As filed with the Securities and Exchange Commission on December 16, 1998
Registration No. 333-
-----------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MICROLOG CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
VIRGINIA 52-0901291
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
20270 GOLDENROD LANE
GERMANTOWN, MARYLAND 20876
(Address of Principal Executive Offices) (Zip Code)
MICROLOG CORPORATION
1989 NON-EMPLOYEE DIRECTOR NON-QUALIFIED
STOCK OPTION PLAN, AS AMENDED AND RESTATED
- --------------------------------------------------------------------------------
(Full title of the plan)
RICHARD A. THOMPSON
PRESIDENT
MICROLOG CORPORATION
20270 GOLDENROD LANE
GERMANTOWN, MARYLAND 20876
- --------------------------------------------------------------------------------
(Name and address of agent for service)
Copy to:
STEVEN M. KAUFMAN, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 637-5736
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================= ========================= ========================= =========================== =========================
Proposed Proposed
Title of securities Amount to be registered maximum offering price maximum aggregate Amount of
to be registered per share (1) offering price (1) registration fee (1)
- ------------------------- ------------------------- ------------------------- --------------------------- -------------------------
<S> <C> <C> <C> <C>
COMMON STOCK,
PAR VALUE $.01 125,000(2) $1.03 $128,907 $36
PER SHARE
========================= ========================= ========================= =========================== =========================
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for purposes of calculating the
amount of the registration fee, based on the average of the high and low prices
per share of Microlog Corporation common stock, par value $.01 per share, on
December 11, 1998, as reported on The Nasdaq National Market.
(2) As permitted by Rule 429 promulgated under the Securities Act of 1933, as
amended, the prospectus related to this Registration Statement also covers
125,000 shares registered under Registration No. 333-2612 on Form S-8; filed
with the Securities and Exchange Commission on March 21, 1996. The registration
fee for such shares has previously been paid.
<PAGE>
INCORPORATION BY REFERENCE
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statement filed by Microlog Corporation (the "Company") under
Registration Number 333-2612 with respect to securities offered pursuant to the
Company's 1989 Non-Employee Director Non-Qualified Stock Option Plan, as amended
and restated (the "Plan"), are hereby incorporated by reference herein, and the
opinions and consents listed below are annexed hereto:
Exhibit
Number Description
------ -----------
4.1 Microlog Corporation 1989 Non-Employee Director Non-Qualified
Stock Option Plan, as amended and restated.
4.2 Amended and Restated Articles of Incorporation of Registrant, as
amended (incorporated by reference to an Exhibit to Registration
Statement on Form S-1 (File No. 33-31710)).
4.3. Bylaws of the Registrant, as amended (incorporated by reference
to an Exhibit to Registration Statement on Form S-1 (File No.
33-31710)).
4.4 Form of Common Stock Certificate (incorporated by reference to
an Exhibit to Registration Statement on Form S-1 (File No.
33-31710)).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
securities being registered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in its opinion filed
as Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature pages).
99.1 Article VII of the Bylaws of Microlog Corporation (incorporated
by reference to Exhibit 99.1 to Registration Statement on Form
S-8 (File No. 333-07981)).
99.2 Sections 13.1-692.1, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and
13.1-704 of the Virginia Stock Corporation Act.
-2-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Germantown, State of Maryland, on the 17th day of
November, 1998.
MICROLOG CORPORATION
By:/s/ Richard A. Thompson
--------------------------------------
Richard A. Thompson
President, Chief Executive Officer and
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard A. Thompson, Steven R. Delmar and Joe J.
Lynn, jointly and severally, each in his own capacity, as true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys-in-fact, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Richard A. Thompson President, Chief Executive Officer and November 17, 1998
- ----------------------------------- Director
Richard A. Thompson
/s/ Steven R. Delmar Executive Vice President and Chief November 18, 1998
- ----------------------------------- Financial Officer (Principal Accounting
Steven R. Delmar Officer)
/s/ Joe J. Lynn Director November 18, 1998
- -----------------------------------
Joe J. Lynn
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ David M. Gische Director November 17, 1998
- -----------------------------------
David M. Gische
/s/ Robert E. Gray, Jr. Director November 17, 1998
- -----------------------------------
Robert E. Gray, Jr.
/s/ David B. Levi Director November 17, 1998
- -----------------------------------
David B. Levi
</TABLE>
-4-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
------ ----------- ----
<S> <C> <C>
4.1 Microlog Corporation 1989 Non-Employee Director Non-Qualified Stock
Option Plan, as amended and restated.
4.2 Amended and Restated Articles of Incorporation of Registrant, as amended *
(incorporated by reference to an Exhibit to Registration Statement on
Form S-1 (File No. 33-31710)).
4.3 Bylaws of the Registrant, as amended (incorporated by reference to an *
Exhibit to Registration Statement on Form S-1 (File No. 33-31710)).
4.4 Form of Common Stock Certificate (incorporated by reference to an *
Exhibit to Registration Statement on Form S-1 (File No. 33-31710)).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
securities being registered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as
Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature pages).
99.1 Article VII of the Bylaws of Microlog Corporation (incorporated by *
reference to Exhibit 99.1 to Registration Statement on Form S-8 (File
No. 333-07981)).
99.2 Sections 13.1-692, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and 13.1-704
of the Virginia Stock Corporation Act.
</TABLE>
*incorporated by reference
EXHIBIT 4.1
MICROLOG CORPORATION
1989 NON-EMPLOYEE DIRECTOR NON-QUALIFIED STOCK OPTION PLAN
(AS AMENDED AND RESTATED)
Microlog Corporation (the "Corporation") sets forth herein the terms of
this 1989 Non-Employee Director Non-Qualified Stock Option Plan (the "Plan") as
follows:
1. PURPOSE
The Plan is intended to advance the interests of the Company by
providing each member serving on the Board of Directors of the Company who is
not, and has not within the past three years been, an officer or other salaried
employee of the Company or any subsidiary (a "Non-Employee Director") with an
opportunity to acquire or increase a proprietary interest in the Company, which
thereby will create a stronger incentive to expend maximum effort for the growth
and success of the Company and its subsidiaries, and will encourage such
Non-Employee Directors to remain in the service of the Company or that of one or
more of its subsidiaries. The stock options granted under the Plan (an "Option")
are not intended to be "incentive stock options" within the meaning of Section
422 of the Internal Revenue Code of 1986 (or the corresponding provision of any
subsequently enacted tax statute).
2. STOCK
The stock that may be issued pursuant to Options granted under the
Plan shall be shares of Common Stock, par value $.01 per share, of the Company
(the "Stock"), which shares may be treasury shares or authorized but unissued
shares. The number of shares of Stock that may be issued pursuant to Options
granted under the Plan shall not exceed in the aggregate 250,000 shares, which
number of shares is subject to adjustment as hereinafter provided in Section 14
below. If any Option expires, terminates, or is terminated for any reason prior
to exercise in full, the shares of Stock that were subject to the unexercised
portion of such Option shall be available for future Options granted under the
Plan.
3. GRANT OF OPTIONS
(a) Grant on Effective Date. On the effective date of this Plan as
provided in Section 5 below, each Non-Employee Director then serving on the
Board of Directors of the Company shall be granted an Option to purchase 5,000
shares of Stock at the price and upon the other terms and conditions specified
in the Plan. Thereafter, subject to Section 3(c) and to the availability of
shares issued under Section 2 of the Plan, an Option to purchase 10,000 shares
of Stock, at the price and upon the other terms and conditions specified in the
Plan, shall be granted under the Plan to each Non-Employee Director of the
Company upon the initial election of such Non-Employee Director to the Board.
(b) Annual Grants. Subject to Section 3(c) and to the availability of
shares issued under Section 2 of the Plan, in accordance with shareholder
approval in March 1996 of an amendment to this Plan adopted by the Board of
Directors of the Company on December 20, 1995, on the third Wednesday in
December of each year, commencing on December 20, 1995, each of the Non-Employee
Directors then serving on the Board of Directors of the Company shall be granted
an Option to purchase 3,000 shares of Stock at the price and upon the other
terms and conditions specified in this Plan, except that, subject to approval
not later than December 14, 1998, by the
<PAGE>
affirmative vote of shareholders who hold at least a majority of the outstanding
shares of stock of the Company entitled to vote thereon and who vote in person
or by proxy at a duly constituted shareholders' meeting, of an amendment to the
Plan adopted by the Board of Directors of the Company on December 15, 1997,
commencing on December 15, 1997, each such Option shall be for 4,000 shares of
Stock, subject to adjustment under Section 14 hereof.
(c) Excluded Persons. Notwithstanding anything to the contrary
contained in Section 3 of the Plan, no Non-Employee Director designated by Whale
Securities Corp. pursuant to the terms of the Underwriting Agreement dated as of
May 14, 1986 between Whale Securities Corp. and the Company shall be granted any
Options pursuant to this Plan.
(d) Special Grant. An option to purchase 10,000 shares of Stock, at
the price and upon the other terms and conditions specified in the Plan, is
hereby granted under the Plan effective December 22, 1992 to each Non-Employee
Director then serving on the Board of Directors of the Company at the price and
upon the other terms and conditions specified in the Plan, subject to Section
3(c) and to the availability of shares to be issued under Section 2 of the Plan,
and subject to approval of this Section 3(d) on or before April 30, 1993 by an
affirmative vote of shareholders who hold at least a majority of the outstanding
shares of stock of the Company entitled to vote thereon, in person or by proxy,
at a duly called meeting of the shareholders; provided, however, that upon
approval of this Section 3(d) by the shareholders of the Company as set forth
above, all Options granted under this Section 3(d) shall be fully effective as
if the shareholders of the Company had approved this Section 3(d) on December
22, 1992.
4. OPTION PRICE
The purchase price of each share of Stock subject to an Option (the
"Option Price") shall be the greater of par value or one hundred percent (100%)
of the fair market value of a share of Stock on the date the Option is granted.
In the event that the Stock is listed on an established national or regional
stock exchange, is admitted to quotation on the National Association of
Securities Dealers Automated Quotation system, or is publicly traded in an
established securities market, the fair market value shall be deemed to the
closing price of the Stock on such exchange or system or in such market (the
highest such closing price if there is more than one such exchange or market) on
the trading date immediately before the Option is granted (or, if there is no
such closing price, the mean between the highest bid and lowest asked prices or
between the high and low prices on such date), or, if no sale of the Stock has
been made on such day, on the immediately preceding day on which any such sale
shall have been made.
5. EFFECTIVE DATE AND TERM OF THE PLAN
(a) Effective Date. This Plan shall be effective as of the date this
Plan is adopted by the Board of Directors of the Company, subject to approval of
the Plan before or within one year after such effective date by an affirmative
vote of shareholders who hold at least a majority of the outstanding shares of
stock of the Company entitled to vote thereon, in person or by proxy, at a duly
called meeting of the shareholders; provided, however, that upon approval of the
Plan by the shareholders of the Company as set forth above, all Options granted
under the Plan on or after the effective date shall be fully effective as if the
shareholders of the Company had approved the Plan on the effective date. If the
shareholders fail to approve the Plan before or within one year of such
effective date, any options granted hereunder shall be null and void and of no
effect.
(b) Term. This Plan shall terminate on April 30, 2006.
6. OPTION AGREEMENTS
<PAGE>
All Options granted pursuant to the Plan shall be evidenced by written
agreements ("Option Agreements"), to be executed by the Company and by the
Optionee, substantially in the form attached as Exhibit A to this Plan, with
such changes as the officer or officers executing such Option Agreements may
determine to be necessary or advisable (such determination to be conclusively
evidenced by the execution thereof by such officer or officers).
7. TERM AND EXERCISE OF OPTIONS
(a) Term. Each Option granted under the Plan shall terminate and all
rights to purchase shares thereunder shall cease upon the expiration of ten (10)
years from the date such Option is granted.
(b) Option Period and Limitations on Exercise. Each Option granted
under the Plan shall be exercisable, in whole or in part, at any time and from
time to time, over a period commencing on or after the date of grant and ending
upon the expiration of the Option, except that Options granted on or after
December 15, 1997 shall be exercisable to the extent of 3,000 shares only until
such time as the amendment to the Plan adopted by the Board of Directors of the
Company on December 15, 1997 has been approved by shareholders in accordance
with Section 13 hereof. If an Option is exercised prior to the date that is six
months from the later of (i) the date of grant of the Option or (ii) the date of
shareholder approval of the amendment to the Plan adopted on December 15, 1997
(to the extent such Option was granted subject to such approval) and the
individual exercising the Option is a reporting person under Section 16(a) of
the Exchange Act, then such certificate or certificates shall bear a legend
restricting the transfer of the Stock covered thereby until the expiration of
six months from the date specified in clause (i) above or the date specified in
clause (ii) above, whichever is applicable to such shares of Stock.
(c) Method of Exercise. An Option that is exercisable hereunder may be
exercised by delivery to the Company on any business day, at its principal
office, addressed to the attention of the Secretary of the Company, of written
notice of exercise, which notice shall specify the number of shares with respect
to which the Option is being exercised, and except as provided below, shall be
accompanied by payment in full of the Option Price of the shares for which the
Option is being exercised in cash. The minimum number of shares of Stock with
respect to which an Option may be exercised, in whole or in part, at any time
shall be the lesser of 100 shares or the maximum number of shares available for
purchase under the Option at the time of exercise. Except as provided below,
payment in full of the Option Price of the shares for which the Option is being
exercised shall accompany the written notice of exercise of the Option and shall
be made (i) in cash or in cash equivalents; (ii) subject to approval not later
than December 19, 1996, by the affirmative vote of shareholders who hold at
least a majority of the outstanding shares of stock of the Company entitled to
vote thereon and who vote in person or by proxy at a duly constituted
shareholders' meeting, of the amendment to the Plan adopted by the Board of
Directors of the Company on December 20, 1995, through the tender to the Company
of shares of Stock, which shares shall be valued, for purposes of determining
the extent to which the Option Price has been paid thereby, at their fair market
value (determined in the manner described in Section 4 above) on the date of
exercise; or (iii) subject to such approval, by a combination of the methods
described in (i) and (ii); provided, however, that the Board may in its
discretion impose and set forth in the Option Agreement such limitations or
prohibitions on the use of shares of Stock to exercise Options as it determines
to be necessary or appropriate under applicable securities or other laws. If
shares of Stock that are acquired by the Optionee through exercise of an Option
or an option issued under another stock option plan maintained by the Company
are surrendered in payment of the Option Price, the Stock surrendered in payment
must have been (i) held by the Optionee for more than six months at the time of
surrender, or (ii) acquired under an Option granted not less than six months
prior to the time of surrender. Subject to approval not later than December 19,
1996, by the affirmative vote of shareholders who hold at least a majority of
the outstanding shares of stock of the Company entitled to vote thereon and who
vote in person or by proxy at a duly constituted
<PAGE>
shareholders' meeting, of the amendment to the Plan adopted by the Board of
Directors of the Company on December 20, 1995, payment in full of the Option
Price need not accompany the written notice of exercise provided the notice of
exercise directs that the Stock certificate or certificates for the shares for
which the Option is exercised be delivered to a licensed broker acceptable to
the Company as the agent for the individual exercising the Option and, at the
time such Stock certificate or certificates are delivered, the broker tenders to
the Company cash (or cash equivalents acceptable to the Company) equal to the
Option Price for the shares of Stock purchased pursuant to the exercise of the
Option plus the amount (if any) of federal and other taxes which the Company
may, in its judgment, be required to withhold with respect to the exercise of
the Option. An attempt to exercise any Option granted hereunder other than as
set forth above shall be invalid and of no force and effect. Promptly after the
exercise of an Option and the payment in full of the Option Price of the shares
of Stock covered thereby, the individual exercising the Option shall be entitled
to the issuance of a Stock certificate or certificates evidencing his ownership
of such shares. An individual holding or exercising an Option shall have none of
the rights of a shareholder until the shares of Stock covered thereby are fully
paid and issued to him and, except as provided in Section 14 below, no
adjustment shall be made for dividends or other rights for which the record date
is prior to the date of such issuance.
8. TRANSFERABILITY OF OPTIONS
During the lifetime of an Optionee to whom an Option is granted, only
such Optionee (or, in the event of legal incapacity or incompetency, the
Optionee's guardian or legal representative) may exercise the Option. No Option
shall be assignable or transferable by the Optionee to whom it is granted, other
than by will or the laws of descent and distribution.
9. TERMINATION OF SERVICE
Subject to the provisions of Section 10 of the Plan, upon the
termination of the service of an optionee with the Company or a subsidiary,
Options granted to such optionee pursuant to this Plan shall continue in effect
for the remainder of their respective terms, and shall not terminate.
10. RIGHTS IN THE EVENT OF DEATH
If an Optionee dies, the executors or administrators or legatees or
distributees of such Optionee's estate shall have the right, at any time prior
to termination of the Option as provided in Section 7(a) above, to exercise any
Option held by such Optionee at the date of such Optionee's death.
11. USE OF PROCEEDS
The proceeds received by the Company from the sale of Stock pursuant
to Options granted under the Plan shall constitute general funds of the Company.
12. REQUIREMENTS OF LAW
The Company shall not be required to sell or issue any shares of Stock
under any Option if the sale or issuance of such shares would constitute a
violation by the individual exercising the Option or the Company of any
provisions of any law or regulation of any governmental authority, including
without limitation any federal or state securities laws or regulations.
Specifically in connection with the Securities Act of 1933 (as now in effect or
as hereafter amended), upon exercise of any Option, unless a registration
statement under such Act is in effect with respect to the shares of Stock
covered by such Option, the Company shall not be required to sell or issue such
shares unless the holder of such Option may acquire such shares pursuant to an
exemption from
<PAGE>
registration under such Act. The Company may, but shall in no event be obligated
to, register any securities covered hereby pursuant to the Securities Act of
1933 (as now in effect or as hereafter amended). The Company shall not be
obligated to take any affirmative action in order to cause the exercise of an
Option or the issuance of shares pursuant thereto to comply with any law or
regulation of any governmental authority. As to any jurisdiction that expressly
imposes the requirement that an Option shall not be exercisable unless and until
the shares of Stock covered by such Option are registered or are subject to an
available exemption from registration, the exercise of such Option (under
circumstances in which the laws of such jurisdiction apply) shall be deemed
conditioned upon the effectiveness of such registration or the availability of
such an exemption. The Plan is intended to comply with Rule 16b-3 of the
Securities Exchange Commission under the Securities Exchange Act of 1934. Any
provision of the Plan inconsistent with Rule 16b-3 will be inoperative but will
not affect the validity of the Plan.
13. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend or
terminate the Plan as to any shares of Stock as to which Options have not been
granted; provided, however, that no amendment by the Board shall, without
approval by the affirmative vote of shareholders who hold at least a majority of
outstanding shares of stock of the Company entitled to vote thereon and who vote
in person or by proxy at a duly constituted shareholders' meeting, (a) increase
the maximum number of shares of Stock in the aggregate that may be sold pursuant
to Options granted under the Plan (except as permitted under Section 14 hereof),
(b) extend the term of the Plan, or (c) materially change the eligibility
requirements for participation in the Plan or the benefits that may accrue to
eligible participants in the Plan. Except as permitted under Section 14 hereof,
no amendment, suspension or termination of the Plan shall, without the consent
of the holder of the Option, alter or impair rights or obligations under any
Option theretofore granted under the Plan.
14. EFFECT OF CHANGES IN CAPITALIZATION
(a) Changes in Stock. If the outstanding shares of Stock are increased
or decreased or changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of any recapitalization,
reclassification, stock split-up, combination of shares, exchange of shares,
stock dividend or other distribution payable in capital stock, or other increase
or decrease in such shares effected without receipt of consideration by the
Company, occurring after the effective date of the Plan, the number and kinds of
shares for the purchase of which Options may be granted under the Plan shall be
adjusted proportionately and accordingly by the Company. In addition, the number
and kind of shares for which Options are outstanding shall be adjusted
proportionately and accordingly so that the proportionate interest of the holder
of the Option immediately following such event shall, to the extent practicable,
be the same as immediately prior to such event. Any such adjustment in
outstanding Options shall not change the aggregate Option Price payable with
respect to shares subject to the unexercised portion of the Option outstanding
but shall include a corresponding proportionate adjustment in the Option Price
per share.
(b) Reorganization in Which the Company Is the Surviving Corporation.
Subject to Subsection (c) hereof, if the Company shall be the surviving
corporation in any reorganization, merger, or consolidation of the Company with
one or more other corporations, any Option theretofore granted pursuant to the
Plan shall pertain to and apply to the securities to which a holder of the
number of shares of Stock subject to such Option would have been entitled
immediately following such reorganization, merger, or consolidation, with a
corresponding proportionate adjustment of the Option Price per share so that the
aggregate Option Price thereafter shall be the same as the aggregate Option
Price of the shares remaining subject to the Option immediately prior to such
reorganization, merger, or consolidation.
<PAGE>
(c) Reorganization in Which the Company Is Not the Surviving
Corporation or Sale of Assets or Stock. Upon the dissolution or liquidation of
the Company, or upon a merger, consolidation or reorganization of the Company
with one or more other corporations in which the Company is not the surviving
corporation, or upon a sale of all or substantially all of the assets of the
Company to another corporation, or upon any transaction (including, without
limitation, a merger or reorganization in which the Company is the surviving
corporation) approved by the Board which results in any person or entity owning
eighty percent (80%) or more of the combined voting power of all classes of
stock of the Company, the Plan and all Options outstanding hereunder shall
terminate, except to the extent provision is made in writing in connection with
such transaction for the continuation of the Plan and/or the assumption of the
Options theretofore granted, or for the substitution for such Options of new
options covering the stock of a successor corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares and
exercise prices, in which event the Plan and Options theretofore granted shall
continue in the manner and under the terms so provided. The Board shall send
written notice of an event that will result in such a termination to all
individuals who hold Options not later than the time at which the Company gives
notice thereof to its shareholders (provided, however, that the options shall
terminate only the consummation or occurrence of such event).
(d) Fractional Shares. No fractional shares of Stock or units of other
securities shall be issued pursuant to any such adjustment, and any fractions
resulting from any such adjustment shall be eliminated in each case by rounding
downward to the nearest whole share or unit.
(e) No Limitations on Company. The grant of an Option pursuant to the
Plan shall not affect or limit in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure or to merge, consolidate, dissolve or liquidate, or to
sell or transfer all or any part of its business or assets.
15. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or Option Agreement
entered into pursuant to the Plan shall be construed to confer upon any
individual the right to remain in the service of the Company or any subsidiary,
or to interfere in any way with the right and authority of the Company or any
subsidiary either to increase or decrease the compensation of any individual at
any time, or to terminate any relationship between any individual and the
Company or any subsidiary.
16. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the Plan to the
shareholders of the Company for approval shall be construed as creating any
limitations upon the right and authority of the Board to adopt such other
incentive compensation arrangements (which arrangements may be applicable either
generally to a class or classes of individuals or specifically to a particular
individual or individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan.
* * *
<PAGE>
This Plan was duly adopted and approved by the Board of Directors of the
Company by resolution at a meeting held on June 10, 1989, subject to shareholder
approval. This Plan was duly amended by the Board of Directors, subject to
shareholder approval, by resolutions at meetings held on December 22, 1992,
January 22, 1993, December 20, 1995, December 15, 1997 and January 28, 1998.
/s/ Arlene A. France
--------------------------------------
Arlene A. France,
Secretary of the Corporation
This Plan was duly approved by the shareholders of the Company at a meeting
of the shareholders held on the 24th day of February, 1990. Amendments to the
Plan were duly approved by the shareholders of the Company on March 13, 1993,
March 26, 1996 and March 31, 1998.
/s/ Arlene A. France
--------------------------------------
Arlene A. France,
Secretary of the Corporation
EXHIBIT 5.1
December 16, 1998
Board of Directors
Microlog Corporation
20270 Goldenrod Lane
Germantown, Maryland 20874
Dear Gentlemen:
This firm has acted as special counsel to Microlog Corporation (the
"Company"), a Virginia corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of 125,000 shares (the "Shares") of
common stock, par value $.01 per share of Microlog Corporation ("Common Stock"),
issuable upon the exercise of options granted under the Microlog Corporation
1989 Non-Employee Director Non-Qualified Stock Option Plan, as amended and
restated (the "Plan"). This letter is furnished to you pursuant to the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5),
in connection with such registration.
For purposes of this opinion, we have examined copies of the following
documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plan, as certified on December 16, 1998, by the
Secretary of the Company as then being complete, accurate and in
effect.
3. The Amended and Restated Articles of Incorporation of the Company, as
amended, as certified on December 7, 1998 by the Commonwealth of
Virginia State Corporation Commission and on December 16, 1998 by
the Corporate Secretary of the Company as then being complete,
accurate and in effect.
4. The By-laws of the Company, as amended, as certified on December 16,
1998 by the Secretary of the Company as then being complete, accurate
and in effect.
5. Resolutions of the Board of Directors of the Company adopted (i) at
meetings held on June 10, 1989, Decem ber 22, 1992, January 22, 1993,
December 20, 1995, March 14, 1996, December 15, 1997 and January 28,
1998, and (ii) by unanimous written consent dated November 18, 1998,
all of the foregoing resolutions as certified by the Secretary of the
Company on December 16, 1998 as then being complete, accurate and in
effect.
6. Resolutions of the shareholders of the Company adopted at meetings
held on February 24, 1990, March 13, 1993, March 26, 1996 and March
31, 1998, as certified by the Secretary of the Company on December 16,
1998 as then being complete, accurate and in effect.
We have not, except as specifically mentioned above, made any independent
review or investigation of the organization, existence, good standing, assets,
business or affairs of the Company or its subsidiaries, or of any other matters.
In our examination of the aforesaid
<PAGE>
certificates, records, and documents, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, and the authenticity and conformity with
the original documents of all documents submitted to us as certified,
telecopied, photostatic, or reproduced copies. We have assumed the authenticity
and accuracy of the foregoing certifications of corporate officers, on which we
are relying, and have made no independent investigations thereof.
We have not, except as specifically identified herein, been retained or
engaged to perform, nor have we performed, any independent review or
investigation of any statutes, ordinances, laws, regulations, agreements,
contracts, instruments, or corporate records to which the Company or any of its
property may be a party or may be subject. This opinion is given in the context
of the foregoing.
This opinion is based as to matters of law solely on the Stock Corporation
Act of the Commonwealth of Virginia, as amended, and we express no opinion as to
any other laws, statutes, regulations, or ordinances, including without
limitation any federal or state tax or securities laws or regulations.
Based upon, subject to, and limited by the foregoing, we are of the opinion
that the Shares, when issued and delivered in the manner and on the terms
contemplated in the Registration Statement and the Plan (with the Company having
received the consideration therefor, the form of which is in accordance with
applicable law), will be validly issued, fully paid and non-assessable.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion. This opinion has been prepared
solely for your use in connection with the filing of the Registration Statement
on the date of this letter, and should not be quoted in whole or in part or
otherwise be referred to, nor be filed with or furnished to any governmental
agency or other person or entity, without the prior written consent of this
form.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. Nothing herein shall be construed to cause us to be
considered "experts" within the meaning of Section 11 of the Securities Act of
1933, as amended, or the rules thereunder.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 18, 1997, which appears on
page 27 of the 1997 Annual Report to Shareholders of Microlog Corporation, which
is incorporated by reference in Microlog Corporation's Annual Report on Form
10-K for the year ended October 31, 1997. We also consent to the incorporation
by reference of our report on the Financial Statement Schedule, which appears on
page F-2 of such Annual Report on Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------
PRICEWATERHOUSECOOPERS LLP
McLean, Virginia
December 15, 1998
EXHIBIT 99.2
Sections 13.1-692, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and 13.1-704 of
the Virginia Stock Corporation Act, which governs the Registrant. Such sections
provide as follows:
13.1-692 LIABILITY FOR UNLAWFUL DISTRIBUTIONS.-A. Unless he complies with
the applicable standards of conduct described in ss. 13.1-690, a director who
votes for or assents to a distribution made iN violation of this chapter or the
articles of incorporation is personally liable to the corporation and its
creditors for the amount of the distribution that exceeds what could have been
distributed without violating this chapter or the articles of incorporation.
B. A director held liable for an unlawful distribution under subsection A
of this section is entitled to contribution:
1. From every other director who voted for or assented to the distribution
without complying with the applicable standards of conduct described in ss.
13.1-690; and
2. From the shareholders who received the unlawful distribution in
proportion to the amounts of such unlawful distribution received by them
respectively.
C. No suit shall be brought against any director for any liability imposed
by this section except within two years after the right of action shall accrue.
13.1-697 AUTHORITY TO INDEMNIFY.-A. Except as provided in subsection D of
this section, a corporation may indemnify an individual made a party to a
proceeding because he is or was a director against liability incurred in the
proceeding if:
1. He conducted himself in good faith; and
2. He believed:
a. In the case of conduct in his official capacity with the corporation,
that his conduct was in its best interests; and
b. In all other cases, that his conduct was at least not opposed to its
best interests; and
3. In the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful.
B. A director's conduct with respect to an employee benefit plan for a
purpose he believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subdivision 2b of subsection A of this section.
C. The termination of a proceeding by judgment, order, settlement or
conviction is not, of itself, determinative that the director did not meet the
standard of conduct described in this section.
D. A corporation may not indemnify a director under this section:
1. In connection with a proceeding by or in the right of the corporation in
which the director was adjudged liable to the corporation; or
2. In connection with any other proceeding charging improper personal
benefit to him, whether or not involving action in his official capacity, in
which he was adjudged liable on the basis that personal benefit was improperly
received by him.
E. Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
13.1-698 MANDATORY INDEMNIFICATION.-Unless limited by its articles of
incorporation, a corporation shall indemnify a director who entirely prevails in
the defense of any proceeding to which he was a party because he is or was a
director of the corporation against reasonable expenses incurred by him in
connection with the proceeding.
<PAGE>
13.1-702 INDEMNIFICATION OF OFFICERS, EMPLOYEES AND AGENTS.- Unless limited
by a corporation's articles of incorporation,
1. An officer of the corporation is entitled to mandatory indemnification
under ss. 13.1-698, anD is entitled to apply for court-ordered indemnification
under ss. 13.1-700.1, in each case to the same extenT as a director; and
2. The corporation may indemnify and advance expenses under this article to
an officer, employee, or agent of the corporation to the same extent as to a
director.
13.1-703 INSURANCE.-A corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer, employee, or agent of
the corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee, or agent,
whether or not the corporation would have power to indemnify him against the
same liability under ss. 13.1-697 or ss. 13.1-698.
13.1-704 APPLICATION OF ARTICLE.-A. Unless the articles of incorporation or
bylaws expressly provide otherwise, any authorization of indemnification in the
articles of incorporation or bylaws shall not be deemed to prevent the
corporation from providing the indemnity permitted or mandated by this article.
B. Any corporation shall have power to make any further indemnity,
including indemnity with respect to a proceeding by or in the right of the
corporation, and to make additional provision for advances and reimbursement of
expenses, to any director, officer, employee or agent that may be authorized by
the articles of incorporation or any bylaw made by the shareholders or any
resolution adopted, before or after the event, by the shareholders, except an
indemnity against (i) his willful misconduct, or (ii) a knowing violation of the
criminal law. Unless the articles of incorporation, or any such bylaw or
resolution expressly provide otherwise, any determination as to the right to any
further indemnity shall be made in accordance with ss. 13.1-701B. Each such
indemnity may continue as to a person who has ceased tO have the capacity
referred to above and may inure to the benefit of the heirs, executors and
administrators of such a person.
C. No right provided to any person pursuant to this section may be reduced
or eliminated by any amendment of the articles of incorporation or bylaws with
respect to any act or omission occurring before such amendment.
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