As filed with the Securities and Exchange Commission on July 14, 2000
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
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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, 11788-3935
(Address of principal executive offices) (Zip code)
MICROWAVE POWER DEVICES, INC. 1999 STOCK OPTION PLAN
(Full title of the plan)
ALFRED WEBER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MICROWAVE POWER DEVICES, INC.
49 WIRELESS BOULEVARD
HAUPPAUGE, NY 11788-3935
(631) 231-1400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES OF ALL COMMUNICATIONS TO:
STEPHEN W. RUBIN, ESQ.
PROSKAUER ROSE LLP
1585 BROADWAY
NEW YORK, NEW YORK 10036
(212) 969-3000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed
maximum Proposed maximum
Title of securities to be Amount to be offering price aggregate offering Amount of
registered registered (1) per share(2) price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par 500,000 $6.28125 $3,140,625 $829.13
value $.01 per share
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</TABLE>
(1) The maximum number of shares as to which awards may be granted under
the Microwave Power Devices, Inc. 1999 Stock Option Plan (the "Plan").
Pursuant to Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act"), 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 and is the product of multiplying the 500,000 shares as
to which options may be granted under the Plan by $6.28125, which is
the average of the high and low price of the Registrant's Common Stock
reported on the Nasdaq National Market on July 12, 2000. The price
stated is estimated solely for the purpose of calculating the
Registration Fee.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The Section 10(a) prospectus for the Microwave Power Devices, Inc. 1999 Stock
Option Plan is not being filed with the Securities and Exchange Commission (the
"Commission") as a part of this Registration Statement.
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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
Microwave Power Devices, Inc. 1999 Stock Option Plan (the "Plan").
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Company are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
(2) Definitive Proxy Statement, dated April 6, 2000, filed in
connection with the Company's 2000 Annual Meeting of Stockholders;
(3) Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2000;
(4) Description of the Company's Common Stock, par value $.01 per
share, contained in the Company's Registration Statement filed on Form 8-A
(No. 0-8574), pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after
the date of this Registration Statements and prior to the filing of a
post-effective amendment which indicates that all remaining securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated herein by reference in
this Registration Statement and to be part hereof from the date of filing
such documents. Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 145 of the Delaware General Corporation Law (the "DGCL") provides
for the indemnification of directors, officers, employees and other individuals
against expenses (including attorney's fees), judgments, fines and other amounts
incurred in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than derivative
actions), if they acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interest of Microwave Power Devices, Inc., or for
a criminal matter, if they had no reasonable cause to believe that the conduct
was unlawful. However, in the case of a derivative action, indemnification
extends only to expenses (including attorneys' fees) incurred in connection with
defense or settlement of such action and then only if and to the extent that the
appropriate court determines that such person is fairly and reasonably entitled
to such indemnification. Section 145(f) of the DGCL permits advancement of
expenses to a director or officer in such actions. In addition, Section 102(b)
of the DGCL permits a corporation to include in its certificate of incorporation
a provision eliminating or limiting the personal liability of a director for
monetary damages for breach of his fiduciary duty of care, but not for breaches
of loyalty to the corporation and its
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stockholders, acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, or transactions from which a director
derives improper benefit.
Article TENTH of the Company's Amended and Restated Certificate of Incorporation
and Section 7 of the Company's By-laws provides for indemnification of the
Company's officers and directors to the fullest extent provided by the DGCL and
other applicable laws as currently in effect and as they may be amended in the
future. The Company maintains directors' and officers' liability insurance
insuring, with certain exceptions and conditions, the Company's directors and
officers in their capacity as such against liability with respect to certain
specified proceedings.
The Company has the power to purchase and maintain insurance on behalf of any
person who is or was a director, officer employee or agent of the Company, or is
or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, employee benefit plan
trust or other enterprise, against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Company would have the power to
indemnify such person against such liability under Section 7 of the Company's
By-Laws, Article Tenth of the Company's Amended and Restated Certificate of
Incorporation or otherwise.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
informed that in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
In the event that a claim for indemnification against such liabilities (other
than payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction with question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DOCUMENT
4.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 33-94142))
4.2 By-Laws of the Company (incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-1 (Registration No.
33-94142))
4.3 Microwave Power Devices, Inc. 1999 Stock Option Plan (incorporated
by reference to Exhibit 10.15 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1999).
*5.1 Opinion of Proskauer Rose LLP
*23.1 Consent of Arthur Andersen LLP
*23.3 Consent of Proskauer Rose LLP (included in Exhibit 5.1)
*24 Power of Attorney (included on Signature Page)
*Filed herewith.
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ITEM 9. UNDERTAKINGS.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) 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 aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iv) 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
Registration Statement is on Form S-3, Form S-8, or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the 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 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.
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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 12, 2000.
/s/ Alfred Weber
Alfred Weber
Chairman, President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears below
constitutes and appoints Alfred Weber and Thomas Gilboy, 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 1999 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/Alfred Weber Chief Executive Officer; Director July 12, 2000
Alfred Weber (Principal Executive Officer)
/s/Thomas Gilboy Chief Financial Officer July 12, 2000
Thomas Gilboy (Principal Financial Officer and
Principal Accounting Officer)
/s/ Merril M. Halpern Director July 12, 2000
Merril M. Halpern
/s/ A. Lawrence Fagan Director July 12, 2000
A. Lawrence Fagan
/s/ David J. Aldrich Director July 12, 2000
David J. Aldrich
/s/ Warren A. Law Director July 12, 2000
Warren A. Law
/s/ James S. Silver Director July 12, 2000
James S. Silver
/s/ James L. Morice Director July 12, 2000
James L. Morice
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EXHIBIT 5.1
OPINION OF PROSKAUER ROSE LLP
Microwave Power Devices, Inc.
49 Wireless Boulevard
Hauppauge, New York 11788
Ladies and Gentlemen:
We are acting as counsel to Microwave Power Devices, Inc., a Delaware
corporation (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 options (the
"Options") granted and to be granted to certain employees of the Company and its
subsidiaries pursuant to the Company's 1999 Stock Option Plan (the "Plan").
As such counsel, we have participated in the preparation of the Registration
Statement and 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 the options granted under the Plan, in
accordance with the provisions of the Plan and in accordance with the stock
option agreement 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 5.1 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,
PROSKAUER ROSE LLP
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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 reports dated March 17, 2000
included in the annual report on Form 10-K of Microwave Power Devices, Inc. for
the year ended December 31, 1999 and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Melville, New York
July 14, 2000
