928561
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6635 Kirkville Road, East Syracuse, New York 13057
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(Address of Principal Executive Offices) (Zip Code)
Anaren Microwave, Inc. Restricted Stock Award Program
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(Full title of the plan)
Lawrence A. Sala, President and Chief Executive Officer
6635 Kirkville Road, East Syracuse, New York 13057
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(Name and address of agent for service)
(315) 432-8909
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(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum Maximum
Securities Amount offering Aggregate Amount of
to be to be price Offering registration
registered registered per share* price* fee
==============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $.01 par 25,000 shares $50.875 $1,271,875.00 $335.78
value per share
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</TABLE>
* Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee and based upon the average high and low prices reported by the
Nasdaq National Market on December 23, 1999.
Exhibit Index on page 4.
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Page 1 of 6
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Anaren Microwave, Inc. (the "Company")
(Exchange Act File No. 000-06620) with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference and made a part hereof:
(a) Annual Report on Form 10-K for the year ended June 30, 1999, filed
with the Commission on September 27, 1999;
(b) Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999, filed with the Commission on November 25, 1999;
and
(c) The descriptions of the Company's Common Stock contained in the
Company's registration statements filed under section 12 of the
Securities Exchange Act of 1934, including any amendments or reports
filed for the purpose of updating such descriptions.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Page 2 of 6
<PAGE>
Item 6. Indemnification of Officers and Directors.
Under the New York Business Corporation Law ("NYBCL"), a corporation may
indemnify its directors and officers made, or threatened to be made, a party to
any action or proceeding, except for stockholder derivative suits, if such
director or officer acted in good faith, for a purpose which he or she
reasonably believed to be in or, in the case of service to another corporation
or enterprise, not opposed to, the best interests of the corporation, and, in
criminal proceedings, had no reasonable cause to believe his or her conduct was
unlawful. In the case of stockholder derivative suits, the corporation may
indemnify a director or officer if he or she acted in good faith for a purpose
which he or she reasonably believed to be in or, in the case of service to
another corporation or enterprise, not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of (i) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (ii) any claim, issue or matter as to which such person has been adjudged
to be liable to the corporation, unless and only to the extent that the court in
which the action was brought, or, if no action was brought, any court of
competent jurisdiction, determines upon application that, in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such portion of the settlement amount and expenses as the court
deems proper.
Any person who has been successful on the merits or otherwise in the
defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered by
a court pursuant to the NYBCL, any indemnification under the NYBCL pursuant to
the above paragraph may be made only if authorized in the specific case and
after a finding that the director or officer met the requisite standard of
conduct by (i) the disinterested directors if a quorum is available, (ii) the
board upon the written opinion of independent legal counsel or (iii) the
stockholders.
The indemnification described above under the NYBCL is not exclusive of
other indemnification rights to which a director or officer may be entitled,
whether contained in the certificate of incorporation or bylaws or when
authorized by (i) such certificate of incorporation or bylaws; (ii) a resolution
of stockholders, (iii) a resolution of directors or (iv) an agreement providing
for such indemnification, provided that no indemnification may be made to or on
behalf of any director or officer if a judgment or other final adjudication
adverse to the director or officer establishes that his or her acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled.
The foregoing statement is qualified in its entirety by reference to
Sections 715, 717, 721 through 725 of the NYBCL.
The Bylaws of the Company provide that the Company shall indemnify any
officer or director who is made or is threatened to be made a party to an action
by or in right of the Company to procure a judgment in its favor by reason of
the fact that he, his testator or intestate, is or was a director or officer of
the Company or is or was serving at the request of the Company as a director or
officer of any other corporation of any type or kind, domestic or
Page 3 of 6
<PAGE>
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise against amounts paid in settlement and reasonable expenses,
including attorneys' fees, actually and necessarily incurred by him, in
connection with the defense or settlement of such action, or in connection with
an appeal therein, if such director or officer acted in good faith for a purpose
which he reasonably expected to be in or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, not opposed to the best interests of the Company, except that
no indemnification shall be made in respect to (1) a threatened action, or a
pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Company; unless and only to the extent that the court in which the action
was brought, or if no action was brought, any court of competent jurisdiction,
determines upon application that, in view of the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such portion of the
settlement amount and expenses as the court deems proper.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 Opinion of Bond, Schoeneck & King, LLP as to the validity of certain
shares being registered.
23.1 Consent of KPMG LLP
23.2 Consent of Bond, Schoeneck & King, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included at page 6 of this Registration Statement).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. (a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement 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.
(b) 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.
Page 4 of 6
<PAGE>
(c) 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.
2. 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.
3. 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.
Page 5 of 6
<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 the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in East Syracuse, New York on the 29th day of December, 1999.
ANAREN MICROWAVE, INC.
By: /s/ Lawrence A. Sala
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Lawrence A. Sala
President and Chief Executive Officer
Each person whose signature appears below hereby authorizes Lawrence A.
Sala, as attorney-in-fact, to execute in the name of such person and to file
this registration statement (including any changes that he may deem necessary or
appropriate) and any amendments, including post-effective amendments, hereto.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Lawrence A. Sala
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Lawrence A. Sala President and December 29, 1999
Chief Executive Officer
(Principal Executive Officer)
/s/ Joseph E. Porcello
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Joseph E. Porcello Vice President of Finance December 29, 1999
(Principal Financial and
Accounting Officer)
/s/ Hugh A. Hair
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Hugh A. Hair Chairman of the Board December 29, 1999
/s/ Carl W. Gerst
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Carl W. Gerst Vice Chairman of the Board December 29, 1999
/s/ Herbert I. Corkin
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Herbert I. Corkin Director December 29, 1999
/s/ Dale F. Eck
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Dale F. Eck Director December 29, 1999
/s/ Abraham Manber
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Abraham Manber Director December 29, 1999
/s/ David Wilemon
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David Wilemon Director December 29, 1999
/s/ Matthew Robison
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Matthew Robison Director December 29, 1999
/s/ Brian P. Kelly
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Brian P. Kelly Director December 29, 1999
</TABLE>
Page 6 of 6
Exhibit 5.1
December 29, 1999
Anaren Microwave, Inc.
6635 Kirkville Road
East Syracuse, New York 13057
Ladies and Gentlemen:
We have acted as counsel to Anaren Microwave, Inc., a New York Corporation
(the "Company") in connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed on this date with the United States Securities
and Exchange Commission with respect to the Anaren Microwave, Inc. Restricted
Stock Award Program (the "Program").
In rendering this opinion, we have examined and relied upon originals or
copies, authenticated or certified to our satisfaction, of such corporate
records of the Company, communications or certifications of public officials,
communications with or certificates of officers, directors and representatives
of the Company, and such other documents as we have deemed necessary to the
issuance of the opinion set forth herein. In making this examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
tendered to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies.
Based upon the foregoing, it is our opinion that the shares of the
Company's Common Stock, par value $.01 per share registered pursuant to the
Registration Statement and offered by the Company pursuant to the Program will
be, assuming that such shares are validly authorized at the time of issuance and
assuming that no change occurs in the applicable law or pertinent facts, when
issued in accordance with the Program, legally issued, fully paid and
non-assessable.
We hereby consent to the use of this letter as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Bond, Schoeneck & King, LLP
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
Anaren Microwave, Inc.:
We consent to incorporation by reference in the registration statement for the
Anaren Microwave, Inc. Restricted Stock Award Program on Form S-8 of Anaren
Microwave, Inc. of our report dated August 2, 1999, relating to the consolidated
balance sheets of Anaren Microwave, Inc. and subsidiaries as of June 30, 1999
and 1998, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended June
30, 1999, which report appears in the June 30, 1999 annual report on Form 10-K
of Anaren Microwave, Inc.
/s/ KPMG LLP
December 27, 1999
Syracuse, New York
