As filed with the Securities and Exchange Commission on July 30, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
MICROWAVE POWER DEVICES, INC.
-----------------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3622306
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
49 Wireless Boulevard
Hauppauge, New York 11788
(Address of principal executive offices) (Zip code)
MICROWAVE POWER DEVICES, INC. 1996 STOCK OPTION PLAN
(Full title of the Plan)
EDWARD J. SHUBEL
CHIEF EXECUTIVE OFFICER
MICROWAVE POWER DEVICES, INC.
49 WIRELESS BOULEVARD
HAUPPAUGE, NEW YORK 11788
(516) 231-1400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
Copies of all communications to:
Stephen W. Rubin, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
---------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<PAGE>
====================================================================================================================================
Amount to be Proposed maximum Proposed maximum Amount of
Title of securities to be registered registered(1) offering price per aggregate offering Registration Fee
share(2) price(2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, par value $.01 per share 500,000 shares $6.156 $3,078,000 $908.01
====================================================================================================================================
</TABLE>
(1) The maximum number of shares as to which awards may be granted under the
Microwave Power Devices, Inc. 1996 Stock Option Plan (the "Plan"). Pursuant
to Rule 416 of the Securities Act of 1933, as amended, this Registration
Statement also registers such additional indeterminate number of shares of
Common Stock as may be offered or issued to adjust for any stock splits,
stock dividends or similar transactions, as provided for by the Plan.
(2) Computed pursuant to Rule 457(c) and (h) promulgated under the Securities
Act of 1933 and is the product of multiplying the 500,000 shares as to
which options may be granted under the Plan by $6.156, which is the average
of the high and low price of the Registrant's Common Stock reported on the
Nasdaq National Market on July 28, 1998. The price stated is estimated
solely for the purpose of calculating the Registration Fee.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The Section 10(a) prospectus for the Microwave Power Devices, Inc.
1996 Stock Option Plan is not being filed with the Securities and Exchange
Commission (the "Commission") as part of this Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Microwave Power Devices, Inc., a Delaware corporation (the "Company"
or the "Registrant"), is registering herewith 500,000 shares of its common
stock, par value $.01 per share (the "Common Stock"), which are issuable
pursuant to the 1996 Stock Option Plan (the "Plan").
Item 3. Incorporation of Documents By Reference.
------ ---------------------------------------
The following document filed with the Securities and Exchange
Commission by the Company is incorporated herein by reference:
(1) The Registration Statement on Form S-8, Registration No.
333-34107 dated August 21, 1997.
Item 8. Exhibits.
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4.1 Microwave Power Devices, Inc. 1996 Stock Option Plan
*4.2 Microwave Power Devices, Inc. 1996 Stock Option Plan
Amendment No. 1
*23.1 Consent of Arthur Andersen LLP
*23.3 Consent of Proskauer Rose LLP
*24 Power of Attorney (included on signature page)
* Filed herewith.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Hauppauge, State of New York on July 30, 1998.
MICROWAVE POWER DEVICES, INC.
/s/ Edward J. Shubel
-----------------------------------------
Edward J. Shubel
Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Edward J. Shubel and Paul Donofrio, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, to act, without the other, for him and in
his name, place, and stead, in any and all capacities, to sign a Registration
Statement on Form S-8 of Microwave Power Devices, Inc. and any or all amendments
(including post-effective amendments) thereto, relating to the registration,
under the Securities Act of 1933, as amended, of shares of Common Stock of the
Company to be issued pursuant to the Company's 1996 Stock Option Plan and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as full to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, their substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Edward J. Shubel Chief Executive Officer; Director July 30, 1998
- -----------------------
Edward J. Shubel
/s/ Paul E. Donofrio Chief Financial Officer July 30, 1998
- -----------------------
Paul E. Donofrio
Chairman of the Board July __, 1998
- ------------------------
George J. Sbordone
/s/ Merril M. Halpern Director July 30, 1998
- ------------------------
Merril M. Halpern
/s/ A. Lawrence Fagan Director July 30, 1998
- ------------------------
A. Lawrence Fagan
/s/ Alfred Weber Director July 25, 1998
- ------------------------
Alfred Weber
/s/ David J. Aldrich Director July 28, 1998
- ------------------------
David J. Aldrich
/s/ Warren A. Law Director July 24, 1998
- ------------------------
Warren A. Law
/s/ James S. Silver Director July 30, 1998
- ------------------------
James S. Silver
<PAGE>
Exhibit 4.2
Microwave Power Devices, Inc.
1996 Stock Option Plan
I. Purposes of the Plan
The purposes of this 1996 Stock Option Plan (the "Plan") are to enable
Microwave Power Devices, Inc. (the "Company") and Designated Subsidiaries (as
defined herein) to attract, retain and motivate certain key employees and
certain consultants who are important to the success and growth of the business
of the Company and Designated Subsidiaries and to create a long-term mutuality
of interest between such persons and the stockholders of the Company by granting
the options to purchase Common Stock (as defined herein).
II. Definitions
In addition to the terms defined elsewhere herein, for purposes of
this Plan, the following terms will have the following meanings when used herein
with initial capital letters:
A. "Act" means the Securities Exchange Act of 1934, as amended, and
all rules and regulations promulgated thereunder.
B. "Board" means the Board of Directors of the Company.
C. "Cause" means, with respect to a Participant's Termination of
Employment, (i) in the case where there is no employment agreement between the
Company and the Participant, or where there is an employment agreement, but such
agreement does not define cause (or words of like import), termination due to a
Participant's dishonesty, fraud, insubordination or refusal to perform for any
reason other than illness or incapacity or materially unsatisfactory performance
of his or her duties for the Company, or (ii) in the case where there is an
employment agreement between the Company and the Participant, termination that
is or would be deemed to be for cause (or words of like import) as defined under
such employment agreement.
D. "Code" means the Internal Revenue Code of 1986, as amended.
E. "Committee" means a committee of the Board appointed from time to
time by the Board consisting of two or more non-employee directors, each of whom
shall be an "outside director" as defined in Section 162(m) of the Code and a
"disinterested person" as defined in Rule 16b-3 promulgated under Section 16(b)
of the Exchange Act, except that if and
<PAGE>
to the extent that no Committee exists which has the authority to
administer the Plan, the func tions of the Committee shall be exercised by the
Board.
F. "Common Stock" means the common stock of the Company, par value
$.01 per share, any Common Stock into which the Common Stock may be converted
and any Common Stock resulting from any reclassification of the Common Stock.
G. "Company" means Microwave Power Devices, Inc., a Delaware
corporation.
H. "Designated Subsidiary" means any corporation that is defined as a
subsidiary corporation in Section 424(f) of the Code. An entity shall be deemed
a Designated Subsidiary only for such periods as the requisite ownership
relationship is maintained.
I. "Disability" means a permanent and total disability, rendering a
Participant unable to perform the duties performed by the Participant for the
Company or Designated Subsidiaries by reason of physical or mental disability
for a period of four consecutive months, or for a period of more than an
aggregate of six months in any twelve month period. A Disability shall only be
deemed to occur at the time of the determination by the Committee of the
Disability.
J. "Eligible Consultants" means the executive-level consultants of the
Company and Designated Subsidiaries who are eligible to participate in the Plan,
as determined by the Committee in its sole discretion.
K. "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and all rules and regulations promulgated thereunder.
L. "Fair Market Value" means, for purposes of this Plan, unless
otherwise required by any applicable provision of the Code or any regulations
issued thereunder, as of any date, the last sales prices reported for the Common
Stock on the applicable date, (i) as reported by the principal national
securities exchange in the United States on which it is then traded, or (ii) if
not traded on any such national securities exchange, as quoted on an automated
quotation system sponsored by the National Association of Securities Dealers, or
if the sale of the Common Stock shall not have been reported or quoted on such
date, on the first day prior thereto on which the Common Stock was reported or
quoted. If the Common Stock is not readily tradable on a national securities
exchange or any system sponsored by the National Association of Securities
Dealers, its Fair Market Value shall be set by the Committee based upon its
assessment of the cash price that would be paid between a fully informed buyer
and seller under no compulsion to buy or sell (without giving effect to any
discount for a minority interest or any restrictions on transferability or any
lack of liquidity of the stock).
M. "Incentive Stock Option" means any Option awarded under this Plan
intended to be and designated as an "Incentive Stock Option" within the meaning
of Section 422 of the Code.
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N. "Key Employee" means any person who is an officer or other valuable
employee of the Company or a Designated Subsidiary, as determined by the
Committee in its sole discretion. A Key Employee may, but need not, be an
officer of the Company or a Designated Subsidiary.
O. "Non-Qualified Stock Option" means any Option awarded under this
Plan that is not an Incentive Stock Option.
P. "Option" means the right to purchase one Share at a prescribed
purchase price on the terms specified in the Plan.
Q. "Participant" means an Eligible Consultant or Key Employee who is
granted Options under the Plan which Options have not expired; provided,
however, that any Eligible Consultant of the Company and Designated Subsidiary
shall be a Participant for purposes of the Plan solely with respect to grants of
Non-Qualified Stock Options and shall be ineligible for Incentive Stock Options.
R. "Person" means any individual or entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person as
the context may require.
S. "Retirement" means a Termination of Employment without cause from
the Company and/or a Designated Subsidiary by a Participant who is at least age
65 or, with the consent of the Committee, such earlier date before age 65 but
after age 55.
T. "Securities Act" means the Securities Act of 1933, as amended, and
all rules and regulations promulgated thereunder.
U. "Share" means a share of Common Stock.
V. "Ten Percent Shareholder" means a person owning Common Stock of the
Company possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company as defined in Section 422 of the
Code.
W. "Termination of Employment" with respect to an individual means
that individual is no longer actively employed by the Company or a Designated
Subsidiary on a full-time basis, irrespective of whether or not such employee is
receiving salary continuance pay, is continuing to participate in other employee
benefit programs or is otherwise receiving severance type payments. In the event
an entity shall cease to be a Designated Subsidiary, there shall be deemed a
Termination of Employment of any individual who is not otherwise an employee of
the Company or another Designated Subsidiary at the time the entity ceases to be
a Designated Subsidiary. A Termination of Employment shall not include a leave
of absence approved for purposes of the Plan by the Committee. For purposes of
this plan, a full-time employee is a person who is scheduled to work at least
thirty (30) hours per week. With respect to an Eligible Consultant, a
Termination of Employment shall occur upon the termination of the consulting
3
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contract or the termination of the performance of consulting services, as
determined by the Committee in its sole discretion.
X. "Withholding Election" means the election set forth in Article XV.
III. Effective Date
The Plan shall become effective on March 5, 1996 (the "Effective
Date"), subject to its approval by the majority of the Common Stock (at the time
of approval) within one year after the Plan is adopted by the Board of Directors
of the Company. Grants of Options by the Committee under the Plan may be made on
or after the Effective Date of the Plan, including retroactively, provided that,
if the Plan is not approved by the majority of the Common Stock (at the time of
approval), all Options which have been granted by the Committee shall be null
and void. No Options may be exercised prior to the approval of the Plan by the
majority of the Common Stock (at the time of approval).
IV. Administration
A. Duties of the Committee. The Plan shall be administered and
interpreted by the Committee. The Committee shall have full authority to
interpret the Plan and to decide any questions and settle all controversies and
disputes that may arise in connection with the Plan; to establish, amend and
rescind rules for carrying out the Plan; to administer the Plan, subject to its
provisions; to select Participants in, and grant Options under, the Plan; to
determine the terms, exercise price and form of exercise payment for each Option
granted under the Plan; to determine the consideration to be received by the
Company in exchange for the grant of the Options; to determine whether and to
what extent Incentive Stock Options and Non-Qualified Stock Options, or any
combination thereof, are to be granted hereunder to one or more Key Employees
and whether and to what extent Non-Qualified Stock Options are to be granted
hereunder to one or more Eligible Consultants; to prescribe the form or forms of
instruments evidencing Options and any other instruments required under the Plan
(which need not be uniform) and to change such forms from time to time; to
determine whether, to what extent and under what circumstances to permit
reloads, such that to the extent that Options are settled with Common Stock,
that Non-Qualified Stock Options may be granted for the same number of shares of
the same or different types, based on such terms as the Committee may determine,
in its sole discretion; and to make all other determinations and to take all
such steps in connection with the Plan and the Options as the Committee, in its
sole discretion, deems necessary or desirable. The Committee shall not be bound
to any standards of uniformity or similarity of action, interpretation or
conduct in the discharge of its duties hereunder, regardless of the apparent
similarity of the matters coming before it. Any determination, action or
conclusion of the Committee shall be final, conclusive and binding on all
parties. Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify the Plan under
4
<PAGE>
Section 422 of the Code, or, without the consent of the Participants affected,
to disqualify any Incentive Stock Option under such Section 422.
B. Advisors. The Committee may employ such legal counsel, consultants
and agents as it may deem desirable for the administration of the Plan, and may
rely upon any advice or opinion received from any such counsel or consultant and
any computation received from any such consultant or agent. Expenses incurred by
the Committee in the engagement of such counsel, consultant or agent shall be
paid by the Company.
C. Indemnification. To the maximum extent permitted by applicable law,
no officer of the Company or member or former member of the Committee or of the
Board shall be liable for any action or determination made in good faith with
respect to the Plan or any Option granted under it. To the maximum extent
permitted by applicable law or the Certificate of Incorporation or By-Laws of
the Company, each officer and member or former member of the Committee or of the
Board shall be indemnified and held harmless by the Company against any cost or
expense (including reasonable fees of counsel reasonably acceptable to the
Company) or liability (including any sum paid in settlement of a claim with the
approval of the Company), and advanced amounts necessary to pay the foregoing at
the earliest time and to the fullest extent permitted, arising out of any act or
omission to act in connection with the Plan, except to the extent arising out of
such officer's, member's or former member's own fraud or bad faith. Such
indemnification shall be in addition to any rights of indemnification the
officers, members or former members may have as directors under applicable law
or under the Certificate of Incorporation or By-Laws of the Company or
Designated Subsidiary. Notwithstanding anything else herein, this
indemnification will not apply to the actions or determinations made by an
individual with regard to Options granted to him or her under this Plan.
D. Meetings of the Committee. The Committee shall adopt such rules and
regulations as it shall deem appropriate concerning the holding of its meetings
and the transaction of its business. Any member of the Committee may be removed
from the Committee at any time either with or without cause by resolution
adopted by the Board, and any vacancy on the Committee may at any time be filled
by resolution adopted by the Board. All determinations by the Committee shall be
made by the affirmative vote of a majority of its members. Any such
determination may be made at a meeting duly called and held at which a majority
of the members of the Committee are in attendance in person or through
telephonic communication. Any determination set forth in writing and signed by
all the members of the Committee shall be as fully effective as if it had been
made by a majority vote of the members at a meeting duly called and held.
E. Determinations. Each determination, interpretation or other action
made or taken pursuant to the provisions of this Plan by the Committee shall be
final, conclusive and binding for all purposes and upon all persons, including,
without limitation, the Participants, the Company and Designated Subsidiaries,
directors, officers and other employees of the Company and Designated
Subsidiaries, and the respective heirs, executors, administrators, personal
representatives and other successors in interest of each of the foregoing.
5
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V. Shares; Adjustment Upon Certain Events
A. Shares to be Delivered; Fractional Shares. Shares to be issued
under the Plan shall be made available, at the sole discretion of the Board,
either from authorized but unissued Shares or from issued Shares reacquired by
the Company and held in treasury. No fractional Shares will be issued or
transferred upon the exercise of any Option. In lieu thereof, the Company shall
pay a cash adjustment equal to the same fraction of the Fair Market Value of one
Share on the date of exercise.
B. Number of Shares. Subject to adjustment as provided in this Article
V, the maximum aggregate number of Shares that may be issued under the Plan
shall be 975,000. If Options are for any reason canceled, or expire or terminate
unexercised, the Shares covered by such Options shall again be available for the
grant of Options, subject to the foregoing limit.
C. Adjustments; Recapitalization, etc. The existence of the Plan and
the Options granted hereunder shall not affect in any way the right or power of
the Board or the stockholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other change in the Company's
capital structure or its business, any merger or consolidation of the Company,
any issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting Common Stock, the dissolution or liquidation of the Company or
Designated Subsidiaries, any sale or transfer of all or part of its assets or
business or any other corporate act or proceeding. The Committee may make or
provide for such adjustments in the maximum number of Shares specified in
Article V(B), in the number of Shares covered by outstanding Options granted
hereunder, and/or in the Purchase Price (as hereinafter defined) applicable to
such Options or such other adjustments in the number and kind of securities
received upon the exercise of Options, as the Committee in its sole discretion
may determine is equitably required to prevent dilution or enlargement of the
rights of Participants or to otherwise recognize the effect that otherwise would
result from any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company,
merger, consolidation, spin-off, reorganization, partial or complete
liquidation, issuance of rights or warrants to purchase securities or any other
corporate transaction or event having an effect similar to any of the foregoing.
In the event of a merger or consolidation in which the Company is not the
surviving entity or in the event of any transaction that results in the
acquisition of substantially all of the Company's outstanding Common Stock by a
single person or entity or by a group of persons and/or entities acting in
concert, or in the event of the sale or transfer of all of the Company's assets
(the foregoing being referred to as "Acquisition Events"), then the Committee
may in its sole discretion terminate all outstanding Options effective as of the
consummation of the Acquisition Event by delivering notice of termination to
each Participant at least 20 days prior to the date of consummation of the
Acquisition Event; provided that, during the period from the date on which such
notice of termination is delivered to the consummation of the Acquisition Event,
each Participant shall have the right to exercise in full all the Options that
are then outstanding (without regard to limitations on exercise otherwise
contained in the Options) but contingent on occurrence of the Acquisition Event,
and, provided that, if the Acquisition Event does not take place within a
specified period after giving such notice for any
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reason whatsoever, the notice and exercise shall be null and void. Except as
hereinbefore expressly provided, the issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any
class, for cash, property, labor or services, upon direct sale, upon the
exercise of rights or warrants to subscribe therefor or upon conversion of
shares or other securities, and in any case whether or not for fair value,
shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number and class of shares and/or other securities or
property subject to Options theretofore granted or the Purchase Price.
VI. Awards and Terms of Options
A. Grant. The Committee may grant Non-Qualified Stock Options or
Incentive Stock Options, or any combination thereof to Key Employees, and
Non-Qualified Stock Options to Eligible Consultants, provided that the maximum
number of Shares with respect to which Options may be granted to any Key
Employee or any Eligible Consultant during any calendar year may not exceed
150,000. To the extent that the maximum number of authorized Shares with respect
to which Options may be granted are not granted in a particular calendar year to
a Participant (beginning with the year in which the Participant receives his or
her first grant of Options hereunder), such ungranted Options for any year shall
increase the maximum number of Shares with respect to which Options may be
granted to such Participant in subsequent calendar years during the term of the
Plan until used. To the extent that any Option does not qualify as an Incentive
Stock Option (whether because of its provisions or the time or manner of its
exercise or otherwise), such Option or the portion thereof which does not
qualify, shall constitute a separate Non-Qualified Stock Option. Each Option
shall be evidenced by an Option agreement (the "Option Agreement") in such form
as the Committee shall approve from time to time.
B. Exercise Price. The purchase price per Share (the "Purchase Price")
deliverable upon the exercise of a Non-Qualified Stock Option shall be
determined by the Committee and set forth in a Participant's Option Agreement,
provided that the Purchase Price shall not be less than the par value of a
Share. The Purchase Price deliverable upon the exercise of an Incentive Stock
Option shall be determined by the Committee and set forth in a Participant's
Option Agreement but shall be not less than 100% of the Fair Market Value of a
Share at the time of grant; provided, however, if an Incentive Stock Option is
granted to a Ten Percent Shareholder, the Purchase Price shall be no less than
110% of the Fair Market Value of a Share.
C. Number of Shares. The Option Agreement shall specify the number of
Options granted to the Participant, as determined by the Committee in its sole
discretion.
D. Exercisability. At the time of grant, the Committee shall specify
when and on what terms the Options granted shall be exercisable. In the case of
Options not immediately exercisable in full, the Committee may at any time
accelerate the time at which all or any part of the Options may be exercised and
may waive any other conditions to exercise. No Option shall be exercisable after
the expiration of ten years from the date of grant; provided, however,
the
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term of an Incentive Stock Option granted to a Ten Percent Shareholder may
not exceed five years. Each Option shall be subject to earlier
termination as provided in Article VII below.
E. Exercise of Options.
1. A Participant may elect to exercise one or more Options
by giving written notice to the Committee of such election and of the
number of Options such Participant has elected to exercise,
accompanied by payment in full of the aggregate Purchase Price for the
number of Shares for which the Options are being exercised.
2. Shares purchased pursuant to the exercise of Options
shall be paid for at the time of exercise as follows:
(a) in cash or by check, bank draft or money order
payable to the order of Company;
(b) in the form shares of Common Stock owned by
the Participant (and for which the Participant has good
title free and clear of any liens and encumbrances);
(c) by agreeing to surrender then exercisable
Options equivalent in value;
(d) if the Shares are traded on a national
securities exchange, through the delivery of irrevocable
instructions to a broker to deliver promptly to the Company
an amount equal to the aggregate Purchase Price by payment
through a cash or margin arrangement with a broker;
(e) in shares otherwise issuable upon exercise of
the Option; or
(f) on such other terms and conditions as may be
acceptable to the Committee (which may include payment in
full or in part by the transfer of Shares which have been
owned by the Participant for at least 6 months or the
surrender of Options owned by the Participant) and in
accordance with applicable law. No shares shall be issued
until payment, as provided herein, has been made or provided
for.
3. Upon receipt of payment, the Company shall deliver to the
Participant as soon as practicable a certificate or certificates for
the Shares then purchased.
F. Incentive Stock Option Limitations. To the extent that the
aggregate Fair Market Value (determined as of the time of grant) of the Common
Stock with respect to which Incentive Stock Options are exercisable for
the first time by the Participant during any calendar year under the Plan
and/or any other stock option plan of the Company or any subsidiary or
parent
8
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corporation (within the meaning of Section 424 of the Code) exceeds $100,000,
such Options shall be treated as Options which are not Incentive Stock Options.
To the extent permitted under Section 422 of the Code, or the
applicable regulations thereunder or any applicable Internal Revenue Service
pronouncement, if (i) a Participant's employment with the Company or Designated
Subsidiary is terminated by reason of death, Disability, Retirement or
termination without Cause, and (ii) the portion of any Incentive Stock Option
that would be exercisable during the post-termination period specified under
Article VII but for the $100,000 limitation currently contained in Section
422(d) of the Code, is greater than the portion of such Stock Option that is
immediately exercisable as an `incentive stock option' during such
post-termination period under Section 422, such excess shall be treated as a
Non-Qualified Stock Option. If the exercise of an Incentive Stock Option is
accelerated for any reason, any portion of such Option that is not exercisable
as an Incentive Stock Option by reason of the $100,000 limitation contained in
Section 422(d) of the Code shall be treated as a Non-Qualified Stock Option.
Should any of the foregoing provisions not be necessary in order for
the Stock Options to qualify as Incentive Stock Options, or should any
additional provisions be required, the Committee may amend the Plan accordingly,
without the necessity of obtaining the approval of the shareholders of the
Company, except as otherwise required by law.
G. Other Terms and Conditions. Options may contain such other
provisions, which shall not be inconsistent with any of the foregoing terms of
the Plan, as the Committee shall deem appropriate including, without limitation,
provisions permitting the use of shares of Common Stock to exercise and settle a
Stock Option ("Stock Swaps") or permitting "reloads" such that in the case of
Stock Swaps, the same number of Non-Qualified Stock Options are granted as the
number of shares of Common Stock swapped ("Reloads"). With respect to Stock
Swaps, shares of Common Stock shall be valued at Fair Market Value on the date
of exercise and shall have the same remaining time period as the shares of
Common Stock that were swapped. With respect to Reloads, the exercise price of
the new Non-Qualified Stock Option shall be the Fair Market Value on the date
granted and the term of the NonQualified Stock Option shall be the same as the
remaining term of the Options that are exercised.
VII. Effect of Termination of Employment
A. Death, Disability, Retirement, etc. Except as otherwise provided
in the Participant's Option Agreement, upon Termination of Employment, all
outstanding Options then exercisable and not exercised by the Participant prior
to such Termination of Employment (and any Options not previously exercisable
but made exercisable by the Committee at or after the Termination of Employment)
shall remain exercisable by the Participant to the extent not exercised for the
following time periods, or, if earlier, the prior expiration of the Option in
accordance with the terms of the Plan and grant:
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1. In the event of the Participant's death, Retirement or
Disability, such Options shall remain exercisable by the Participant
(or by the Participant's estate or by the person given authority to
exercise such Options by the Participant's will or by operation of law)
for a period of one year from the date of the Participant's death,
Retirement or Disability, provided that the Committee, in its sole
discretion, may at any time extend such time period.
2. In the event the Participant's employment is terminated
by the Company or a Designated Subsidiary without Cause, such Options
shall remain exercisable for 90 days from the date of the Participant's
Termination of Employment, provided that the Committee, in its sole
discretion, may at any time extend such time period.
B. Cause. Upon the Termination of Employment of a Participant for
Cause, or if the Company or a Designated Subsidiary obtains or discovers
information after Termination of Employment that such Participant had engaged in
conduct that would have justified a Termination of Employment for Cause during
employment, all outstanding Options of such Participant shall immediately
terminate and shall be null and void.
C. Cancellation of Options. Except as otherwise provided in Article
VI(E), no Options that were not exercisable during the period of employment
shall thereafter become exercisable upon a Termination of Employment for any
reason or no reason whatsoever, and such options shall terminate and become null
and void upon a Termination of Employment, unless the Committee determines in
its sole discretion that such Options shall be exercisable.
VIII. Nontransferability of Options
No Option shall be transferable by the Participant otherwise than by
will or under applicable laws of descent and distribution, and during the
lifetime of the Participant may be exercised only by the Participant or his or
her guardian or legal representative. In addition, except as provided above, no
Option shall be assigned, negotiated, pledged or hypothecated in any way
(whether by operation of law or otherwise), and no Option shall be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
negotiate, pledge or hypothecate any Option, or in the event of any levy upon
any Option by reason of any execution, attachment or similar process contrary to
the provisions hereof, such Option shall immediately terminate and become null
and void.
IX. Rights as a Stockholder
A Participant (or a permitted transferee of an Option) shall have no
rights as a stockholder with respect to any Shares covered by such Participant's
Option until such Participant (or permitted transferee) shall have become the
holder of record of such Shares, and no adjustments shall be made for dividends
in cash or other property or distributions or other rights in respect to any
such Shares, except as otherwise specifically provided in this Plan.
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X. Termination, Amendment and Modification
A. General Amendments and Termination. The Plan shall terminate at
the close of business on the tenth anniversary of the Effective Date (the
"Termination Date"), unless terminated sooner as hereinafter provided, and no
Option shall be granted under the Plan on or after that date. The termination of
the Plan shall not terminate any outstanding Options that by their terms
continue beyond the Termination Date. At any time prior to the Termination Date,
the Committee may amend or terminate the Plan or suspend the Plan in whole or in
part.
The Committee may at any time, and from time to time, amend, in
whole or in part, any or all of the provisions of the Plan (including any
amendment deemed necessary to ensure that the Company may comply with any
regulatory requirements referred to in Article XII), or suspend or terminate it
entirely, retroactively or otherwise; provided, however, that, unless otherwise
required by law or specifically provided herein, the rights of a Participant
with respect to Options granted prior to such amendment, suspension or
termination, may not, be materially impaired without the consent of such
Participant and, provided further, without the approval of the stockholders of
the Company entitled to vote, no amendment may be made which would (i) increase
the aggregate number of shares of Common Stock that may be issued under this
Plan (except by operation of Article V); (ii) decrease the minimum Purchase
Price of any Option; (iii) increase the individual limitation set forth in
Article VI A of the Plan; or (iv) extend the maximum option period.
The Committee may amend the terms of any Option granted,
prospectively or retroactively, but, subject to Article VI above or as otherwise
provided herein, no such amendment or other action by the Committee shall
materially impair the rights of any Participant without the Participant's
consent. No modification of an Option shall adversely affect the status of an
Incentive Stock Option as an incentive stock option under Section 422 of the
Code. Notwithstanding the foregoing, however, no such amendment may, without the
approval of the stockholders of the Company, effect any change that would
require stockholder approval under applicable law.
XI. Use of Proceeds
The proceeds of the sale of Shares subject to Options under the Plan
are to be added to the general funds of Company and used for its general
corporate purposes as the Board shall determine.
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XII. General Provisions
A. Right to Terminate Employment. Neither the adoption of the Plan
nor the grant of Options shall impose any obligation on the Company or
Designated Subsidiaries to continue the employment of any Participant or the
consulting arrangement with any Eligible Consultant, nor shall it impose any
obligation on the part of any Participant to remain in the employ of the Company
or Designated Subsidiaries or to remain as a consultant of the Company or its
Designated Subsidiaries.
B. Purchase for Investment. If the Board or the Committee determines
that the law so requires, the holder of an Option granted hereunder shall, upon
any exercise or conversion thereof, execute and deliver to the Company a written
statement, in form satisfactory to the Company, representing and warranting that
such Participant is purchasing or accepting the Shares then acquired for such
Participant's own account and not with a view to the resale or distribution
thereof, that any subsequent offer for sale or sale of any such Shares shall be
made either pursuant to (i) a Registration Statement on an appropriate form
under the Securities Act, which Registration Statement shall have become
effective and shall be current with respect to the Shares being offered and
sold, or (ii) a specific exemption from the registration requirements of the
Securities Act, and that in claiming such exemption the holder will, prior to
any offer for sale or sale of such Shares, obtain a favorable written opinion,
satisfactory in form and substance to the Company, from counsel acceptable to
the Company as to the availability of such exception.
C. Trusts, etc. Nothing contained in the Plan and no action taken
pursuant to the Plan (including, without limitation, the grant of any Option
thereunder) shall create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Company and any Participant or the executor,
administrator or other personal representative or designated beneficiary of such
Participant, or any other persons. Any reserves that may be established by the
Company in connection with the Plan shall continue to be part of the general
funds of the Company, and no individual or entity other than the Company shall
have any interest in such funds until paid to a Participant. If and to the
extent that any Participant or such Participant's executor, administrator or
other personal representative, as the case may be, acquires a right to receive
any payment from the Company pursuant to the Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company.
D. Notices Any notice to the Company required by or in respect of
this Plan will be addressed to the Company, Microwave Power Devices, Inc., 49
Wireless Boulevard, Hauppauge, New York 11788-3935, Attention: Chief Financial
Officer, or such other place of business as shall become the Company's principal
executive offices from time to time. Each Participant shall be responsible for
furnishing the Committee with the current and proper address for the mailing to
such Participant of notices and the delivery to such Participant of agreements,
Shares and payments. Any such notice to the Participant will, if the
Company has received notice that the Participant is then deceased, be
given the Participant's personal representative if such representative has
previously informed the Company of his status and address (and has provided such
reasonable substantiating information as the Company may request) by written
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notice under this Section. Any notice required by or in respect of this Plan
will be deemed to have been duly given when delivered in person or when
dispatched by telegram or one business day after having been dispatched by a
nationally recognized overnight courier service or three business days after
having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid. The Company assumes no responsibility or obligation
to deliver any item mailed to such address that is returned as undeliverable to
the addressee and any further mailings will be suspended until the Participant
furnishes the proper address.
E. Severability of Provisions. If any provisions of the Plan shall
be held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions of the Plan, and the Plan shall be construed and
enforced as if such provisions had not been included.
F. Payment to Minors, Etc. Any benefit payable to or for the benefit
of a minor, an incompetent person or other person incapable of receipt thereof
shall be deemed paid when paid to such person's guardian or to the party
providing or reasonably appearing to provide for the care of such person, and
such payment shall fully discharge the Committee, the Company and their
employees, agents and representatives with respect thereto.
G. Headings and Captions. The headings and captions herein are
provided for reference and convenience only. They shall not be considered part
of the Plan and shall not be employed in the construction of the Plan.
H. Controlling Law. The Plan shall be construed and enforced
according to the laws of the State of Delaware.
I. Other Benefits. No payment under this Plan shall be considered
compensation for purposes of computing benefits under any retirement plan of the
Company or a Designated Subsidiary nor affect any benefits under any other
benefit plan now or subsequently in effect under which the availability of
benefits is related to the level of compensation.
J. Costs. The Company shall bear all expenses included in
administering this Plan, including expenses of issuing Common Stock pursuant to
any Options hereunder.
K. Section 162(m) Deduction Limitation. The Committee at any time
may in its sole discretion limit the number of Options that can be exercised in
any taxable year of the Company, to the extent necessary to prevent the
application of Section 162(m) of the Code (or any similar or successor
provision), provided that the Committee may not postpone the earliest date on
which Options can be exercised beyond the last day of the stated term of such
Options.
L. Section 16(b) of the Exchange Act. All elections and transactions
under the Plan by persons subject to Section 16 of the Exchange Act involving
shares of Common Stock are intended to comply with all exemptive conditions
under Rule 16b-3. The Committee may establish and adopt written administrative
guidelines, designed to facilitate compliance with
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Section 16(b) of the Exchange Act, as it may deem necessary or proper for the
administration and operation of the Plan and the transaction of business
thereunder.
XIII. Issuance of Stock Certificates;
Legends; Payment of Expenses
A. Stock Certificates. Upon any exercise of an Option and payment of
the exercise price as provided in such Option, a certificate or certificates for
the Shares as to which such Option has been exercised shall be issued by the
Company in the name of the person or persons exercising such Option and shall be
delivered to or upon the order of such person or persons.
B. Legends. Certificates for Shares issued upon exercise of an
Option shall bear such legend or legends as the Committee, in its sole
discretion, determines to be necessary or appropriate to prevent a violation of,
or to perfect an exemption from, the registration requirements of the Securities
Act or to implement the provisions of any agreements between Company and the
Participant with respect to such Shares.
C. Payment of Expenses. The Company shall pay all issue or transfer
taxes with respect to the issuance or transfer of Shares, as well as all fees
and expenses necessarily incurred by the Company in connection with such
issuance or transfer and with the administration of the Plan.
XIV. Listing of Shares and Related Matters
If at any time the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the grant of Options or the award or sale of Shares under the Plan,
no Option grant shall be
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effective and no Shares will be delivered, as the case may be, unless and
until such listing, registration, qualification, consent or approval shall have
been effected or obtained, or otherwise provided for, free of any conditions not
acceptable to the Board.
XV. Withholding Taxes
The Company shall have the right to require prior to the issuance or
delivery of any shares of Common Stock payment by the Participant of any
Federal, state or local taxes required by law to be withheld.
The Committee may permit any such withholding obligation to be
satisfied by reducing the number of shares of Common Stock otherwise
deliverable. A person required to file reports under Section 16(a) of the
Exchange Act with respect to securities of the Company may elect to have a
sufficient number of shares of Common Stock withheld to fulfill such tax
obligations (hereinafter a "Withholding Election") only if the election complies
with such conditions as are necessary to prevent the withholding of such shares
from being subject to Section 16(b) of the Exchange Act. To the extent necessary
under then current law, such conditions shall include the following: (x) the
Withholding Election shall be subject to the approval of the Committee and (y)
the Withholding Election is made (i) during the period beginning on the third
business day following the date of release for publication of the quarterly or
annual summary statements of sales and earnings of the Company and ending on the
twelfth business day following such date or is made in advance but takes effect
during such period, (ii) six (6) months before the stock award becomes taxable,
or (iii) during any other period in which a Withholding Election may be made
under the provisions of Rule 16b-3 promulgated pursuant to the Exchange Act. Any
fraction of a share of Common Stock required to satisfy such tax obligations
shall be disregarded and the amount due shall be paid instead in cash by the
Participant.
15
EXHIBIT 5.1
1585 Broadway
PROSKAUER ROSE LLP New York, New York 10036-6299
Telephone 212.969.3000
Fax 212.969.2900
July 30, 1998
Microwave Power Devices, Inc.
49 Wireless Boulevard
Hauppauge, New York 11788
Ladies and Gentlemen:
We have acted as counsel to Microwave Power Devices, Inc. (the
"Company") in connection with the Registration Statement on Form S-8 (together
with the exhibits thereto, the "Registration Statement") filed by the Company
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, relating to the registration of 500,000 shares (the
"Shares") of common stock, par value $.01 per share, of the Company. The Shares
are to be issued by the Company upon exercise of certain stock options (the
"Options") granted and to be granted to certain employees of the Company and its
subsidiaries pursuant to the Company's 1996 Stock Option Plan (the "Plan").
As such counsel, we have reviewed the corporate proceedings in
connection with the adoption of the Plan. We have also examined and relied upon
originals or copies, certified or otherwise authenticated to our satisfaction,
of all such corporate records, documents, agreements and instruments relating to
the Company, and certificates of public officials and of representatives of the
Company, and have made such investigations of law, and have discussed with
representatives of the Company and such other persons such questions of fact, as
we have deemed proper or necessary as a basis for rendering this opinion.
Based upon and subject to the foregoing, we are of the opinion that
the Shares will be, when issued upon due exercise of options granted under the
Plan in accordance with the provisions of the Plan and in accordance with stock
option agreements entered into in accordance with the provisions of the Plan
(including payment of the option exercise price provided for therein), legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ PROSKAUER ROSE LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 2, 1998 included in the Form 10-K of Microwave Power Devices, Inc. for the
year ended December 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Melville, New York
July 29, 1998
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