<PAGE> 1
As filed with the Securities and Exchange Commission on November 25, 1996
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
REMEC, INC.
(Exact Name of Registrant as Specified in its Charter)
California 95-3814301
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
9404 Chesapeake Drive, San Diego, California 92123
(Address of Principal Executive Offices)
Magnum Microwave Corporation 1990 Employee Stock Option Plan and
1996 Nonemployee Directors Stock Option Plan
(Full Title of the Plan)
Ronald E. Ragland, Chief Executive Officer
9404 Chesapeake Drive
San Diego, California 92123
(Name and Address of Agent For Service)
(619) 560-1301
(Telephone number, including area code, of agent for service)
Copy to: Richard Friedman, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301-1908
(415) 324-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price per offering registration
to be registered registered share (1) price fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 206,551 $17.125 $3,537,186 $1,072
$.01 par value
===================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of
registration fee pursuant to Rule 457(c) under the Securities Act, as
amended, based on the last sale reported of the Registrant's Common
Stock on the Nasdaq National Market on November 19, 1996.
<PAGE> 2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the
Securities and Exchange Commission (the "Commission") by the registrant are
incorporated by reference in this registration statement:
(a) The registrant's latest annual report (Form 10-K) filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities Act"), that
contains audited financial statements for the registrant's latest fiscal year
for which such statements have been filed;
(b) All other fiscal reports filed by the registrant pursuant
to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report or prospectus referred to in (a) above; and
(c) The description of the Common Stock of the registrant
contained in the registration statement filed under the Exchange Act registering
such Common Stock under Section 12 of the Exchange Act.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 should
be deemed to be incorporated by reference in this registration statement and to
be part thereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant has the power to indemnify its officers and
directors against liability for certain acts pursuant to Section 317 of the
California Corporations Code. Articles Fourth and Fifth of the registrants
Amended and Restated Articles of Incorporation provide as follows:
"Fourth: The liability of directors of this
Corporation for monetary damages shall be eliminated to the
fullest extent permissible under California law.
"Fifth: This Corporation is authorized to provide
indemnification of agents (as defined in Section 317 of the
California Corporations Code) for breach of duty to this
Corporation and its shareholders through bylaw provisions, or
through agreements with the agents, or otherwise, in excess of
the indemnification otherwise permitted by Section 317 of the
California Corporations Code, subject to the limits on such
excess indemnification set forth in Section 204 of the Code."
-2-
<PAGE> 3
In addition, Article V of the registrants bylaws provides that
the registrant shall indemnify its directors and executive officers to the
fullest extent not prohibited by California Corporations Code and provides for
the advancement of expenses upon a receipt of an undertaking to repay such
amounts if the person is determined ultimately not to be entitled to
indemnification.
The registrant has entered into Indemnification Agreements
with its officers and directors.
ITEM 8. EXHIBITS
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (see pages 5 and 6)
99.1 Magnum Microwave Corporation 1990 Employee Stock
Option Plan
99.2 1996 Nonemployee Directors Stock Option Plan
ITEM 9. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(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) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in
-3-
<PAGE> 4
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registrations 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 liability under the Securities Act, each filing of the registrants
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed 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 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 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 Securities Act and will be governed by the final
adjudication of such issue.
-4-
<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 San Diego, State of California, on November 21, 1996.
REMEC, INC.
By: /s/ Ronald E. Ragland
------------------------------
Ronald E. Ragland
Chief Executive Officer
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Ronald E. Ragland,
Errol Ekaireb and Thomas A. George, or either of them, with full power of
substitution, such person's true and lawful attorneys-in-fact and agents for
such person in such person's name, place and stead, in any and all capacities,
to sign any or all amendments (including post-effective amendments) to this
Registration Statement on Form S-8 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 in order to effectuate the same
as fully, to all intents and purposes, as he or such person might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
/s/ Ronald E. Ragland Chairman of the Board and November 20,
- --------------------------- Chief Executive Officer 1996
Ronald E. Ragland (Principal Executive Officer)
/s/ Errol Ekaireb President, Chief Operating November 20,
- --------------------------- Officer and Director 1996
Errol Ekaireb
/s/ Jack A. Giles Executive Vice President, November 20,
- --------------------------- President of REMEC 1996
Jack A. Giles Microwave Division and
Director
-5-
<PAGE> 6
/s/ Denny Morgan Senior Vice President, Chief November 20,
- ---------------------------- Engineer and Director 1996
Denny Morgan
/s/ Joseph T. Lee Executive Vice President and November 20,
- ---------------------------- Director 1996
Joseph T. Lee
/s/ Thomas A. George Chief Financial Officer, Senior November 20,
- ---------------------------- Vice President and Secretary 1996
Thomas A. George (Principal Accounting officer)
/s/ Andre R. Horn Director November 20,
- ---------------------------- 1996
Andre R. Horn
/s/ Gary L. Luick Director November 20,
- ---------------------------- 1996
Gary L. Luick
/s/ Jeffrey M. Nash Director November 20,
- ---------------------------- 1996
Jeffrey M. Nash
/s/ Thomas A. Corcoran Director November 20,
- ---------------------------- 1996
Thomas A. Corcoran
/s/ William H. Gibbs Director November 20,
- ---------------------------- 1996
William H. Gibbs
-6-
<PAGE> 7
INDEX TO EXHIBITS
ITEM
NO. Description of Item
5 Opinion of Heller Ehrman
23.1 Consent of Heller Ehrman White & McAuliffe (filed as
part of Exhibit 5)
23.2 Consent of Ernst & Young, LLP, Independent Auditors
24 Power of Attorney (see pages 5 and 6)
99.1 Magnum Microwave Corporation 1990 Employee Stock
Option Plan
99.2 1996 Nonemployee Directors Stock Option Plan
-7-
<PAGE> 1
Exhibit 5
[LETTERHEAD OF HELLER EHRMAN WHITE & MCAULIFFE]
November 21, 1996
21860-0003
REMEC, Inc.
9404 Chesapeake Drive
San Diego, California 92123
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to REMEC, Inc., a California
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") which the Company proposes to file with
the Securities Exchange Commission on November 21, 1996 for the purposes of
registering under the Securities Exchange Act of 1933, as amended, 206,551
shares of its Common Stock, $.01 par value (the "Shares"). The Shares are
issuable under the Company's 1996 Nonemployee Directors Stock Option Plan and
the Magnum Microwave Corporation ("Magnum") 1990 Employee Stock Option Plan
assumed by the Company in connection with its acquisition of Magnum
(collectively the "Plans").
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following
records, documents, and instruments:
(a) The Restated Articles of Incorporation of the
Company, certified by the California Secretary of
State as of November 20, 1996, and certified to us by
an officer of the Company as being complete and in
full force as of the date of this opinion;
(b) The Bylaws of the Company certified to us by an
officer of the Company as being complete and in
full force and effect as of the date of this
opinion;
<PAGE> 2
REMEC, Inc.
November 21, 1996 Page 2
(c) A certificate of an officer of the Company
(i) attaching records certified to us as
constituting all records of proceedings and
actions of the Board of Directors, including any
committee thereof, relating to the adoption or
assumption of the Plans, the issuance of the Shares,
and the Registration Statement, and (ii) certifying
as to certain factual matters;
(d) The Registration Statement;
(e) The Plans; and
(f) A letter from First Interstate Bank, the Company's
transfer agent, dated November 20, 1996, as to the
number of shares of the Company's common stock that
were outstanding on November 19, 1996.
This opinion is limited to the federal law of the United
States of America and the law of the State of California, and we disclaim any
opinion as to the laws of any other jurisdiction. We further disclaim any
opinion as to any other statute, rule, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local governmental
body or as to any related judicial or administrative opinion.
Based on the foregoing and our examination of such questions
of law as we have deemed necessary or appropriate for the purpose of this
opinion, and assuming that (i) the Registration Statement becomes and remains
effective during the period when the Shares are offered and issued, (ii) the
full consideration stated in the Plans is paid for each Share and that such
consideration in respect of each Share includes payment of cash or other lawful
consideration, (iii) appropriate certificates evidencing the Shares are executed
and delivered by the Company, and (iv) all applicable securities laws are
complied with, it is our opinion that when issued and sold by the Company, after
payment therefore in the manner provided in the Plans and Registration
Statement, the Shares will be legally issued, fully paid and nonassessable.
<PAGE> 3
REMEC, Inc.
November 21, 1996 Page 3
This opinion is rendered to you in connection with the
Registration Statement and is solely for your benefit. This opinion may not be
relied upon by you for any other purpose, or relied upon by any other person,
firm, corporation or other entity for any purpose, without our prior written
consent. We disclaim any obligation to advise you of any change of law that
occurs, or any facts of which we may become aware, after the date of this
opinion.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
\s\ Heller Ehrman White & McAuliffe
<PAGE> 1
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Magnum Microwave Corporation 1990 Employee Stock
Option Plan and 1996 Nonemployee Directors Stock Option Plan of REMEC, Inc. of
our report dated February 29, 1996 with respect to the consolidated financial
statements and schedule of REMEC, Inc. incorporated by reference in its Annual
Report (Form 10-K) for the year ended January 31, 1996, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Diego, California
November 22, 1996
<PAGE> 1
Exhibit 99.1
MAGNUM MICROWAVE CORPORATION
1990 EMPLOYEE STOCK OPTION PLAN
1. Purpose.
This 1990 Stock Option Plan (the "Plan") is intended to
encourage ownership of Common Stock of Magnum Microwave Corporation, a
California corporation (hereinafter called the "Company"), by key employees,
directors, consultants and others who may be expected to contribute to the
success of the Company and its subsidiaries (sometimes collectively referred to
as "Optionees"). For the purposes of the Plan, the term "Subsidiary" shall mean
any present or future corporation which would be a "subsidiary corporation" as
that term is defined in Section 425 of the Internal Revenue Code of 1986, as
amended (the "Code").
The Plan provides for the grant of options to purchase shares
of the Company's authorized but unissued Common Stock to selected optionees. By
extending to such persons the opportunity to acquire proprietary interests in
the Company and to participate in its success, the Plan may be expected to
benefit the Company and its stockholders by making it possible for the Company
and its Subsidiaries to attract and retain the best available talent or other
desirable resources and by providing incentives for key management and technical
personnel to exert their best efforts to increase the value of the Company's
shares. Only employees of the Company or a Subsidiary may receive incentive
stock options under the Plan. Options granted under the Plan may include
non-statutory options and options intended to qualify as incentive stock
options, as that term is defined in Section 422A of the Code.
2. Stock Reserved for the Plan.
The aggregate number of shares which may be issued under the
Plan, subject to adjustment as provided in Paragraph 14 below, shall not exceed
547,000 shares of the Common Stock of the Company. If any option granted under
the Plan expires or terminates for any reason without being exercised in full,
or is reduced as to the number of shares covered thereby, then the unpurchased
shares subject thereto, or the shares by which such option is reduced, shall
again become available for the purposes of the Plan.
3. Administration of the Plan.
(a) Committee of the Board. The Plan shall be administered by
the Board of Directors of the Company (the "Board") or by a committee appointed
by the Board (the "Committee") which shall include not less than three persons
selected by the Board. If the Company has a class of securities registered under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
Committee shall consist of three or more persons "disinterested" within the
<PAGE> 2
meaning of Rule 16b-3 (or any successor rule) of the Securities and Exchange
Commission under the Securities Exchange Act of 1934.
Once appointed, the Committee shall continue to serve until
otherwise directed by the Board. From time to time, the Board may increase or
decrease the size of the Committee, add additional members to, remove members
(with or without cause) from, appoint new members in substitution therefor, and
fill vacancies, however caused, in the Committee. The Committee may select one
of its members as its Chairman and shall hold its meetings at such times and
places as it may determine. A majority of its members shall constitute a quorum.
The Committee shall act pursuant to a vote of the majority of its members,
whether present in person or by telephonic means, at a meeting of the Committee,
or by the unanimous written consent of its members. The Committee may appoint a
secretary and shall keep minutes of all its meetings. Copies of the minutes
shall be provided to the Board. Subject to the limitations prescribed by the
Plan and the Board, the Committee may establish and follow such rules and
regulations for the conduct of its business as it shall deem advisable.
(b) Administrative Powers. Subject to the express provisions
of the Plan, the Board or Committee shall have full authority, in its
discretion, to take the following actions, which shall be conclusive and
binding:
(i) to construe and interpret the Plan and apply its
provisions;
(ii) to promulgate, amend and rescind rules and
regulations relating to the administration of the Plan;
(iii) to authorize any person to execute, on behalf
of the Company, any instrument required to carry out the purposes of the Plan;
(iv) to determine when options are to be granted
under the Plan;
(v) to determine the individuals to whom option
rights shall be granted under the Plan (as determined pursuant to Paragraph 4
below);
(vi) to determine the number of shares to be made
subject to each option;
(vii) to determine the terms and provisions of the
respective option agreements (which need not be identical), including, without
limitation, the exercise price and medium of payment, to determine whether such
option is to be classified as an incentive stock option or as a non-statutory
stock option, and to specify the provisions of the stock option agreement
relating to such option;
2
<PAGE> 3
(viii) to make any adjustment in the exercise price,
the number of shares subject to, or the term of an option, by cancellation of an
outstanding option and a subsequent regranting of an option, or by amendment or
substitution of an outstanding option, subject to applicable legal restrictions
and to the consent of the Optionee who entered into such agreement;
(ix) to determine the duration and purpose of leaves
of absences which may be granted to employees without constituting termination
of their employment for purposes of the Plan; and
(x) to make any and all other determinations which
they find necessary or advisable for administration of the Plan.
(c) The Board or the Committee shall report in writing to the
Secretary of the Company the names of the persons selected as participants in
the Plan, and the terms and conditions of the option granted to each of them.
4. Eligibility.
(a) General Rule. Options may be granted to key employees,
directors, consultants and others who may be expected to contribute to the
success of the Company. In making such selections, the Board or the Committee
may take into account the nature of the services rendered by the person it deems
eligible hereunder, their present and potential contributions to the Company's
success, and such other factors as the Board or the Committee in its discretion
shall deem relevant. Options may also be granted under the Plan in connection
with the acquisition, by purchase, lease, merger, consolidation or otherwise, of
the business and assets of any corporation, firm or association, including
options granted to employees thereof who become employees of the Company or a
Subsidiary, or for other proper corporate purposes.
(b) Limitations.
(i) No incentive stock options shall be granted under
the Plan except to employees of the Company and any Subsidiary;
(ii) No incentive stock options shall be granted to
any particular individual if the fair market value (as defined in Paragraph 5)
of the stock (determined at the date of grant) with respect to which incentive
stock options are first exercisable by such individual during any calendar year
under the Plan and all similar plans of the Company and its Subsidiaries exceeds
$100,000, as such amount is determined under Section 422A of the Code.
(iii) Each incentive stock option granted under this
Plan to an optionee who owns (after application of the family and other
attribution rules of Section 425(d) of the Code), on the date of the grant of
such option, more than 10% of the total combined voting power of all classes of
stock of the Company or
3
<PAGE> 4
its parent subsidiary corporations (a "10% Employee") shall have an exercise
price that is not less than 110% of the aggregate fair market value of the stock
subject to the option on the date granted, and such option by its terms shall
not be exercisable after the expiration of five years from the date such option
is granted.
5. Option Prices.
The purchase price of the Common Stock underlying each option
shall be determined by the Board or the Committee, but shall not be less than
100% of the fair market value of the stock at the time of the grant of the
option. Such fair market value shall be determined by the Board or the Committee
and may be computed by such method as the Board or the Committee believes will
reflect the fair market value of the Common Stock on such day.
6. Payment for Shares.
(a) General Rule. Payment for stock purchased upon any
exercise of an option granted hereunder shall be made in full in cash at the
time of exercise, or, with shares of the Company's Common Stock which are
already owned by Optionee, other than shares acquired within the prior six
months upon exercise of an option granted under the Plan, and which are
surrendered to the Company in good form for transfer. Such shares shall be
valued at their fair market value on the date when the new shares are purchased
under the Plan. The proceeds from the sale of stock upon exercise of an option
are to be added to the general funds of the Company and used for its corporate
purposes as the Board shall determine.
(b) Withholding. The Company or any Subsidiary shall be
entitled to deduct from other compensation payable to each holder any sums
required by federal, state or local tax law to be withheld with respect to the
exercise of an option or, in the alternative, the Company may require the holder
or other person exercising such option to pay, or the holder or such other
person may pay, such sums to the employer corporation. The Board or Committee
may, in its discretion, permit an optionee or purchaser to satisfy this
obligation by delivering to the Company shares of Common Stock or cancellation
of a portion of the outstanding option.
7. Term of Options.
The term of each option shall be for such period as the Board
or the Committee shall determine, but not more than ten years from the date of
granting thereof, and shall be subject to earlier termination as provided
herein.
8. Exercise of Options.
Unless otherwise provided in the option agreement, each option
shall be exercisable, in whole at any time, or in part from time to time during
the term of the option. So long as the stock of the Company is not listed on any
stock
4
<PAGE> 5
exchange, or so long as the stock is not traded on a regular basis, as
determined by the Company, on NASDAQ or any successor thereto in the
over-the-counter market, the Company may reserve for itself (i) a right of first
refusal on any sale or disposition of stock acquired upon exercise of an option
(if the Company chooses to repurchase such stock, it will do so on terms
equivalent to those offered by the intended transferee) and (ii) a right to
repurchase stock acquired upon exercise of an option if an Optionee's employment
or association with the Company or a Subsidiary is terminated for any reason or
in other circumstances, at a price equal to the fair market value of the stock.
9. Conditions of Options.
The Board or the Committee shall have full authority in its
discretion to prescribe in any stock option agreement that the option will be
exercisable in full at any time or from time to time during the term of the
option, or to provide that the option will be exercisable in such installments
and at such times during the term of the option as the Board or the Committee
may determine, or to specify additional conditions which the optionee must
fulfill in order to exercise the option.
10. Rights as a Shareholder.
Each option agreement shall provide that no optionee or
transferee of an option shall have any rights as a shareholder with respect to
any of the shares subject to the option until the date of issuance of a stock
certificate for such shares. No adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate is issued, except as provided in Paragraph 14 below.
11. Nontransferability of Options.
No option granted under the Plan shall be transferable
otherwise than by will or the laws of descent and distribution, and an option
may be exercised, during the lifetime of the holder thereof, only by such holder
or such holder's guardian or legal representative.
12. Termination of Association.
In the event of the termination of association with the
Company or any Subsidiary, other than for cause or by reason of death or
permanent disability, of the holder of an option acquiring such by reason of his
or her position as an employee, director or consultant, unless his or her option
shall have been previously terminated pursuant to the provisions of the option
agreement or unless otherwise provided in his or her option agreement, the
holder may exercise his or her option any time within thirty (30) days after
such termination, but in no event after the expiration of the term of the
option, if and to the extent the holder was entitled to exercise such option at
the date of such termination. Options granted
5
<PAGE> 6
under the Plan shall not be affected by any change of duties or position so long
as such holder continues to be associated with the Company or Subsidiary.
Nothing in the Plan or in any option granted pursuant to the Plan shall confer
on any individual any right to continue an association with the Company or any
of its Subsidiaries or interfere in any way with the right of the Company or any
of its Subsidiaries to terminate such association at any time. A leave of
absence granted to an optionee and approved in writing by the Board or the
Committee shall not be deemed a termination of association within the meaning of
this paragraph. In the event the termination of association with the Company is
for cause, the option shall terminate on the date of termination of association.
For purposes of this paragraph, "permanent disability" shall
mean a disability of the type defined in Section 105(d)(4) of the Code.
Employment or association shall be deemed terminated for cause if the optionee
is determined by the Board of the Company to have willfully breached his or her
duty in the course of employment or association or to have committed an act of
embezzlement, fraud, dishonesty or deliberate disregard of the rules of the
Company or any Subsidiary or engaged in any conduct which constitutes unfair
competition with the Company or any Subsidiary.
13. Death or Permanent Disability of Holder of Option.
In the event of death or permanent disability of the holder of
an option while associated with the Company or a Subsidiary, or while the holder
is still entitled to exercise the option as provided in Paragraph 12 hereof, the
option granted may be exercised at any time within a period of twelve months
after the holder's death or permanent disability, but in no event after the
expiration of the term of such option, if and to the extent that the holder was
entitled to exercise such option at the date of his or her death or permanent
disability. In the case of the death of the holder of an option, the option
granted may be exercised by a legatee or legatees of the option holder under his
or her last will or by his or her personal; representatives or distributees.
14. Adjustments Upon Changes in Capitalization and Corporate
Changes.
If there shall be any change in the stock subject to this Plan
or the stock subject to any option granted hereunder, through merger,
consolidation, reorganization, recapitalization, reincorporation, stock split,
stock dividend, or other change in the corporate structure of the Company,
appropriate adjustments shall be made by the Board in the aggregate number of
shares subject to this Plan, and the number of shares and price per share
subject to outstanding options in order to preserve, but not to increase, the
benefits of the optionee; provided, however, that subject to any required action
by the stockholders, if the Company shall not be the surviving corporation any
merger, consolidation, sale of substantially all the assets of the Company or
other reorganization, every option outstanding hereunder shall terminate, unless
the surviving corporation shall assume (with appropriate changes) the
outstanding options or replace them with new options of comparable value.
6
<PAGE> 7
Notwithstanding the preceding proviso, if after a merger or
consolidation, the surviving corporation does not assume or replace the
outstanding options hereunder, each optionee shall have the right, immediately
prior to such merger or consolidation, to exercise his or her outstanding
options to the extent of all or any part of the aggregate number of shares
subject to such options regardless of the vesting period thereunder.
The determination by the Board as to what adjustments shall be
made under this Paragraph 14 shall be final and conclusive. No fractional shares
of stock shall be issued under the Plan on account of any such adjustment. If
for any reason shares subject to an option would include fractional shares of
stock, such option may be exercised as to the next highest whole number of
shares.
For purposes of this Plan, the determination as to whether or
not the Company or a parent of the Company or any Subsidiary is the "surviving
corporation" in any merger or consolidation shall be made on the basis of the
relative equity interests of the stockholders in the Company existing after such
merger or consolidation as follows: If following any merger or consolidation,
the holders of outstanding voting securities of the Company prior to such merger
or consolidation own equity securities possessing more than 50% of the voting
power of the corporation existing after such merger or consolidation, then for
purposes of the Plan, the Company or Subsidiary shall be the surviving
corporation. In all other cases, the Company or Subsidiary shall not be the
surviving corporation. In making the determination of ownership by the
stockholders of a corporation, immediately after a consolidation or merger, of
securities pursuant to this Paragraph 14, securities which they owned
immediately prior to such consolidation or merger as stockholders of another
party to the transaction shall be disregarded.
15. Government and Stock Exchange Regulations.
The Company shall not be required to issue any shares upon the
exercise of any option unless and until any then applicable requirements of the
Securities and Exchange Commission, the California Department of Corporation or
other regulatory agencies having jurisdiction and of any exchanges upon which
stock of the Company may be listed shall have been fully complied with.
Upon the exercise of an option at a time when there is not in
effect a registration statement under the Securities Act of 1933 or a similar
statute (the "Act") relating to the stock issuable upon exercise thereof and
available for delivery a prospectus meeting the requirements of Section 10(a)(3)
of said Act, or if the rules or interpretations of the Securities and Exchange
Commission so require, the stock may be issued only if the holder represents and
warrants in writing to the Company that the shares purchased are being acquired
for investment and not with a view to the distribution thereof.
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16. Amendment and Termination.
Unless the Plan shall have been terminated as hereinafter
provided, the Plan shall expire on August 1, 2000. The Plan may be terminated,
modified or amended by the stockholders of the Company. The Board may also
terminate the Plan at any time and may modify or amend the Plan in such respects
as it shall deem advisable; provided, however, that the Board may not, without
further approval of the holders of outstanding shares of the Company having a
majority of the general voting power: (i) increase the maximum number of shares
as to which options may be granted under the Plan, except as provided in
Paragraph 14; (ii) materially increase the benefits accruing to participants
under the Plan; (iii) decrease the minimum option price; (iv) change the
provisions regarding the eligibility in the Plan; or (v) extend the term of the
Plan or the maximum period during which any option be exercised.
No option may be granted during any suspension of the Plan or
after its termination. Except as provided in Paragraph 14 hereof, the amendment,
suspension or termination of the Plan shall not, without the consent of the
holder of an option, alter or impair any rights or obligations under any option
granted under the Plan.
17. Effectiveness of the Plan.
The effective date of the Plan is August 1, 1990. However,
implementation of the Plan is subject to qualification of the options and
issuance of the underlying shares with the California Department of Corporations
and to approval of the Plan by the holders of a majority of the outstanding
shares of capital stock of the Company. Options may be granted under the Plan
prior to such stockholder approval but each option so granted shall expressly
provide that it is subject to the aforementioned conditions and in no event may
any option granted under the Plan be exercised in whole or in part prior to such
stockholder approval.
18. Interpretation of the Plan.
If any law, rule or regulation referred to in the Plan shall
be amended or succeeded, the reference herein to such law, rule or regulation
shall be deemed to refer to such amended or successor law, rule or regulation
unless the Board or the Committee determines that such reference would not
comply with the intent of the Plan.
19. Governing Law.
The interpretation, performance and enforcement of this Plan
shall be governed by the laws of the State of California.
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EXHIBIT 99.2
REMEC, INC.
1996 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
1. Purpose.
The purpose of this Plan is to offer Nonemployee Directors of
REMEC, Inc. an opportunity to acquire a proprietary interest in the success of
the Company, or to increase such interest, by purchasing shares of the Company's
Common Stock. This Plan provides for the grant of Options to purchase Shares.
Options granted hereunder shall be "Nonstatutory Options," and shall not include
"incentive stock options" intended to qualify for treatment under Sections 421
and 422 of the Internal Revenue Code of 1986, as amended.
2. Definitions.
As used herein, the following definitions shall apply:
(a) "Administrator" shall mean the entity, either the Board or
the committee of the Board, responsible for administering this Plan, as provided
in Section 3.
(b) "Affiliate" means a parent or subsidiary corporation as
defined in the applicable provisions (currently, Sections 424(e) and (f),
respectively) of the Code.
(c) "Board" shall mean the Board of Directors of the Company,
as constituted from time to time.
(d) "Change in Control" shall mean the occurrence of any one
of the following:
(i) any "person", as such term is used in Sections
13(d) and 14(d) of the Exchange Act (other than the Company, an Affiliate, or a
Company employee benefit plan, including any trustee of such plan acting as
trustee) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 35% or more of the combined voting power of the Company's then
outstanding securities;
(ii) the solicitation of proxies (within the meaning
of Rule 14a-1(k) under the Exchange Act and any successor rule) with respect to
the election of any director of the Company where such solicitation is for any
candidate who is not a candidate proposed by a majority of the Board in office
prior to the time of such election; or
<PAGE> 2
(iii) the dissolution or liquidation (partial or
total) of the Company or a sale of assets involving 30% or more of the assets of
the Company, or any merger or reorganization of the Company, whether or not
another entity is the survivor, or other transaction pursuant to which the
holders, as a group, of all of the shares of the Company outstanding prior to
the transaction hold, as a group, less than 70% of the shares of the Company
outstanding after the transaction.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute.
(f) "Company" shall mean REMEC, Inc., a California
corporation.
(g) "Common Stock" shall mean the Common Stock of the Company.
(h) "Disability" means permanent and total disability as
determined by the Administrator in accordance with the standards set forth in
Section 22(e)(3) of the Code.
(i) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
(j) "Expiration Date" shall mean the last day of the term of
an Option established under Section 6(c).
(k) "Fair Market Value" means as of any given date (a) the
closing price of the Common Stock on the Nasdaq National Market as reported in
the Wall Street Journal; or (b) if the Common Stock is no longer quoted on the
Nasdaq National Market but is listed on an established stock exchange or quoted
on any other established interdealer quotation system, the closing price for the
Common Stock on such exchange or system, as reported in the Wall Street Journal.
(l) "Nonemployee Director" shall mean any person who is a
member of the Board but is not an employee of the Company or any Affiliate of
the Company and has not been an employee of the Company or any Affiliate of the
Company at any time during the preceding twelve months. Service as a director
does not in itself constitute employment for purposes of this definition.
(m) "Option" shall mean a stock option granted pursuant to
this Plan. Each Option shall be a nonstatutory option not intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
(n) "Option Agreement" shall mean the written agreement
described in Section 6 evidencing the grant of an Option to a Nonemployee
Director and containing the terms, conditions and restrictions pertaining to
such Option.
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(o) "Optionee" shall mean a Nonemployee Director who holds an
Option.
(p) "Plan" shall mean this REMEC, Inc. 1996 Nonemployee
Directors Stock Option Plan, as it may be amended from time to time.
(q) "Section" unless the context clearly indicates otherwise,
shall refer to a Section of this Plan.
(r) "Shares" shall mean the shares of Common Stock subject to
an Option granted under this Plan.
(s) "Tax Date" means the date defined in Section 7(c).
(t) "Termination" means, for purposes of the Plan, with
respect to an Optionee, that the Optionee has ceased to be, for any reason, a
director of the Company.
(u) "Window Period" means any 10-day period beginning on the
third business day following the date of release for publication of the
Company's quarterly or annual summary statements of earnings or such other
period as is specified in Rule 16b-3(e) under the Exchange Act, as such rule may
be amended from time to time, or any successor to such rule.
3. Administration.
(a) Administrator. The Plan shall be administered by the Board
or, upon delegation by the Board, by a committee consisting of not less than two
directors (in either case, the "Administrator"). The Administrator shall have no
authority, discretion or power to select the Nonemployee Directors who will
receive Options hereunder or to set the number of shares to be covered by each
Option granted hereunder, the exercise price of such Option, the timing of the
grant of such Option or the period within which such Option may be exercised. In
connection with the administration of the Plan, the Administrator shall have the
powers possessed by the Board. The Administrator may act only by a majority of
its members. The Administrator may delegate administrative duties to such
employees of the Company as it deems proper, so long as such delegation is not
otherwise prohibited by Rule 16b-3 under the Exchange Act. The Board at any time
may terminate the authority delegated to any committee of the Board pursuant to
this Section 3(a) and revest in the Board the administration of the Plan.
(b) Administrator Determinations Binding. Subject to the
limitations set forth in Section 3(a), the Administrator may adopt, alter and
repeal administrative rules, guidelines and practices governing the Plan as it
from time to time shall deem advisable, may interpret the terms and provisions
of the Plan, any Option and any Option Agreement and may otherwise supervise the
administration of the Plan. All decisions made by the Administrator under the
Plan shall be
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<PAGE> 4
binding on all persons, including the Company and Optionees. No member of the
Administrator shall be liable for any action that he or she has in good faith
taken or failed to take with respect to this Plan or any Option.
4. Eligibility.
Only Nonemployee Directors may receive Options under this
Plan.
5. Shares Subject to Plan.
(a) Aggregate Number. Subject to Section 9, the total number
of shares of Common Stock reserved and available for issuance pursuant to
Options under this Plan shall be 200,000 shares. Such shares may consist, in
whole or in part, of authorized and unissued shares or shares reacquired in
private transactions or open market purchases, but all shares issued under the
Plan regardless of source shall be counted against the 200,000 share limitation.
If any Option terminates or expires without being exercised in full, the shares
issuable under such Option shall again be available for issuance in connection
with other Options. If shares of Common Stock issued pursuant to an Option are
repurchased by the Company, such Common Stock shall not again be available for
issuance in connection with Options. To the extent the number of shares of
Common Stock issued pursuant to an Option is reduced to satisfy withholding tax
obligations, the number of shares withheld to satisfy the withholding tax
obligations shall not be available for later grant under the Plan.
(b) No Rights as a Shareholder. An Optionee shall have no
rights as a shareholder with respect to any Shares covered by his or her Option
until the issuance (as evidenced by the appropriate entry on the books of the
Company or its duly authorized transfer agent) of a stock certificate evidencing
such Shares. Subject to Section 9, no adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property),
distributions, or other rights for which the record date is prior to the date
the certificate is issued.
6. Grant of Options.
(a) Mandatory Initial Option Grants. Subject to the terms and
conditions of this Plan, if any person who is not, and has not been in the
preceding twelve months, an officer or employee of the Company and who has not
previously been a member of the Board is elected or appointed as a member of the
Board, then on the effective date of such appointment or election the Company
shall grant to such new Nonemployee Director an Option to purchase 10,000 Shares
at an exercise price equal to the Fair Market Value of such Shares on the date
of such option grant. This Section 6(a) shall apply to elections and
appointments beginning on and including May 29, 1996 and thereafter.
(b) Mandatory Annual Option Grants. Subject to the terms and
conditions of this Plan, on May 29, 1996 and on the first day of May each year
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<PAGE> 5
thereafter, the Company shall grant to each such Nonemployee Director then in
office (other than a Nonemployee director who received a Grant under Section
6(a) on that date or in the previous six months) an Option to purchase 3,500
Shares at an exercise price equal to the Fair Market Value of such Shares on the
date of such option grant.
(c) Terms; Vesting. Subject to the other provisions of this
Plan, each Option granted pursuant to this Plan shall be for a term of four and
one half years. Each Option granted under Section 6(a) shall became exercisable
30% at the end of the first year, 30% at the end of the second year and 40% at
the end of the third year so that the Option is 100% exercisable at the end of
the third year from the date of grant. Options granted under Section 6(b) shall
become exercisable daily (based on a 365 day year) beginning on the day after
the date of grant so that 30% of the number of Shares covered by such Option are
exercisable on the first anniversary of the date of grant, 30% of the number of
Shares covered by such Option are exercisable on the second anniversary of the
date of grant and 40% of the numbers of Shares covered by such Option are
exercisable on the third anniversary of the date of grant so that such Option
shall be fully exercisable on the third anniversary of the date such Option was
granted.
(d) Limitation on Other Grants. The Administrator shall have
no discretion to grant Options under this Plan other than as set forth in
Sections 6(a) and 6(b).
(e) Option Agreement. As soon as practicable after the grant
of an Option, the Optionee and the Company shall enter into a written Option
Agreement which specifies the date of grant, the number of Shares, the option
price, and the other terms and conditions applicable to the Option.
(f) Transferability. No Option shall be transferable otherwise
than by will or the laws of descent and distribution, and an Option shall be
exercisable during the Optionee's lifetime only by the Optionee.
(g) Limits on Exercise. Subject to the other provisions of
this Plan, an Option shall be exercisable in such amounts as are specified in
the Option Agreement.
(h) Exercise Procedures. To the extent the right to purchase
Shares has accrued, Options may be exercised, in whole or in part, from time to
time, by written notice from the Optionee to the Company stating the number of
Shares being purchased, accompanied by payment of the exercise price for the
Shares, and other applicable amounts, as provided in Section 7.
(i) Termination. In the event of Termination, Options held at
the date of Termination (and only to the extent then exercisable) may be
exercised in whole or in part at any time within three months after the date of
Termination (but in no event after the Expiration Date), but not thereafter.
Notwithstanding the
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<PAGE> 6
foregoing, if Termination is due to retirement or to death or Disability,
Options held at the date of Termination (and only to the extent then
exercisable) may be exercised in whole or in part by the Optionee in the case of
retirement or Disability, by the participant's guardian or legal representative
or by the person to whom the Option is transferred by will or the laws of
descent and distribution, at any time within two years from the date of
Termination (but in no event after the Expiration Date).
7. Payment and Taxes upon Exercise of Options.
(a) Purchase Price. The purchase price of Shares issued under
this Plan shall be paid in full at the time an Option is exercised.
(b) Delivery of Purchase Price. Optionees may make all or any
portion of any payment due to the Company
(i) upon exercise of an Option, or
(ii) with respect to federal, state, local or foreign
tax payable in connection with the exercise of an Option, by delivery of (x)
cash, (y) check, or (z) shares of Common Stock so long as, if applicable, such
property constitutes valid consideration for the Common Stock under, and
otherwise complies with, applicable law. Exercise of an Option may be made
pursuant to a "cashless exercise/sale" procedure pursuant to which funds to pay
for exercise of the Option are delivered to the Company by a broker upon receipt
of stock certificates from the Company, or pursuant to which Optionees obtain
margin loans from brokers to fund the exercise of the Option.
(c) Tax Withholding. The Optionee shall pay to the Company in
cash, promptly upon exercise of an Option or, if later, the date that the amount
of such obligations becomes determinable (in either case, the "Tax Date"), all
applicable federal, state, local and foreign withholding taxes that the
Administrator, in its discretion, determines to result upon exercise of an
Option or from a transfer or other disposition of shares of Common Stock
acquired upon exercise of an Option or otherwise related to an Option or shares
of Common Stock acquired in connection with an Option.
A person who has exercised an Option may make an election (i)
to tender to the Company previously-owned shares of Common Stock held for at
least six months, or (ii) to have shares of Common Stock to be obtained upon
exercise of the Option withheld by the Company on behalf of the Optionee, to pay
the amount of tax that the Administrator, in its discretion, determines to be
required to be withheld by the Company. Any election pursuant to clause (ii)
above by a Optionee subject to Section 16 of the Exchange Act shall be subject
to the following limitations: (1) such election must be made at least six months
before the Tax Date and shall be irrevocable; or (2) such election must be made
in (or made earlier to take effect in) any Window Period (and the withholding of
the
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<PAGE> 7
shares of Common Stock shall take place during such Window Period) and shall be
subject to approval by the Board, which approval may be given any time after
such election has been made, and the Option must be held at least six months
prior to the Tax Date; provided, that, the election referenced in clause (2)
above may not be made unless (A) such election is consistent with Rule
16b-3(c)(2)(ii) under the Exchange Act, and (B) the Company has been subject to
the reporting requirements of Section 13(a) of the Exchange Act for at least one
year and has filed all reports and statements required to be filed pursuant to
that section for that year. The right to so withhold shares of Common Stock
shall relate separately to each Option.
Any shares tendered to or withheld by the Company will be valued at
Fair Market Value on such date. The value of the shares of Common Stock tendered
or withheld may not exceed the required federal, state, local and foreign
withholding tax obligations as computed by the Company.
8. Use of Proceeds.
Proceeds from the sale of Shares pursuant to this Plan shall
be used for general corporate purposes.
9. Adjustment of Shares.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split or other change in corporate
structure affecting the Common Stock, appropriate adjustments shall be made by
the Administrator in the aggregate number and kind of shares of Stock reserved
for issuance under the Plan and in the number, kind and exercise price of shares
subject to outstanding Options; provided, however, that the number of shares
subject to any Option shall always be a whole number.
10. Effect of Change in Control.
In the event of a "Change in Control," any Options outstanding
as of the date such Change in Control is determined to have occurred and not
then exercisable and vested shall become fully exercisable and vested.
11. No Right to Directorship.
Neither this Plan nor any Option granted hereunder shall
confer upon any Optionee any right with respect to continuation of the
Optionee's membership on the Board or shall interfere in any way with provisions
in the Company's Articles of Incorporation and By-Laws relating to the election,
appointment, terms of office, and removal of members of the Board.
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<PAGE> 8
12. Legal Requirements.
The Company shall not be obligated to offer or sell any Shares
upon exercise of any Option unless the Shares are at that time effectively
registered or exempt from registration under the federal securities laws and the
offer and sale of the Shares are otherwise in compliance with all applicable
securities laws and the regulations of any stock exchange on which the Company's
securities may then be listed. The Company shall have no obligation to register
the securities covered by this Plan under the federal securities laws or take
any other steps as may be necessary to enable the securities covered by this
Plan to be offered and sold under federal or other securities laws. Upon
exercising all or any portion of an Option, an Optionee may be required to
furnish representations or undertakings deemed appropriate by the Company to
enable the offer and sale of the Shares or subsequent transfers of any interest
in the Shares to comply with applicable securities laws. Certificates evidencing
Shares acquired upon exercise of Options shall bear any legend required by, or
useful for purposes of compliance with, applicable securities laws, this Plan or
the Option Agreements.
13. Duration and Amendments.
(a) Duration. This Plan shall become effective upon adoption
by the Board provided, however, that no Option shall be exercisable unless and
until written consent of the shareholders of the Company, or approval of
shareholders of the Company voting at a validly called shareholders' meeting, is
obtained within 12 months after adoption by the Board. If such shareholder
approval is not obtained within such time, Options granted hereunder shall
terminate and be of no force and effect from and after expiration of such
12-month period.
(b) Amendment and Termination. The Board may amend, alter or
discontinue the Plan or any Option, but no amendment, alteration or
discontinuance shall be made which would impair the rights of an Optionee under
an outstanding Option without the Optionee's consent. In addition, the Board may
not amend or alter the Plan without the approval of shareholders of the Company
entitled to vote at a duly held shareholders' meeting or by an action by written
consent and, if at a meeting, a quorum of the voting power of the Company is
represented in person or by proxy, where such amendment or alteration would,
except as expressly provided in the Plan, increase the total number of shares
reserved for issuance pursuant to Options under the Plan or in such other
circumstances as the Board deems appropriate to comply with Rule 16b-3 under the
Exchange Act or otherwise. Notwithstanding any other provision of this Section
12(b), the provisions of the Plan governing (A) who is granted Options, (B) the
number of Shares to be covered by each Option, (C) the exercise price of each
Option, (D) the timing of the grant of each Option, or (E) the period within
which each Option may be exercised, shall not be amended more than once every
six months, other than to comport with changes in the Code or the rules
thereunder or the Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder.
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(c) Effect of Amendment or Termination. No Shares shall be
issued or sold under this Plan after the termination hereof, except upon
exercise of an Option granted before termination. Termination or amendment of
this Plan shall not affect any Shares previously issued and sold or any Option
previously granted under this Plan.
14. Rule 16b-3.
With respect to persons subject to Section 16 of the Exchange
Act, transactions under this Plan are intended to comply with the applicable
conditions of Rule 16b-3 under the Exchange Act. To the extent any provision of
this Plan or action by the Administrator fails to so comply, it shall be
adjusted to comply with Rule 16b-3, to the extent permitted by law and deemed
advisable by the Administrator. It shall be the responsibility of persons
subject to Section 16 of the Exchange Act, not of the Company or the
Administrator, to comply with the requirements of Section 16 of the Exchange
Act; and neither the Company nor the Administrator shall be liable if this Plan
or any transaction under this Plan fails to comply with the applicable
conditions of Rule 16b-3, or if any such person incurs any liability under
Section 16 of the Exchange Act.
Adopted by the Board of Directors: May 29, 1996
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