<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1997
REGISTRATION NO. 333-_____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
GIGA-TRONICS INCORPORATED
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-2656341
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
4650 NORRIS CANYON ROAD
SAN RAMON, CALIFORNIA 94583
(Address of Principal Executive Offices) (Zip Code)
----------------
GIGA-TRONICS INCORPORATED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
----------------
GEORGE H. BRUNS, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GIGA-TRONICS INCORPORATED
4650 NORRIS CANYON ROAD, SAN RAMON, CALIFORNIA 94583
(Name and Address of Agent for Service)
(510) 328-4650
(Telephone number, including area code, of agent for service)
----------------
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (1) per Share (2) Offering Price (2) Registration Fee
---------------- -------------- -------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, no 130,000 shares $7.75 $1,007,500.00 $305.30
par value
</TABLE>
================================================================================
(1) This Registration Statement shall also cover any additional shares
of Common Stock which become issuable under the Giga-tronics
Incorporated Employee Stock Purchase Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an
increase in the number of the outstanding shares of Giga-tronics
Incorporated Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of Common Stock of
Giga-tronics Incorporated on August 26, 1997, as reported on the Nasdaq
National Market.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Giga-tronics Incorporated (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended March 29, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 28, 1997; and
(c) The Registrant's Registration Statement No. 0-12719
on Form 8-A filed with the SEC on July 27, 1984, in
which there is described the terms, rights and
provisions applicable to the Registrant's outstanding
Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act") after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Sections 204 and 317 of the California General Corporation Law and the
Registrant's Bylaws contain provisions authorizing the indemnification of
corporate directors and officers against certain liabilities and expenses
incurred in connection with proceedings involving such persons in their
capacities as directors and officers, including proceedings under the Securities
Act of 1933, as amended (the "1933 Act") or the 1934 Act.
Section 29 of the Registrant's Bylaws requires the Registrant to
indemnify all directors and officers to the fullest extent permitted by
California law and also provides for the advancement of expenses to officers
and directors in connection with their defense of civil or criminal proceedings
upon the written undertaking of the director or officer to repay the advance in
the event it is
<PAGE> 3
ultimately determined that such individual is not entitled to indemnification
under the California General Corporation Law.
In addition, the Registrant has entered into supplemental
indemnification agreements with its directors which broaden the scope of
indemnity beyond that expressly provided by the Bylaws and the California
General Corporation Law. These supplemental contracts are permissible under
California General Corporation Law and have been approved by the Registrant's
shareholders. The agreements provide the directors with indemnification to the
fullest possible extent permitted by law against all expenses (including
attorney fees), judgments, fines and settlement amounts incurred or paid by
them in any action or proceeding (including any action by or in the right of
the Registrant) by reason of their service either as a director, officer,
employee or agent of the Registrant or, at the Registrant's request, as a
director, officer, agent or employee of another company, partnership, joint
venture, trust or other enterprise. However, no indemnity will be provided to
any director with respect to conduct which is adjudged to be knowingly
fraudulent, deliberately dishonest or to constitute willful misconduct.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining Rights of Shareholders. Reference is
made to Registrant's Registration Statement No. 0-12719 on
Form 8-A which incorporated herein by reference pursuant to
Item 3(c).
5 Opinion and consent of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Independent Auditors - KPMG Peat Marwick LLP.
23.2 Consent of Gibson, Dunn & Crutcher is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Giga-tronics Incorporated Employee Stock Purchase Plan.
99.2 Giga-tronics Incorporated Stock Purchase Agreement.
99.3 Giga-tronics Incorporated Employee Stock Purchase Plan
Enrollment/Change Form.
Item 9. Undertaking
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 1933 Act, (ii) to reflect in the prospectus any
facts or events arising after the effective date of this 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
this Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously
II-2
<PAGE> 4
disclosed in this Registration Statement or any material change to such
information in this Registration Statement; provided, however, that clauses
(1)(i) and (l)(ii) shall 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
1934 Act that are incorporated by reference into this Registration Statement;
(2) that for the purpose of determining any liability under the 1933 Act, 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, and (3) to remove from registration by means of a posteffective
amendment any of the securities being registered which remain unsold upon the
termination of the Registrant's Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnity provisions incorporated by reference in
Item 6, or otherwise, the Registrant has been informed that in the opinion of
the SEC such indemnification is against public policy as expressed in the 1933
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 1933
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
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 San Ramon, State of
California, on this 22nd day of August, 1997.
GIGA-TRONICS INCORPORATED
By: /s/ George H. Bruns, Jr.
--------------------------------
George H. Bruns, Jr.
Chairman and Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Giga-tronics Incorporated, a
California corporation, do hereby constitute and appoint George H. Bruns, Jr.
and Nyla R. Kientzler, and each of them, the lawful attorneys-in- fact and
agents with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and either one
of them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any
rules or regulations or requirements of the Securities and Exchange Commission
in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to any and
all amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or either of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
II-4
<PAGE> 6
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.
Signature Title Date
- --------- ----- ----
/s/ George H. Bruns, Jr. Chairman and Chief Executive August 22, 1997
- ------------------------ Officer and Director, Acting Vice-
George H. Bruns, Jr. President, Finance and Chief
Financial Officer (Principal
Executive Officer and Principal
Financial Officer)
/s/Nyla R. Kientzler Controller (Principal Accounting August 22, 1997
- --------------------- Officer)
Nyla R. Kientzler
/s/James A. Cole Director August 22, 1997
- ---------------------
James A. Cole
/s/Edward D. Sherman Director August 22, 1997
- ---------------------
Edward D. Sherman
/s/ Robert C. Wilson Director August 22, 1997
- ---------------------
Robert C. Wilson
II-5
<PAGE> 7
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
GIGA-TRONICS INCORPORATED
<PAGE> 8
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining Rights of Shareholders. Reference is
made to Registrant's Registration Statement No. 0-12719 on
Form 8-A which is incorporated herein by reference
pursuant to Item 3(c).
5 Opinion and consent of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Independent Auditors - KPMG Peat Marwick LLP.
23.2 Consent of Gibson, Dunn & Crutcher LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99. 1 Giga-tronics Incorporated Employee Stock Purchase Plan.
99.2 Giga-tronics Incorporated Stock Purchase Agreement.
99.3 Giga-tronics Incorporated Employee Stock Purchase Plan
Enrollment/Change Form.
<PAGE> 1
EXHIBIT 4
Instruments Defining Rights of Shareholders. Reference is made to Registrant's
Registration Statement No. 0-12719 on Form 8-A which is incorporated
herein by reference pursuant to Item 3(c).
<PAGE> 1
EXHIBIT 5
[Letterhead of Gibson, Dunn & Crutcher LLP]
August 29,1997 C66153-00020
Giga-tronics Incorporated
4650 Norris Canyon Road
San Ramon, CA 94583
Re: Registration Statement on Form S-8 of
Giga-tronics Incorporated
-------------------------
Ladies and Gentlemen:
We refer to the registration statement on Form S-8 ("Registration
Statement"), under the Securities Act of 1933, as amended (the "Securities
Act") filed by Giga-tronics Incorporated, a California corporation (the
"Company"), with respect to the proposed offering by the Company of up to
130,000 shares (the "Shares") of the common stock of the Company, no par value
per share (the "Common Stock") under the Giga- tronics Incorporated Employee
Stock Purchase Plan (the "Plan").
We have examined the originals or certified copies of such corporate
records, certificates of officers of the Company and/or public officials and
such other documents and have made such other factual and legal investigations
as we have deemed relevant and necessary as the basis for the opinions set
forth below. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as conformed
or photostatic copies and the authenticity of the originals of such copies.
Based on our examination mentioned above, subject to the assumptions
stated above and relying on the statements of fact contained in the documents
that we have examined, we are of the opinion that (i) the issuance by the
Company of the Shares has been duly authorized for issuance and (ii) when
issued in accordance with the terms of the Plan, the Shares will be duly and
validly issued, fully paid and non- assessable shares of Common Stock.
This opinion is limited to California and United States federal law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the General Rules and Regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
--------------------------------
GIBSON, DUNN & CRUTCHER LLP
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors - KPMG Peat Marwick LLP
<PAGE> 2
Consent of Independent Auditors
The Board of Directors
Giga-tronics Incorporated:
We consent to the incorporation by reference herein of our report dated April
18, 1997, except as to Note 11, which is as of June 6, 1997, relating to the
consolidated balance sheets of Giga-tronics Incorporated and subsidiary as of
March 29, 1997, and March 30, 1996, and the related consolidated statements of
operations, shareholders' equity, and cash flows for the year ended March 29,
1997, March 30, 1996, and March 25, 1995, and the related schedule, which
reports appear or are incorporated by reference in the March 29, 1997, annual
report on Form 10-K of Giga-tronics Incorporated.
/s/ KPMG Peat Marwick LLP
--------------------------
KPMG Peat Marwick LLP
San Jose, California
August 27, 1997
<PAGE> 1
EXHIBIT 23.2
Consent of Gibson, Dunn & Crutcher LLP is contained in Exhibit 5
<PAGE> 1
EXHIBIT 24
Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
<PAGE> 1
EXHIBIT 99.1
Giga-tronics Incorporated Employee Stock Purchase Plan
<PAGE> 2
GIGA-TRONICS INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of Giga-tronics Incorporated by providing eligible employees with the
opportunity to acquire a proprietary interest in the Corporation through
participation in a payroll-deduction based employee stock purchase plan
designed to qualify under Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to
such terms in the attached Appendix.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret
and construe any provision of the Plan and to adopt such rules and regulations
for administering the Plan as it may deem necessary in order to comply with the
requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares of Common
Stock purchased on the open market. The maximum number of shares of Common
Stock which may be issued over the term of the Plan shall not exceed one
hundred and thirty thousand (130,000) shares.
B. Should any change be made to the Common Stock by reason
of any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common Stock as a
class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number and class of securities
issuable under the Plan, (ii) the maximum number and class of securities
purchasable per Participant on any one Purchase Date and (iii) the number and
class of securities and the price per share in effect under each outstanding
purchase right in order to prevent the dilution or enlargement of benefits
thereunder.
IV. OFFERING PERIODS
<PAGE> 3
A. Shares of Common Stock shall be offered for purchase
under the Plan through a series of successive offering periods until such time
as (i) the maximum number of shares of Common Stock available for issuance under
the Plan shall have been purchased or (ii) the Plan shall have been sooner
terminated.
B. Each offering period shall be of such duration (not to
exceed twelve (12) months) as determined by the Plan Administrator prior to the
start date. The initial offering period shall commence on the Effective Time and
terminate on the last business day in August 1997. The next offering period
shall commence on the first business day in September 1997 and subsequent
offering periods shall commence as designated by the Plan Administrator.
C. Except for the initial offering period, which shall
consist of a single Purchase Interval, each offering period shall be comprised
of a series of one or more successive Purchase Intervals. Purchase Intervals
shall begin on the first business day in September and March each year and
terminate on the last business day in the following February and August,
respectively, each year.
V. ELIGIBILITY
A. Each Eligible Employee shall be eligible to enter an
offering period under the Plan on the start date of any Purchase Interval
within that offering period, provided he or she remains an Eligible Employee on
that date. The date an individual enters an offering period shall be designated
his or her Entry Date for purposes of that offering period.
B. To participate in the Plan for a particular offering
period, the Eligible Employee must complete the enrollment forms prescribed by
the Plan Administrator (including a stock purchase agreement and a payroll
deduction authorization form) and file such forms with the Plan Administrator
(or its designate) one week (or such other period as the Plan Administrator may
specify) before his or her scheduled Entry Date.
VI. PAYROLL DEDUCTIONS
A. The payroll deduction authorized by the Participant for
purposes of acquiring shares of Common Stock during any offering period may be
any multiple of one percent (1%) of the Base Salary paid to the Participant
during each Purchase Interval within that offering period, up to a maximum of
ten percent (10%). The deduction rate so authorized shall continue in effect
throughout the offering period, except to the extent such rate is changed in
accordance with the following guidelines:
(i) The Participant may, at any time during the
offering period, reduce his or her rate of payroll deduction to
<PAGE> 4
become effective as soon as possible after filing the appropriate form
with the Plan Administrator. The Participant may not, however, effect
more than one (1) such reduction per Purchase Interval.
(ii) The Participant may, prior to the commencement
of any new Purchase Interval within the offering period, increase the
rate of his or her payroll deduction by filing the appropriate form with
the Plan Administrator. The new rate (which may not exceed the ten
percent (10%) maximum) shall become effective as of the start date of
the first Purchase Interval following the filing of such form.
B. Payroll deductions shall begin on the first pay day
following the Participant's Entry Date into the offering period and shall
(unless sooner terminated by the Participant) continue through the pay day
ending with or immediately prior to the last day of that offering period. The
amounts so collected shall be credited to the Participant's book account under
the Plan, but no interest shall be paid on the balance from time to time
outstanding in such account. The amounts collected from the Participant shall
not be held in any segregated account or trust fund and may be commingled with
the general assets of the Corporation and used for general corporate purposes.
C. Payroll deductions shall automatically cease upon the
termination of the Participant's purchase right in accordance with the
provisions of the Plan.
D. The Participant's acquisition of Common Stock under the
Plan on any Purchase Date shall neither limit nor require the Participant's
acquisition of Common Stock on any subsequent Purchase Date, whether within the
same or a different offering period.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT A Participant shall be granted
a separate purchase right for each offering period in which he or she
participates. The purchase right shall be granted on the Participant's Entry
Date into the offering period and shall provide the Participant with the right
to purchase shares of Common Stock, in a series of successive installments over
the remainder of such offering period, upon the terms set forth below. The
Participant shall execute a stock purchase agreement embodying such terms and
such other provisions (not inconsistent with the Plan) as the Plan
Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under
the Plan to any Eligible Employee if such individual would, immediately after
the grant, own
<PAGE> 5
(within the meaning of Code Section 424(d)) or hold outstanding options or
other rights to purchase, stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Corporation
or any Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be
automatically exercised in installments on each successive Purchase Date within
the offering period, and shares of Common Stock shall accordingly be purchased
on behalf of each Participant (other than any Participant whose payroll
deductions have previously been refunded in accordance with the Termination of
Purchase Right provisions below) on each such Purchase Date. The purchase shall
be effected by applying the Participant's payroll deductions for the Purchase
Interval ending on such Purchase Date to the purchase of shares of Common Stock
(subject to the limitation on the maximum number of shares purchasable per
Participant on any one Purchase Date) at the purchase price in effect for the
Participant for that Purchase Date.
C. PURCHASE PRICE. The purchase price per share at which Common
Stock will be purchased on the Participant's behalf on each Purchase Date
within the offering period shall be equal to eighty-five percent (85%) of the
lower of (i) the Fair Market Value per share of Common Stock on the
Participant's Entry Date into that offering period and (ii) the Fair Market
Value per share of Common Stock on that Purchase Date; provided that the
purchase price per share for the Purchase Date of the initial offering period
shall be equal to eighty-five percent (85%) of the Fair Market Value per share
of Common Stock on that Purchase Date. However, for each Participant whose
Entry Date is other than the start date of the offering period, the clause (i)
amount shall in no event be less than the Fair Market Value per share of Common
Stock on the start of that offering period.
D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common Stock
purchasable by a Participant on each Purchase Date during the offering period
shall be the number of shares obtained by dividing the amount collected from the
participant through payroll deductions during the Purchase interval ending with
that Purchase Date by the purchase price in effect for the Participant for that
Purchase Date. However, the maximum number of shares of Common Stock
purchasable per Participant on any one Purchase Date shall not exceed one
thousand (1,000) shares, subject to periodic adjustments in the event of
certain changes in the Corporation's capitalization.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied to
the purchase of shares of Common Stock on any Purchase Date because they are
not sufficient to purchase a whole share of Common Stock shall be held for the
purchase of Common Stock on the next Purchase Date within that same offering
period. However, any payroll deductions not applied to the purchase of Common
Stock by reason of the limitation on the maximum number of shares purchasable
by the Participant on the Purchase Date shall be promptly refunded.
<PAGE> 6
F. TERMINATION OF PURCHASE RIGHT. The following provisions
shall govern the termination of outstanding purchase rights:
(i) A Participant may, at any time at least one
week (or such other period as the Plan Administrator may specify) prior
to the next Purchase Date in the offering period, terminate his or her
outstanding purchase right by filing the appropriate form with the Plan
Administrator (or its designate), and no further payroll deductions
shall be collected from the Participant with respect to the terminated
purchase right. Any payroll deductions collected during the Purchase
Interval in which such termination occurs shall, at the Participant's
election, be promptly refunded or held for the purchase of shares on the
next Purchase Date. If no such election is made at the time such
purchase right is terminated, then the payroll deductions collected with
respect to the terminated right shall be refunded as soon as possible.
(ii) The termination of such purchase right
shall be irrevocable, and the Participant may not subsequently rejoin
the offering period for which the terminated purchase right was granted
until the commencement of a new Purchase Interval. In order to resume
participation, such individual must re-enroll in the Plan (by making a
timely filing of the prescribed enrollment forms) one week (or such
other period as the Plan Administrator shall specify) before the first
day of the new Purchase Interval.
(iii) Should the Participant cease to remain an
Eligible Employee for any reason (including death, disability or change
in status) while his or her purchase right remains outstanding, then
that purchase right shall immediately terminate, and all of the
Participant's payroll deductions for the Purchase Interval in which the
purchase right so terminates shall be promptly refunded. However, should
the Participant cease to remain in active service by reason of an
approved unpaid leave of absence, then the Participant shall have the
right, exercisable up until the last business day of the Purchase
Interval in which such leave commences, to (a) withdraw all the payroll
deductions collected during such Purchase Interval or (b) have such
funds held for the purchase of shares on the next scheduled Purchase
Date. In no event, however, shall any further payroll deductions be
collected from the Participant during such leave. Upon the Participant's
return to active service, his or her payroll deductions under the Plan
shall automatically resume at the rate in effect at the time the leave
<PAGE> 7
began.
G. CORPORATE TRANSACTION. Each outstanding purchase right
shall automatically be exercised, immediately prior to the effective date of
any Corporate Transaction, by applying the payroll deductions of each
Participant for the Purchase Interval in which such Corporate Transaction
occurs to the purchase of shares of Common Stock at a purchase price per share
determined as if such date were the next purchase date. However, the applicable
limitation on the number of shares of Common Stock purchasable per Participant
on any one Purchase Date shall continue to apply to any such purchase.
The Corporation shall use reasonable efforts to provide prior
written notice of the occurrence of any Corporate Transaction, and Participants
shall, following the receipt of such notice, have the right to terminate their
outstanding purchase rights prior to the effective date of the Corporate
Transaction.
H. PRORATION OF PURCHASE RIGHTS. Should the total number
of shares of Common Stock which are to be purchased pursuant to outstanding
purchase rights on any particular date exceed the number of shares then
available for issuance under the Plan, the Plan Administrator shall make a
pro-rata allocation of the available shares on a uniform and nondiscriminatory
basis, and the payroll deductions of each Participant, to the extent in excess
of the aggregate purchase price payable for the Common Stock pro-rated to such
individual, shall be refunded.
I. ASSIGNABILITY. The purchase right shall be exercisable
only by the Participant and shall not be assignable or transferable by the
Participant.
J. STOCKHOLDER RIGHTS. A Participant shall have no
stockholder rights with respect to the shares subject to his or her outstanding
purchase right until the shares are purchased on the Participant's behalf in
accordance with the provisions of the Plan and the Participant has become a
holder of record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No Participant shall be entitled to accrue rights to
acquire Common Stock pursuant to any purchase right outstanding under this Plan
if and to the extent such accrual, when aggregated with (i) rights to purchase
Common Stock accrued under any other purchase right granted under this Plan and
(ii) similar rights accrued under other employee stock purchase plans (within
the meaning of Code Section 423) of the Corporation or any Corporate Affiliate,
would otherwise permit such Participant to purchase more than Twenty-Five
Thousand Dollars ($25,000) worth of stock of the Corporation or any Corporate
Affiliate (determined on the basis of the Fair Market Value of such stock on
the date or dates such rights are granted) for each
<PAGE> 8
calendar year such rights are at any time outstanding.
B. For purposes of applying such accrual limitations, the
following provisions shall be in effect:
(i) The right to acquire Common Stock under each
outstanding purchase right shall accrue in a series of installments on
each successive Purchase Date during the offering period for which such
right is granted.
(ii) No right to acquire Common Stock under any
outstanding purchase right shall accrue to the extent the Participant
has already accrued in the same calendar year the right to acquire
Common Stock under one (1) or more other purchase rights at a rate equal
to Twenty-Five Thousand Dollars ($25,000) worth of Common Stock
(determined on the basis of the Fair Market Value per share on the date
or dates of grant) for each calendar year such rights were at any time
outstanding.
C. If by reason of such accrual limitations, any purchase right
of a Participant does not accrue for a particular Purchase Interval, then the
payroll deductions which the Participant made during that Purchase Interval
with respect to such purchase right shall be promptly refunded.
D. In the event there is any conflict between the provisions of
this Article and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article shall be controlling.
IX. EFFECTIVE TIME AND TERM OF THE PLAN
A. The Plan was adopted by the Board on December 11, 1996 and
shall become effective at the Effective Time, provided no purchase rights
granted under the Plan shall be exercised, and no shares of Common Stocks shall
be issued hereunder, until (i) the Plan shall have been approved by the
stockholders of the Corporation and (ii) the Corporation shall have complied
with all applicable requirements of the 1933 Act (including the registration of
the shares of Common Stock issuable under the Plan on a Form S-8 registration
statement filed with the Securities and Exchange Commission), all applicable
listing requirements of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock is listed for trading and all other
applicable requirements established by law or regulation. In the event such
stockholder approval is not obtained, or such compliance is not effected,
within twelve (12) months after the date on which the Plan is adopted by the
Board, the Plan shall terminate and have no further force or effect and all
sums collected from Participants during the initial offering period hereunder
shall be
<PAGE> 9
refunded.
B. Unless sooner terminated by the Board, the Plan shall
terminate upon the earliest to occur of (i) the last business day in September,
2006, (ii) the date on which all shares available for issuance under the Plan
shall have been sold pursuant to purchase rights exercised under the Plan or
(iii) the date on which all purchase rights are exercised in connection with
a Corporate Transaction. No further purchase rights shall be granted or
exercised, and no further payroll deductions shall be collected, under the Plan
following such termination.
X. AMENDMENT OF THE PLAN
The Board may alter, amend, suspend or discontinue the Plan at
any time to become effective immediately following the close of any Purchase
Interval. However, certain amendments may require stockholder approval pursuant
to applicable laws or regulations.
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration of the
Plan shall be paid by the Corporation.
B. Nothing in the Plan shall confer upon the Participant any
right to continue in the employ of the Corporation or any Corporate Affiliate
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Corporation (or any Corporate Affiliate employing such
person) or of the Participant, which rights are hereby expressly reserved by
each, to terminate such person's employment at any time for any reason, with or
without cause.
<PAGE> 10
SCHEDULE A
CORPORATIONS PARTICIPATING IN
EMPLOYEE STOCK PURCHASE PLAN
AS OF THE EFFECTIVE TIME
Giga-Tronics Incorporated
ASCOR, Inc.
Viking Semiconductor Equipment, Inc.
<PAGE> 11
APPENDIX
The following definitions shall be in effect under the Plan:
A. BASE SALARY shall mean the regular base salary paid to a
Participant by one or more Participating Companies during such individual's
period of participation in the Plan, plus any pre-tax contributions made by the
Participant to any Code Section 401(k) salary deferral plan or any Code Section
125 cafeteria benefit program now or hereafter established by the Corporation
or any Corporate Affiliate. The following items of compensation shall NOT be
included in Base Salary: (i) all overtime payments, bonuses, commissions (other
than those functioning as base salary equivalents), profit-sharing
distributions and other incentive-type payments and (ii) any and all
contributions (other than Code Section 401(k) or Code Section 125 contributions)
made on the Participant's behalf by the Corporation or any Corporate Affiliate
under any employee benefit or welfare plan now or hereafter established.
B. BOARD shall mean the Corporation's Board of Directors.
C. CODE shall mean the Internal Revenue Code of 1986, as amended.
D. COMMON STOCK shall mean the Corporation's common stock.
E. CORPORATE AFFILIATE shall mean any parent or subsidiary
corporation of the Corporation (as determined in accordance with Code Section
424), whether now existing or subsequently established.
F. CORPORATE TRANSACTION shall mean either of the following
stockholder-approved transactions in which the Corporation is a party:
(i) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately
prior to such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete
liquidation or dissolution of the Corporation.
G. CORPORATION shall mean Giga-tronics Incorporated and any
corporate successor to all or substantially all of the assets or voting stock
of Giga-tronics Incorporated, which shall by appropriate action adopt the Plan.
A-.
<PAGE> 12
H. ELIGIBLE EMPLOYEE shall mean an employee of a Participating
Company, other than an employee (i) who has been employed by a Participating
Corporation less than three (3) months, (ii) whose customary employment with a
Participating Company is twenty (20) hours of service or less per week or (iii)
whose customary employment with a Participating Company is for not more than
five (5) months per calendar year.
I. EFFECTIVE TIME shall mean January 15, 1997.
J. ENTRY DATE shall mean the date an Eligible Employee first commences
participation in an offering period in effect under the Plan. The earliest
Entry Date under the Plan shall be the Effective Time.
K. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question, as such price
is reported by the National Association of Securities Dealers on the
Nasdaq National Market or any successor system. If there is no closing
selling price for the Common Stock on the date in question, then the
Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Common is at the time listed on any Stock Exchange,
then the Fair Market Value shall be the closing selling price per share of
Common Stock on the date in question on the Stock Exchange determined by the
Plan Administrator to be the primary market for the Common Stock, as such price
is officially quoted in the composite tape of transactions on such exchange. If
there is no closing selling price for the Common Stock on the date in
question, then the Fair Market Value shall be the closing selling price on the
last preceding date for which such quotation exists.
L. 1933 ACT shall mean the Securities Act of 1933, as amended.
M. PARTICIPANT shall mean any Eligible Employee of a Participating
Corporation who is actively participating in the Plan.
N. PARTICIPATING CORPORATION shall mean the Corporation and such
Corporate Affiliate or Affiliates as may be authorized from time to time by the
Board to
A-.
<PAGE> 13
extend the benefits of the Plan to their Eligible Employees. The Participating
Corporations in the Plan as of the Effective Time are listed in attached
Schedule A.
O. PLAN shall mean the Corporation's Employee Stock
Purchase Plan, as set forth in this document.
P. PLAN ADMINISTRATOR shall mean the committee of two (2)
or more Board members appointed by the Board to administer the Plan.
Q. PURCHASE DATE shall mean the last business day of each
Purchase Interval. The initial Purchase Date shall be the last business day in
August 1997.
R. PURCHASE INTERVAL shall mean each successive period
within the offering period at the end of which there shall be purchased shares
of Common Stock on behalf of each Participant.
S. STOCK EXCHANGE shall mean either the American Stock
Exchange or the New York Stock Exchange.
A-.
<PAGE> 1
EXHIBIT 99.2
Giga-tronics Incorporated Stock Purchase Agreement
<PAGE> 2
GIGA-TRONICS INCORPORATED
STOCK PURCHASE AGREEMENT
I hereby elect to participate in the Employee Stock Purchase Plan (the
"ESPP") effective with the Entry Date specified below, and I hereby subscribe
to purchase shares of Common Stock of Giga-tronics Incorporated, (the
"Corporation") pursuant to the terms of this Agreement and the ESPP. I hereby
authorize payroll deductions from each of my paychecks on and after my entry
into the ESPP in the 1% multiple of my base salary (not to exceed 10%)
specified in my attached Enrollment Form.
Except for the initial offering period, which shall consist of a single
purchase interval, each offering period is divided into a series of successive
purchase intervals. The initial purchase interval is to begin on January 15,
1997 and end on the last business day in August 1997. Subsequent purchase
intervals will each be of six (6) months duration and will run from the first
business day of September to the last business day of February each year and
from the first business day of March each year until the last business day of
August in the following year. My participation will automatically remain in
effect from one offering period to the next in accordance with this Agreement
and my payroll deduction authorization, unless I withdraw from the ESPP or
change the rate of my payroll deduction or unless my employment status changes.
I may reduce the rate of my payroll deductions on one occasion per purchase
interval, and I may increase my rate of payroll deduction to become effective
at the beginning of any subsequent purchase interval within the offering
period.
My payroll deductions will be accumulated for the purchase of shares of
the Corporation's Common Stock on the last business day of each purchase
interval within the offering period. The purchase price per share for the
initial offering\purchase interval shall be equal to 85% of the fair market
value per share on the purchase date. The purchase price per share for
subsequent purchase intervals during subsequent offering periods shall be equal
to 85% of the lower of (i) the fair market value per share of Common Stock on
my entry date into the offering period or (ii) the fair market value per share
on the semi-annual purchase date. I will also be subject to ESPP restrictions
(i) limiting the maximum number of shares which I may purchase on any one
purchase date to 1000 shares and (ii) prohibiting me from purchasing more than
$25,000 worth of Common Stock for each calendar year my purchase right remains
outstanding.
I may withdraw from the ESPP at any time at least 6 business days
before the last business day of a purchase interval and elect either to have
the Corporation refund all my payroll deductions for that purchase interval or
to have those payroll deductions applied to the purchase of shares of the
Corporation's Common Stock at the end of such interval. However, I may not
rejoin that particular offering period at any later date. Upon the termination
of my employment for any reason, including death or disability, or my loss of
eligible employee status, my participation in the ESPP will immediately cease
and all my payroll deductions for the purchase interval in which my employment
terminates or my loss of eligibility occurs will automatically be refunded.
If I take an unpaid leave of absence, my payroll deductions will
immediately cease, and any payroll deductions for the purchase interval in
which my leave begins will, at my election, either be refunded or applied to
the purchase of shares of Common Stock at the end of that purchase interval.
Upon my return to active service, my payroll deductions will automatically
resume at the rate in effect when my leave began.
A stock certificate for the shares purchased on my behalf will
automatically be deposited into a brokerage account which the Corporation will
open on my behalf. I will notify the Corporation of any sale or disposition of
my ESPP shares, and I will satisfy all applicable income and employment tax
withholding requirements at the time of such sale or disposition.
The Corporation has the right, exercisable in its sole discretion, to
amend or terminate the ESPP at any time, with such amendment or termination to
become effective immediately following the exercise of outstanding purchase
rights at the end of any current purchase interval. Should the Corporation
elect to terminate the ESPP, I will have no further rights to purchase shares
of Common Stock pursuant to this Agreement.
The effectiveness of this Agreement is dependent upon my eligibility to
participate in the ESPP, as well as the Corporation's compliance with
applicable regulatory requirements.
Date:__________________, 199_ ---------------------------------------
Signature of Employee
Entry Date:____________, 199_ Printed Name:__________________________
<PAGE> 1
EXHIBIT 99.3
Giga-tronics Incorporated Employee Stock Purchase Plan Enrollment/Change Form
<PAGE> 2
EMPLOYEE STOCK PURCHASE PLAN ("ESPP")
ENROLLMENT/CHANGE FORM
<TABLE>
<CAPTION>
ACTION COMPLETE SECTIONS:
------ ------------------
<S> <C> <C>
[SECTION 1:] [ ] New Enrollment 2, 3, 7 and sign attached
ACTION Stock Purchase Agreement
[ ] Change Payroll Deductions 2, 4, 7
[ ] Terminate Payroll Deductions 2, 5, 7
[ ] Leave of Absence 2, 6, 7
====================================================================================================================================
[SECTION 2:] Name _______________________________________________________________________________________
PERSONNEL Last First MI Dept.
DATA
Home Address _______________________________________________________________________________
Street
____________________________________________________________________________________
City State Zip Code
Social Security #: [ ][ ][ ] - [ ][ ] - [ ][ ][ ][ ]
====================================================================================================================================
[SECTION 3:] Effective with the Purchase
NEW Interval Beginning: Payroll Deduction Amount _____% of base salary*
ENROLLMENT [ ] March 1, 199__
[ ] September 1, 199__ * Must be a multiple of 1% up to a maximum of 10% of
base salary
[ ] Initial Offering Period
====================================================================================================================================
[SECTION 4:] Effective with the I authorize the following new level of payroll
CHANGE Pay Period Beginning: _______________________ deductions: ____% of base salary*
PAYROLL Month, Day and Year
DEDUCTIONS * Must be a multiple of 1% up to a maximum of 10% of
base salary
NOTE: You may reduce your rate of payroll deductions once per purchase interval to become effective as soon as
possible following the filing of the change form. You may also increase your rate of payroll deductions
to become effective as of the start date of the next purchase interval.
====================================================================================================================================
[SECTION 5:] Effective with the Your election to terminate your payroll deductions for the
TERMINATE Pay Period Beginning: _______________________ balance of the offering period cannot be changed, and you may
PAYROLL Month, Day and Year not rejoin the offering period at a later date. You will not
DEDUCTIONS be able to resume participation in the ESPP until a new purchase
interval begins.
In connection with my voluntary termination of payroll deductions, I elect the following action with respect to my
ESPP payroll deductions to date in the current purchase interval:
[ ] Purchase Giga-tronics shares at end of the interval
OR
[ ] Refund ESPP payroll deductions collected
NOTE: If your employment terminates for any reason or your eligibility status changes ([less than] 20 hrs/wk or
[less than] 5 months/yr), you will immediately cease to participate in the ESPP, and your ESPP payroll deductions
collected in that purchase interval will automatically be refunded to you.
====================================================================================================================================
[SECTION 6:] In connection with my unpaid leave of absence, I elect the following action with respect to my ESP payroll
deductions to date in the current purchase interval:
LEAVE OF
ABSENCE
[ ] Purchase Giga-tronics shares at end of the interval
OR
[ ] Refund ESPP payroll deductions collected
NOTE: If you take an unpaid leave of absence, your payroll deductions will immediately cease. Upon your return to active
service, your payroll deductions will automatically resume at the rate in effect for you at the time you went on
leave.
====================================================================================================================================
[SECTION 7:]
AUTHORIZATION
I hereby authorize the specific action or actions indicated above.
__________________________ ____________________________________________________________
Date Signature of Employee
</TABLE>
