SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. 1)
Filed by the Registrant [X] Filed by a party other than the Registrant [ ] Check
the appropriate box:
[ ] Preliminary Proxy Statement [ ] Confidential, For Use of the
Commission Only
(as permitted by Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
SPECTRIAN CORPORATION
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(Name of Registrant as Specified in its Charter)
SPECTRIAN CORPORATION
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(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
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[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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SPECTRIAN CORPORATION
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NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD JULY 31, 1997
TO THE SHAREHOLDERS:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of Spectrian
Corporation, a California corporation (the "Company"), will be held on Thursday,
July 31, 1997, at 10:00 a.m. local time, at 160 Gibraltar Court, Sunnyvale,
California 94089, for the following purposes:
1. To elect five (5) directors to serve for the ensuing year and until
their successors are duly elected and qualified.
2. To approve the reincorporation of the Company as a Delaware corporation
by means of a merger of the Company with and into a wholly owned Delaware
subsidiary of the Company.
3. To approve an amendment to the 1994 Employee Stock Purchase Plan to
increase the number of shares of Common Stock reserved for issuance
thereunder by 200,000 shares.
4. To approve amendments to the 1994 Director Option Plan to (i) increase
the number of shares of Common Stock reserved for issuance thereunder by
60,000 shares, (ii) increase the size of the annual, nondiscretionary grants
thereunder to 5,000 shares per annum and (iii) decrease the rate at which the
annual grants vest from 8.34% per month to 2.08% per month.
5. To approve an amendment to the 1992 Stock Plan to increase the number
of shares of Common Stock reserved for issuance thereunder by 350,000 shares.
6. To ratify the appointment of KPMG Peat Marwick LLP as independent
accountants of the Company for the fiscal year ending March 31, 1998.
7. To transact such other business as may properly come before the Annual
Meeting, including any motion to adjourn to a later date to permit further
solicitation of proxies if necessary, or before any adjournments thereof.
The foregoing items of business are more fully described in the Proxy
Statement accompanying this Notice. Only shareholders of record at the close of
business on June 5, 1997 are entitled to notice of and to vote at the meeting.
All shareholders are cordially invited to attend the meeting in person.
However, to assure your representation at the meeting, you are urged to mark,
sign, date and return the enclosed Proxy as promptly as possible in the
postage-prepaid envelope enclosed for that purpose. Any shareholder attending
the meeting may vote in person even if he or she has returned a Proxy.
Sincerely,
Bruce R. Wright
Secretary
Sunnyvale, California
June 26, 1997
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YOUR VOTE IS IMPORTANT.
IN ORDER TO ASSURE YOUR REPRESENTATION AT THE MEETING, YOU ARE
REQUESTED TO COMPLETE, SIGN AND DATE THE ENCLOSED PROXY AS
PROMPTLY AS POSSIBLE AND RETURN IT IN THE ENCLOSED ENVELOPE.
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<PAGE>
SPECTRIAN CORPORATION
------------------
PROXY STATEMENT FOR 1997
ANNUAL MEETING OF SHAREHOLDERS
INFORMATION CONCERNING SOLICITATION AND VOTING
GENERAL
The enclosed Proxy is solicited on behalf of the Board of Directors (the
"Board") of SPECTRIAN CORPORATION, a California corporation (the "Company" or
"Spectrian"), for use at the Annual Meeting of Shareholders (the "Annual
Meeting") to be held Thursday, July 31, 1997, at 10:00 a.m. local time, or at
any adjournment thereof, for the purposes set forth herein and in the
accompanying Notice of Annual Meeting of Shareholders. The Annual Meeting will
be held at 160 Gibraltar Court, Sunnyvale, California 94089. The Company's
principal executive offices are located at 350 W. Java Drive, Sunnyvale,
California 94089, and its telephone number at that location is (408) 745-5400.
These proxy solicitation materials were first mailed on or about June 26,
1997 to all shareholders entitled to vote at the meeting.
RECORD DATE; OUTSTANDING SHARES
Shareholders of record at the close of business on June 5, 1997 (the "Record
Date") are entitled to notice of and to vote at the meeting. The Company has one
series of Common Shares outstanding, designated Common Stock, no par value. As
of June 5, 1997, 8,307,161 shares of the Company's Common Stock were issued and
outstanding and held of record by 313 shareholders.
REVOCABILITY OF PROXIES
Any proxy given pursuant to this solicitation may be revoked by the person
giving it at any time before its use by (a) delivering to the Secretary of the
Company a written notice of revocation or a duly executed proxy bearing a later
date or (b) attending the meeting and voting in person.
VOTING AND SOLICITATION
Each shareholder is entitled to one vote for each share of Common Stock held
by the shareholder on the Record Date. A quorum comprising the holders of a
majority of the outstanding shares of Common Stock on the Record Date must be
present or represented for the transaction of business at the Annual Meeting.
Abstentions and broker nonvotes will be counted in establishing the quorum.
Each shareholder is entitled to one vote for each share held. Every
shareholder voting for the election of directors (Proposal One) may cumulate
such shareholder's votes and give one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of shares that such
shareholder is entitled to vote, or distribute such shareholder's votes on the
same principle among as many candidates as the shareholder may select, provided
that votes cannot be cast for more than five candidates. However, no shareholder
shall be entitled to cumulate votes unless the candidate's name has been placed
in nomination prior to the voting and the shareholder, or any other shareholder,
has given notice at the meeting, prior to the voting, of the intention to
cumulate the shareholder's votes. On all other matters, each share of Common
Stock has one vote. A quorum comprising the holders of the majority of the
outstanding shares of Common Stock on the record date must be present or
represented for the transaction of business at the Annual Meeting. Abstentions
and broker non-votes will be counted in establishing the quorum.
This solicitation of proxies is made by the Company, and all related costs
will be borne by the Company. In addition, the Company may reimburse brokerage
firms and other persons representing beneficial owners of shares for their
expenses in forwarding solicitation material to such beneficial owners. Proxies
may also be solicited by certain of the Company's directors, officers and
regular employees,
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without additional compensation, personally or by telephone or telegram. The
Company has also retained Corporate Investor Communications, Inc. to assist in
the solicitation of proxies at a cost of approximately $5,000 plus reasonable
and customary reimbursement for expenses.
DEADLINE FOR RECEIPT OF SHAREHOLDER PROPOSALS
Proposals of shareholders of the Company that are intended to be presented by
such shareholders at the Company's 1998 Annual Meeting of Shareholders must be
received by the Company no later than April 15, 1998 in order that they may be
considered for inclusion in the proxy statement and form of proxy relating to
that meeting.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
<TABLE>
The following table sets forth certain information regarding the beneficial
ownership of Common Stock of the Company as of June 5, 1997 as to (i) each
person who is known by the Company to own beneficially more than 5% of the
outstanding shares of Common Stock, (ii) each director, (iii) each of the
executive officers named in the Summary Compensation Table below and (iv) all
directors and executive officers as a group.
<CAPTION>
COMMON
STOCK APPROXIMATE
FIVE PERCENT SHAREHOLDERS, BENEFICIALLY PERCENTAGE
DIRECTORS AND CERTAIN EXECUTIVE OFFICERS OWNED OWNED(1)
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<S> <C> <C>
Kopp Investment Advisors, Inc(2) ................................ 1,708,855 20.6%
6600 France Avenue South
Suite 672
Edina, MN 55433
Garrett A. Garrettson(3) ........................................ 69,956 *
James A. Cole(4) ................................................ 6,034 *
Eric A. Young(5) ................................................ 2,500 *
David S. Wisherd ................................................ 50 *
Stephen B. Greenspan(6) ......................................... 23,743 *
William Zucker .................................................. 619 *
Martin Cooper(7) ................................................ 16,875 *
Edward A. Supplee, Jr.(8) ....................................... 36,873 *
Joseph M. Veni(9) ............................................... 7,585 *
Gary R. Gianatasio .............................................. 792 *
Robert Wilson(10) ............................................... 2,500 *
All Directors and executive officers as a group (13 persons)(11) 177,542 2.1%
<FN>
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* Less than 1%
(1) Applicable percentage ownership is based on 8,307,161 shares of Common
Stock outstanding as of June 5, 1997 together with applicable options for
such shareholder. Beneficial ownership is determined in accordance with the
rules of the Securities and Exchange Commission (the "Commission"), and
includes voting and investment power with respect to shares. Shares of
Common Stock subject to options currently exercisable or exercisable within
60 days after June 5, 1997 are deemed outstanding for computing the
percentage ownership of the person holding such options, but are not deemed
outstanding for computing the percentage of any other person.
(2) Reflects ownership as reported on Schedule 13G/A dated March 10, 1997 with
the Commission by Kopp Investment Advisors, Inc. ("KIA"). Represents shares
beneficially owned by (i) KIA, a registered investment advisor, (ii) Kopp
Investment Advisors, Inc. Profit Sharing Plan ("Profit"), (iii) Kopp Family
Foundation ("Foundation"), (iv) LeRoy C. Kopp Individual Retirement Account
("IRA"), and (v) LeRoy C. Kopp individually and through his ownership of a
controlling interest in KIA, his position as sole trustee of Profit, his
control over Foundation and his IRA. KIA has sole voting power over 135,000
shares of the Company's Common Stock and shared dispositive power over
1,678,855 shares of the Company's Common Stock. Profit has sole voting and
dispositive power over 6,000 shares of the Company's Common Stock.
Foundation has sole voting and dispositive power over 10,000 shares of the
Company's Common Stock. IRA has sole voting and dispositive power over
30,000 shares of the Company's Common Stock. Mr. Kopp has sole voting power
and shared voting power over 201,000 and 10,000 shares, respectively, of
the Company's Common Stock and sole dispositive power and shared
dispositive power over 96,000 and 1,688,855 shares, respectively, of the
Company's Common Stock.
(3) Includes 66,956 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(4) Includes 2,500 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(5) Includes 2,500 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(6) Includes 23,743 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(7) Includes 16,875 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(8) Includes 30,000 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(9) Includes 7,585 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(10) Includes 2,500 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
(11) Includes 154,901 shares issuable pursuant to options exercisable within 60
days of June 5, 1997.
</FN>
</TABLE>
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PROPOSAL ONE
ELECTION OF DIRECTORS
NOMINEES
A board of five directors is to be elected at the Annual Meeting of
Shareholders. Unless otherwise instructed, the proxy holders will vote the
proxies received by them for the Company's five nominees named below, all of
whom are presently directors of the Company. In the event that any nominee of
the Company is unable or declines to serve as a director at the time of the
Annual Meeting of Shareholders, the proxies will be voted for any nominee who
shall be designated by the present Board of Directors to fill the vacancy. The
Company is not aware of any nominee who will be unable or will decline to serve
as a director. In the event that additional persons are nominated for election
as directors, the proxy holders intend to vote all proxies received by them in
such a manner (in accordance with cumulative voting) as will assure the election
of as many of the nominees listed below as possible, and, in such event, the
specific nominees to be voted for will be determined by the proxy holders. The
term of office for each person elected as a director will continue until the
next Annual Meeting of Shareholders or until a successor has been elected and
qualified. Should the Company's shareholders approve the proposed
reincorporation to Delaware (Proposal Two), the directors elected at the
Company's Annual Meeting will remain directors of the Company after the closing
of the proposed reincorporation and will serve until the next Annual Meeting of
Stockholders of the Company.
VOTE REQUIRED
If a quorum is present and voting, the five nominees receiving the highest
number of votes will be elected to the Board of Directors. Abstentions and
"broker non-votes" are not counted in the election of directors.
NOMINEES
The names of the nominees and certain information about them are set forth
below:
DIRECTOR
NAME OF NOMINEE AGE POSITION WITH THE COMPANY SINCE
- ---------------------- ----- -------------------------------------- ----------
Garrett A. Garrettson . 53 President, Chief Executive Officer and 1996
Director
James A. Cole(1) ...... 54 Director 1985
Martin Cooper(2) ...... 68 Director 1994
Robert C. Wilson(2) .. 77 Director 1995
Eric A. Young(1) ...... 41 Director 1991
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(1) Member of Compensation Committee.
(2) Member of Audit Committee.
There is no family relationship between any director or executive officer of
the Company.
Garrett A. Garrettson joined the Company in April 1996 as President, Chief
Executive Officer and director. Between March 1993 and March 1996 he was
President and Chief Executive Officer of Censtor Corporation, a company that
designs and sells technology related to magnetic recording heads for the disk
drive industry. From November 1986 to March 1993, he served as a Vice President
of the Imprimis Division of Control Data Corporation, a computer systems company
and subsequently with Seagate Technology, Inc., ("Seagate") a company that
designs and manufactures disk drives, when Seagate acquired the Imprimis
division in 1989. Prior to 1986, Mr. Garrettson held a variety of positions with
Hewlett Packard Company and served in the U.S. Navy. Mr. Garrettson also serves
as a director of Censtor Corporation and Benton Oil and Gas Company. He received
his B.S. and M.S. in Engineering and Physics and a Ph.D. in Mechanical
Engineering from Stanford University.
James A. Cole has been a director of the Company since June 1985. He has been
a General Partner of Spectra Enterprise Associates, a venture capital firm, and
a partner with New Enterprise Associates,
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a venture capital firm, since 1986. Prior to 1986, Mr. Cole spent twenty years
in various microwave integrated circuit companies, including Amplica Inc., where
he was a co-founder and served as Chief Operating Officer. Amplica became a
public company in 1981 and was acquired by Comsat Corporation in 1982. He
presently serves on the Board of Directors of Censtor Corp., a company that
designs and sells technology related to magnetic recording heads for the disk
drive industry, Vitesse Semiconductor Corp., a semiconductor manufacturer, and
Gigatronics Inc., a microwave instrument supplier.
Martin Cooper has been a director of the Company since January 1994. Mr.
Cooper has served as Chairman and Chief Executive of Array Comm, Incorporated, a
wireless technology manufacturer, since April 1992 and as Chairman of Dyna,
Incorporated, a consulting company, since 1986. From 1985 to December 1992, he
served as President of Cellular Pay Phone Incorporated, a cellular pay telephone
company. From 1982 to 1986, he was a co-founder, Chairman and Chief Executive
Officer of Cellular Business Systems, Inc., a management information company.
From 1954 to 1983, Mr. Cooper served in a variety of positions including
Corporate Vice President, Division Manager and Corporate Director of Research
and Development of Motorola. Mr. Cooper currently serves on the Board of
Directors of Conductus, Inc., a superconducting products company. He is a Fellow
of the IEEE and of the Radio Club of America and a recipient of the IEEE
Centennial medal. He serves on the Advisory Board of the International National
Electronics Consortium and serves on its Board of Directors. He received a B.S.
and an M.S. in Electrical Engineering from the Illinois Institute of Technology.
Robert C. Wilson has served as a director of the Company since October 1995.
Mr. Wilson has been Chairman of Wilson & Chambers, a venture capital and
consulting firm, since December 1982. Mr. Wilson served as President, Chief
Executive Officer and Chairman of the Board at Memorex Corporation from 1974
until 1980. From 1971 to 1974, Mr. Wilson served as President and Chief
Executive Officer of Collins Radio Company, a communications company. From 1969
to 1971, Mr. Wilson was employed by Rockwell International, a diversified
manufacturing company, first as President of Commercial Products and later as
Executive Vice President. He is currently Chairman of the Board of Carco
Electronics, a precision servo controlled systems manufacturer and is a member
of the Board of Directors of Gigatronics Inc., a microwave instrument supplier,
and of Resound Corporation, a hearing device manufacturer company. Mr. Wilson
received a B.S. in Engineering from the University of California at Berkeley.
Eric A. Young has been a director of the Company since January 1991. He is a
co-founder of Canaan Partners, a venture capital investment firm, and has served
as a General Partner of Canaan Partners since its inception in 1987. Prior to
such time, Mr. Young held various management positions with GE Venture Capital,
a venture capital investment firm and a subsidiary of General Electric Co. He
presently serves on the Board of Directors of Visigenic Software, Inc. and of
Integrated Packaging Assembly Corporation. He received a B.S. in Mechanical
Engineering at Cornell University and received an M.M. in Finance from
Northwestern University.
BOARD MEETINGS AND COMMITTEES
The Board of Directors of the Company held a total of seven meetings during
fiscal 1997. No director attended fewer than 75% of the meetings of the Board of
Directors and committees thereof, if any, upon which such director served. The
Board of Directors has an Audit Committee and a Compensation Committee. The
Board of Directors has no nominating committee or any committee performing such
functions.
The Audit Committee, which consisted of Messrs. Cooper and Wilson during
fiscal 1997, is responsible for overseeing actions taken by the Company's
independent auditors and reviews the Company's internal financial controls.
The Audit Committee met one time during fiscal 1997.
The Compensation Committee, which consisted of Messrs. Cole and Young during
fiscal 1997, met once during fiscal 1997. The duties of the Compensation
Committee include determining salaries, incentives and other forms of
compensation for directors, officers and other employees of the Company and
administering various incentive compensation and benefit plans.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee consists of Messrs. Cole and Young. Mr.
Garrettson, who is President and Chief Executive Officer of the Company, has
participated in all discussions and decisions regarding
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salaries and incentive compensation for all employees and consultants to the
Company, except that Mr. Garrettson was excluded from discussions regarding his
own salary and incentive compensation.
PROPOSAL TWO
REINCORPORATION IN DELAWARE
INTRODUCTION
The Board of Directors believes that the best interests of the Company and
its shareholders will be served by changing the state of incorporation of the
Company from California to Delaware (the "Reincorporation Proposal" or the
"Proposed Reincorporation"). As discussed below, the principal reasons for
reincorporation are the greater flexibility of Delaware corporate law, the
substantial body of case law interpreting Delaware corporate law and the
increased ability of the Company to attract and retain qualified directors. The
Company believes that its shareholders will benefit from the well established
principles of corporate governance that Delaware law affords. Although Delaware
law provides the opportunity for the Board of Directors to adopt various
mechanisms which may enhance the Board's ability to negotiate favorable terms
for the shareholders in the event of an unsolicited takeover attempt, the
proposed Delaware certificate of incorporation and bylaws are substantially
similar to those currently in effect in California. However, the Board of
Directors proposes in connection with the Reincorporation Proposal to include in
the Company's bylaws a provision that stockholders intending to nominate
candidates for election as directors or to propose items of business for
consideration at stockholder meetings must meet certain advance notice
requirements.
The Reincorporation Proposal is not being proposed in order to prevent an
unsolicited takeover attempt, nor is it in response to any present attempt known
to the Board of Directors to acquire control of the Company, obtain
representation on the Board of Directors or take significant action that affects
the Company. Shareholders are urged to read carefully the following sections of
this Proxy Statement, including the related exhibits, before voting on the
Reincorporation Proposal. Throughout the Proxy Statement, the term "Spectrian
California" refers to the existing California corporation and the term
"Spectrian Delaware" refers to the new proposed Delaware corporation, a
wholly-owned subsidiary of Spectrian California, which is the proposed successor
to Spectrian California.
The Reincorporation Proposal will be effected by merging Spectrian California
into Spectrian Delaware (the "Merger"). Upon completion of the Merger, Spectrian
California will cease to exist and Spectrian Delaware will continue to operate
the business of the Company under the name Spectrian Corporation. Pursuant to
the Agreement and Plan of Merger between Spectrian California and Spectrian
Delaware, a copy of which is attached hereto as Appendix A (the "Merger
Agreement"), each outstanding share of Spectrian California Common Stock, no par
value, will automatically be converted into one share of Spectrian Delaware
Common Stock, $.001 par value. IT IS NOT NECESSARY FOR SHAREHOLDERS TO EXCHANGE
THEIR EXISTING STOCK CERTIFICATES FOR STOCK CERTIFICATES OF SPECTRIAN DELAWARE.
Upon the date on which the Merger is effective (the "Effective Date"),
Spectrian Delaware will also assume and continue the outstanding stock options
and all other employee benefit plans of Spectrian California. Each outstanding
and unexercised option, warrant or other right to purchase shares of Spectrian
California Common Stock will become an option, warrant or right to purchase the
same number of shares of Spectrian Delaware Common Stock on the same terms and
conditions and at the same exercise price applicable to any such Spectrian
California option, warrant or right at the Effective Date.
The Proposed Reincorporation has been unanimously approved by Spectrian
California's Board of Directors. If approved by the shareholders, it is
anticipated that the Effective Date of the Merger will be as soon as practicable
following the Annual Meeting of Shareholders. However, pursuant to the Merger
Agreement, the Merger may be abandoned or the Merger Agreement may be amended by
the Board of Directors (except that certain principal terms may not be amended
without further shareholder approval) either before or after shareholder
approval has been obtained and prior to the Effective Date of the Proposed
Reincorporation if, in the opinion of the Board of Directors of either company,
circumstances arise that make it inadvisable to proceed.
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Shareholders of Spectrian California will have no dissenters' rights of
appraisal with respect to the Reincorporation Proposal. See "Significant
Differences Between the Corporation Laws of California and Delaware--Dissenters'
Rights." The discussion set forth below is qualified in its entirety by
reference to the Merger Agreement, the Certificate of Incorporation and the
Bylaws of Spectrian Delaware, copies of which are attached hereto as Appendix A,
Appendix B and Appendix C, respectively.
VOTE REQUIRED FOR THE REINCORPORATION PROPOSAL
Approval of the Reincorporation Proposal which will also constitute approval
of the (i) Merger Agreement, the Certificate of Incorporation and the Bylaws of
Spectrian Delaware, (ii) the assumption of Spectrian California's employee
benefit plans and outstanding stock options by Spectrian Delaware and (iii)
adoption of the Company's new indemnification agreements with its officers and
directors to conform those agreements to Delaware law, will require the
affirmative vote of the holders of a majority of the outstanding shares of
Spectrian California Common Stock. The effect of an abstention or a broker
non-vote is the same as that of a vote against the Reincorporation Proposal.
The Board recommends a vote "FOR" the Proposed Reincorporation in Delaware.
PRINCIPAL REASONS FOR THE PROPOSED REINCORPORATION
As the Company plans for the future, the Board of Directors and management
believe that it is essential to be able to draw upon well established principles
of corporate governance in making legal and business decisions. The prominence
and predictability of Delaware corporate law provide a reliable foundation on
which the Company's governance decisions can be based and the Company believes
that shareholders will benefit from the responsiveness of Delaware corporate law
to their needs and to those of the corporation they own.
Prominence, Predictability and Flexibility of Delaware Law. For many years
Delaware has followed a policy of encouraging incorporation in that state and,
in furtherance of that policy, has been a leader in adopting, construing and
implementing comprehensive, flexible corporate laws responsive to the legal and
business needs of corporations organized under its laws. Many corporations have
chosen Delaware initially as a state of incorporation or have subsequently
changed corporate domicile to Delaware in a manner similar to that proposed by
the Company. Because of Delaware's prominence as the state of incorporation for
many major corporations, both the legislature and courts in Delaware have
demonstrated an ability and a willingness to act quickly and effectively to meet
changing business needs. The Delaware courts have developed considerable
expertise in dealing with corporate issues and a substantial body of case law
has developed construing Delaware law and establishing public policies with
respect to corporate legal affairs.
Increased Ability to Attract and Retain Qualified Directors. Both California
and Delaware law permit a corporation to include a provision in its charter
documents which reduces or limits the monetary liability of directors for
breaches of fiduciary duty in certain circumstances. The increasing frequency of
claims and litigation directed against directors and officers has greatly
expanded the risks facing directors and officers of corporations in exercising
their respective duties. The amount of time and money required to respond to
such claims and to defend such litigation can be substantial. The Company
anticipates that it may seek to expand the number of outside directors on its
Board of Directors in the future. Although the Company has not experienced
difficulty in attracting and retaining qualified directors to date, it is the
Company's desire to reduce these risks to its directors and officers and to
limit situations in which monetary damages can be recovered against directors so
that the Company may continue to attract and retain qualified directors who
otherwise might be unwilling to serve because of the risks involved. The Company
believes that, in general, Delaware law provides greater protection to directors
than California law and that Delaware case law regarding a corporation's ability
to limit director liability is more developed and provides more guidance than
California law. See "The Charters and Bylaws of Spectrian California and
Spectrian Delaware--Monetary Liability of Directors."
Well Established Principles of Corporate Governance. There is substantial
judicial precedent in the Delaware courts as to the legal principles applicable
to measures that may be taken by a corporation and
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as to the conduct of the Board of Directors under the business judgment rule.
The Company believes that its shareholders will benefit from the well
established principles of corporate governance that Delaware law affords.
NO CHANGE IN THE NAME, BOARD MEMBERS, BUSINESS, MANAGEMENT, EMPLOYEE PLANS OR
LOCATION OF PRINCIPAL FACILITIES OF THE COMPANY
The Reincorporation Proposal will effect a change in the legal domicile of
the Company, but not its physical location. The Proposed Reincorporation will
not result in any change in the name, business, management, fiscal year, assets
or liabilities (except to the extent of legal and other costs of effecting the
reincorporation) or location of the principal facilities of the Company. The
five directors who are elected at the 1997 Annual Meeting of Shareholders will
become the directors of Spectrian Delaware. All employee benefit plans of
Spectrian California will be assumed and continued by Spectrian Delaware. All
stock options, warrants or other rights to acquire Common Stock of Spectrian
California will automatically be converted into an option, warrant or right to
purchase the same number of shares of Spectrian Delaware Common Stock at the
same price per share, upon the same terms, and subject to the same conditions.
Spectrian California's other employee benefit arrangements will also be
continued by Spectrian Delaware upon the terms and subject to the conditions
currently in effect.
ANTI-TAKEOVER IMPLICATIONS
Delaware, like many other states, permits a corporation to adopt a number of
measures through amendment of the certificate of incorporation or bylaws or
otherwise, which measures are designed to reduce a corporation's vulnerability
to unsolicited takeover attempts. The Reincorporation Proposal is not being
proposed in order to prevent an unsolicited takeover attempt, nor is it in
response to any present attempt known to the Board of Directors to acquire
control of the Company, obtain representation on the Board of Directors or take
significant action that affects the Company.
Nevertheless, certain effects of the Reincorporation Proposal may be
considered to have anti-takeover implications. Section 203 of the Delaware
General Corporation Law ("Section 203"), from which Spectrian Delaware does not
intend to opt out, restricts certain "business combinations" with "interested
stockholders" for three years following the date that a person or entity becomes
an interested stockholder, unless the Board of Directors approves the business
combination and/or other requirements are met. The Company believes that the
interests of its shareholders are better served by Spectrian Delaware electing
not to opt out of the Section 203 for the following reasons: (i) Section 203
does not affect Spectrian Delaware's stockholders' voting rights, (ii) Section
203 does not interfere with the ability of an existing stockholder or third
party to make a tender offer directly to Spectrian Delaware's stockholders,
(iii) Section 203 does not interfere with market purchases of additional shares
of Spectrian Delaware's Common Stock by an existing stockholder or a third
party, (iv) Section 203 does not prevent Spectrian Delaware stockholders from
electing a new board of directors, (v) Section 203 does not interfere or
prohibit with a proxy contest by interested stockholders to elect a board of
directors, (vi) Section 203 does not prevent an interested stockholder who has
obtained control of Spectrian Delaware from carrying on Spectrian Delaware's
business in an ordinary manner of entering into a merger or other business
combination as long as it is with an unrelated party and (vii) even if the Board
of Directors of Spectrian Delaware does not vote in favor of a proposed
transaction with an unrelated party and (vii) even if the Board of Directors of
Spectrian Delaware does not vote in favor of a proposed transaction with an
interested stockholder, the stockholders of the Company retain the ultimate
ability to allow the transaction to proceed if at least 66% vote in favor of the
transaction. As the provisions of Section 203 provide a framework within which
potential acquirors are required to treat stockholders equally and limits
opportunities for coercive tactics without impairing the ability of the
stockholders to accept a tender offer or to replace the management and directors
of Spectrian Delaware, the Board of Directors believes that it is not
appropriate to opt out of Section 203. See "Significant Differences Between the
Corporation Laws of California and Delaware--Stockholder Approval of Certain
Business Combinations."
Consistent with the Articles of Incorporation of Spectrian California, the
Certificate of Incorporation of Spectrian Delaware permits cumulative voting,
and such method of voting may make it more difficult
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to remove any given board member. Other measures permitted under Delaware law,
which the Company does not intend to implement include the establishment of a
staggered board of directors, elimination of the ability of 10% or more
shareholders to call special meetings of the shareholders, and elimination of
actions by written consent of the shareholders. The elimination of cumulative
voting and the establishment of a classified board of directors can also be
undertaken under California law in certain circumstances. For a detailed
discussion of all of the changes that will be implemented as part of the
Proposed Reincorporation, see "The Charters and Bylaws of Spectrian California
and Spectrian Delaware." For a discussion of differences between the laws of
California and Delaware, see "Significant Differences Between the Corporation
Laws of California and Delaware."
In addition, Delaware law permits a corporation to adopt such measures as
shareholder rights plans designed to reduce a corporation's vulnerability to
unsolicited takeover attempts. The Company adopted such a plan in October 1996
(the "Rights Plan"), and the Reincorporation will not constitute a triggering
event pursuant to such plan or affect the Rights Plan in any material respect.
There is substantial judicial precedent in the Delaware courts as to the legal
principles applicable to such defensive measures and as to the conduct of a
board of directors under the business judgment rule with respect to unsolicited
takeover attempts. The Board of Directors has no present intention following the
Proposed Reincorporation to amend the Certificate of Incorporation or Bylaws to
include additional provisions other than those now present in its California
Articles of Incorporation and Bylaws which might deter an unsolicited takeover
attempt. However, in the discharge of its fiduciary obligations to its
shareholders, the Board of Directors of the Company will continue to evaluate
the Company's vulnerability to potential unsolicited bids to acquire the Company
on unfavorable terms and to consider strategies to enhance the Board's ability
to negotiate with an unsolicited bidder.
THE CHARTERS AND BYLAWS OF SPECTRIAN CALIFORNIA AND SPECTRIAN DELAWARE
The provisions of the Spectrian Delaware Certificate of Incorporation and
Bylaws are similar to those of the Spectrian California Articles of
Incorporation and Bylaws in many respects. However, the Reincorporation Proposal
includes the implementation of certain provisions in the Spectrian Delaware
Certificate of Incorporation and Bylaws that alter the rights of stockholders
and the powers of management. In addition, Spectrian Delaware could implement
certain other changes by amending its Certificate of Incorporation and Bylaws in
the future. For a discussion of such changes, see "Significant Differences
Between the Corporation Laws of California and Delaware."
The Articles of Incorporation of Spectrian California currently authorize the
Company to issue up to 20,000,000 shares of Common Stock, no par value, and
5,000,000 shares of Preferred Stock, no par value of which 20,000 shares are
designated Series A Participating Preferred Stock in connection with the
Company's Rights Plan. None of Spectrian California's Series A Participating
Preferred Shares have been issued. The Certificate of Incorporation of Spectrian
Delaware provides that Spectrian Delaware will have 20,000,000 authorized shares
of Common Stock, $.001 par value, and 5,000,000 shares of Preferred Stock, $.001
par value of which 20,000 shares would be designated as Series A Participating
Preferred Stock in connection with the Rights Plan. Like Spectrian California's
Articles of Incorporation, Spectrian Delaware's Certificate of Incorporation
provides that the Board of Directors is entitled to determine the powers,
preferences and rights, and the qualifications, limitations or restrictions, of
the authorized and unissued Preferred Stock. Thus, although it has no present
intention of doing so, the Board of Directors, without stockholder approval,
could authorize the issuance of Preferred Stock upon terms which could have the
effect of delaying or preventing a change in control of the Company or modifying
the rights of holders of the Company's Common Stock under either California or
Delaware law. The Board of Directors could also utilize such shares for future
financings, possible acquisitions and other uses.
Monetary Liability of Directors. The Articles of Incorporation of Spectrian
California and the Certificate of Incorporation of Spectrian Delaware both
provide for the elimination of personal monetary liability of directors to the
fullest extent permissible under law. The provision eliminating monetary
liability of directors set forth in the Spectrian Delaware Certificate of
Incorporation is potentially more expansive than the corresponding provision in
the Spectrian California Articles of Incorporation in that Delaware permits
indemnification to occur with respect to certain actions that California does
not and
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under certain circumstances Delaware does not require the director or office to
prevail in an action in order for indemnification to be available. In connection
with the Proposed Reincorporation, the Company will enter into new
indemnification agreements with officers and directors to conform the agreements
to Delaware law. For a more detailed explanation of the foregoing, see
"Significant Differences Between the Corporation Laws of California and
Delaware--Indemnification and Limitation of Liability." A copy of the form of
Spectrian Delaware Indemnification Agreement is attached hereto as Appendix D.
Size of the Board of Directors. The Bylaws of Spectrian Delaware provide for
a Board of Directors consisting of five directors. The Bylaws of Spectrian
California provide for a Board of Directors of from five to nine members, with
the exact number currently set at five directors. Under California law, although
changes in the number of directors, in general, must be approved by a majority
of the outstanding shares, the Board of Directors may fix the exact number of
directors within a stated range set forth in the articles of incorporation or
bylaws, if the stated range has been approved by the shareholders. Delaware law
permits the board of directors acting alone, to change the authorized number of
directors by amendment to the bylaws, unless the directors are not authorized to
amend the bylaws or the number of directors is fixed in the certificate of
incorporation (in which case a change in the number of directors may be made
only by amendment to the certificate of incorporation following approval of such
change by the stockholders). The Spectrian Delaware Certificate of Incorporation
provides that the number of directors will be as specified in the Bylaws and
authorizes the Board of Directors to adopt, alter, amend or repeal the Bylaws.
Following the Proposed Reincorporation, the Board of Directors of Spectrian
Delaware could amend the Bylaws to change the size of the Board of Directors
from five directors without further stockholder approval. If the Reincorporation
Proposal is approved, the five directors of Spectrian California who are elected
at the 1997 Annual Meeting of Shareholders will continue as the five directors
of Spectrian Delaware after the Proposed Reincorporation is consummated.
Removal of Directors. Pursuant to Section 141 of the Delaware General
Corporation Law, if a corporation's stockholders may cumulate their votes for
directors, a director may not be removed without cause if the number of votes
cast against such director's removal would be sufficient to elect such director
under cumulative voting. As the stockholders of Spectrian Delaware will be
entitled to cumulate their votes for the election of directors, like the
shareholders of Spectrian California, the limitations on removal of directors
shall apply to Spectrian Delaware. The limitations imposed by Section 303 of the
California Corporations Code are substantially similar to those set forth under
Delaware General Corporation Law Section 141 for a corporation with cumulative
voting. Pursuant to Section 303 of the California Corporations Code, no director
may be removed without cause (unless the entire board is removed) when the votes
cast against his or her removal would be sufficient to elect the director if
voted cumulatively at an election at which the same total number of votes were
cast and the entire number of directors authorized at the time of the director's
most recent election were then being elected. Spectrian Delaware intends to
retain cumulative voting for directors in order to parallel the current
provisions under the existing charter documents of Spectrian California.
Although Section 141 of the Delaware General Corporation Law limits removal
of directors without cause, the section does not define the actions constituting
cause. Therefore, the Bylaws of Spectrian Delaware set forth a definition of
"cause" to be applied to the removal of directors by Spectrian Delaware's
stockholders. For purposes of these provisions, "cause" means (i) continued
willful failure to perform the obligations of a director, (ii) gross negligence
by the director, (iii) engaging in transactions that defraud the Company, (iv)
fraud or intentional misrepresentation including falsifying use of funds and
intentional misstatements made in financial statements, books, records or
reports to shareholders or governmental agencies, (v) material violation of any
agreement between the director and the Company, (vi) knowingly causing the
Company to commit violations of applicable law (including by failure to act),
(vii) acts of moral turpitude or (viii) conviction of a felony.
The provisions relating to removal of directors preclude the removal of any
particular director or group of directors unless removal is warranted and for
cause. One method employed by takeover bidders to obtain control of a company is
to acquire a significant percentage of the outstanding shares through a tender
offer or open market purchases and to use that voting power to remove the
existing directors and replace them with persons chosen by the takeover bidder.
Requiring cause in order to remove a director
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defeats this strategy, thereby encouraging potential takeover bidders to obtain
the cooperation of the existing Board before attempting a takeover. However, as
the same limitations on removal currently apply to Spectrian California, the
Proposed Reincorporation would not make it more difficult to remove existing
directors.
Authorization of a Requirement of Advance Notice. Effective upon the Proposed
Reincorporation, the Company proposes to establish an advance notice procedure
with regard to the nomination, other than by or at the direction of the Board of
Directors, of candidates for election as directors (the "Nomination Procedure")
and with regard to certain matters to be brought before an annual meeting of
stockholders (the "Business Procedure"). The Nomination Procedure and Business
Procedure have been implemented by the Board of Directors of Spectrian Delaware
adopting such provisions as part of the Bylaws of Spectrian Delaware. The
complete Nomination Procedure and Business Procedure are set forth in Section
2.2 of Spectrian Delaware's Bylaws attached hereto as Exhibit C. The following
four paragraphs summarize how the Nomination Procedure and Business Procedure
are implemented.
The Nomination Procedure provides that only persons nominated by or at the
direction of the Board of Directors or by a stockholder who has given timely
written notice to the Secretary of the Company prior to the meeting, will be
eligible for election as directors. The Business Procedure provides that at an
annual meeting of stockholders, and subject to any other applicable
requirements, only such business may be conducted as has been brought before the
meeting by or at the direction of the Board of Directors or by a stockholder who
has given timely written notice to the Secretary of the Company of such
stockholder's intention to bring such business before the meeting. In all cases,
to be timely, notice must be received by the Company prior to the date specified
in the Corporation's proxy statement released to the stockholders in connection
with the previous year's annual meeting (approximately 60 days prior to the
meeting). In the event that no annual meeting was held in the previous year or
the date of the annual meeting has been changed by more than 30 days from the
date contemplated at the time of the previous year's proxy statement, notice by
the stockholder to be timely must be received by the Company a reasonable time
before the solicitation is made. The Delaware General Corporation Law only
requires that stockholders receive notice of an annual meeting that states the
date, time and location of such meeting. The Board of Directors believes that
the information obtained in connection with the Nomination Procedure and the
Business Procedure will assist the Company in providing meaningful information
to its stockholders regarding the candidates for director and the business items
on the agenda.
Under the Nomination Procedure, a stockholder's notice to the Company must
contain certain information about the nominee, including name, address, the
consent to be nominated and such other information as would be required to be
included in a proxy statement soliciting proxies for the election of the
proposed nominee, and certain information about the stockholder proposing to
nominate that person, including name, address, a representation that the
stockholder is a holder of record of stock entitled to vote at the meeting and a
description of all arrangements or understandings between the stockholder and
each nominee.
Under the Business Procedure, notice relating to the conduct of business at
an annual meeting of stockholders other than the nomination of directors must
contain a brief description of the business to be brought before the meeting,
the reason for conducting such business at the annual meeting, and certain
information about the stockholder proposing such business, including name,
address and a representation that the stockholder is a holder of record of stock
entitled to vote at the meeting. If the Chairman or other officer presiding at
the meeting determines that a person was not nominated in accordance with the
Nomination Procedure, such person will not be eligible for election as a
director, or if he or she determines that other business was not properly
brought before such meeting in accordance with the Business Procedure, such
business will not be conducted at such meeting. Nothing in the Nomination
Procedure or the Business Procedure will preclude discussion by any stockholder
of any nomination or business properly made or brought before the annual meeting
of stockholders in accordance with the above-described procedures.
By requiring advance notice of nominations by stockholders, the Nomination
Procedure affords the Board of Directors an opportunity to consider the
qualification of the proposed nominees and, to the
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extent deemed necessary or desirable by the Board, to inform the stockholders
about such qualifications. By requiring advance notice of proposed business, the
Business Procedure provides the Board with an opportunity to inform stockholders
of any business proposed to be conducted at a meeting and the Board's position
on any such proposal, enabling stockholders to better determine whether they
desire to attend the meeting or grant a proxy to the Board of Directors as to
the disposition of such business. In addition, the Business Procedure provides
for a more orderly procedure for conducting the annual meeting of stockholders.
Although the Spectrian Delaware Bylaws do not give the Board any power to
approve or disapprove stockholder nominations for the election of directors or
any other business desired by stockholders to be conducted at an annual meeting,
the Spectrian Delaware Bylaws may have the effect of precluding a nomination for
the election of directors or of precluding any other business at a particular
annual meeting if the proper procedures are not followed. In addition, the
procedures may discourage or deter a third party from conducting a solicitation
of proxies to elect its own slate of directors or otherwise attempting to obtain
control of the Company, even if the conduct of such business or such attempt
might be beneficial to the Company and its stockholders. The Board of Directors
has considered the possible deterrent effect of such provision and has limited
to the extent possible the time between the submission deadline and the relevant
annual meeting.
COMPLIANCE WITH DELAWARE AND CALIFORNIA LAW
Following the Annual Meeting of Shareholders, if the Reincorporation Proposal
is approved, the Company will submit the Merger Agreement to the office of the
California Secretary of State and to the office of the Delaware Secretary of
State for filing.
SIGNIFICANT DIFFERENCES BETWEEN THE CORPORATION LAWS OF CALIFORNIA AND DELAWARE
The corporation laws of California and Delaware differ in many respects.
Although all the differences are not set forth in this Proxy Statement, certain
provisions, which could materially affect the rights of shareholders, are
discussed below.
Stockholder Approval of Certain Business Combinations. In recent years, a
number of states have adopted special laws designed to make certain kinds of
"unfriendly" corporate takeovers, or other transactions involving a corporation
and one or more of its significant shareholders, more difficult. Under Section
203, certain "business combinations" with "interested stockholders" of Delaware
corporations are subject to a three-year moratorium unless specified conditions
are met.
Section 203 prohibits a Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for three years following the date
that such person or entity becomes an interested stockholder. With certain
exceptions, an interested stockholder is a person or entity who or which owns,
individually or with or through certain other persons or entities, fifteen
percent (15%) or more of the corporation's outstanding voting stock (including
any rights to acquire stock pursuant to an option, warrant, agreement,
arrangement or understanding, or upon the exercise of conversion or exchange
rights, and stock with respect to which the person has voting rights only), or
is an affiliate or associate of the corporation and was the owner, individually
or with or through certain other persons or entities of fifteen percent (15%) or
more of such voting stock at any time within the previous three years, or is an
affiliate or associate of any of the foregoing.
For purposes of Section 203, the term "business combination" is defined
broadly to include mergers with or caused by the interested stockholder, sales
or other dispositions to the interested stockholder (except proportionately with
the corporation's other stockholders) of assets of the corporation or a direct
or indirect majority-owned subsidiary equal in aggregate market value to ten
percent (10%) or more of the aggregate market value of either the corporation's
consolidated assets or all of its outstanding stock, the issuance or transfer by
the corporation or a direct or indirect majority-owned subsidiary of stock of
the corporation or such subsidiary to the interested stockholder (except for
certain transfers in a conversion or exchange or a pro rata distribution or
certain other transactions, none of which increase the interested stockholder's
proportionate ownership of any class or series of the corporation's or such
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subsidiary's stock or of the corporation's voting stock); or receipt by the
interested stockholder (except proportionately as a stockholder), directly or
indirectly, of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation or a subsidiary.
The three-year moratorium imposed on business combinations by Section 203
does not apply if: (i) prior to the date on which such stockholder becomes an
interested stockholder the board of directors approves either the business
combination or the transaction that resulted in the person or entity becoming an
interested stockholder; (ii) upon consummation of the transaction that made him
or her an interested stockholder, the interested stockholder owns at least
eighty-five percent (85%) of the corporation's voting stock outstanding at the
time the transaction commenced (excluding from the eighty-five percent (85%)
calculation shares owned by directors who are also officers of the target
corporation and shares held by employee stock plans that do not give employee
participants the right to decide confidentially whether to accept a tender or
exchange offer); or (iii) on or after the date such person or entity becomes an
interested stockholder, the board approves the business combination and it is
also approved at a stockholder meeting by sixty-six and two-thirds percent (66
2/3 %) of the outstanding voting stock not owned by the interested stockholder.
Section 203 only applies to certain publicly held corporations that have a
class of voting stock that is (i) listed on a national securities exchange, (ii)
quoted on an interdealer quotation system of a registered national securities
association or (iii) held of record by more than 2,000 stockholders. Although a
Delaware corporation to which Section 203 applies may elect not to be governed
by Section 203, Spectrian Delaware does not intend to so elect to be excluded
from the statutory provisions of Section 203. Should a majority of the
outstanding shares of Spectrian Delaware vote at a later date to opt out of
Section 203, such action by the stockholders would not take effect until one
year after the vote occurred.
Section 203 will encourage any potential acquiror to negotiate with the
Company's Board of Directors. Section 203 also might have the effect of limiting
the ability of a potential acquiror to make a two-tiered bid for Spectrian
Delaware in which all stockholders would not be treated equally. Shareholders
should note, however, that the application of Section 203 to Spectrian Delaware
will confer upon the Board the power to reject a proposed business combination
in certain circumstances, even though a potential acquiror may be offering a
substantial premium for Spectrian Delaware's shares over the then-current market
price. Section 203 would also discourage certain potential acquirors unwilling
to comply with its provisions. See "Shareholder Voting" herein.
Shareholder Rights Plan. In October 1996, the Board of Directors of Spectrian
California adopted the Rights Plan. Pursuant to the Rights Plan, Spectrian
California declared a dividend of one Common Share Purchase Right (a "Right")
for each outstanding share of Common Stock and each share of Common Stock issued
thereafter. Initially, each Right entitles holders of Common Stock to purchase
from Spectrian California one share of Common Stock at an exercise price of
$126.00, subject to adjustment. The Rights are not exercisable until the
occurrence of specified events.
The Rights will become exercisable only if a person or group acquires 15% or
more of the Company's Common Stock or announces a tender offer or exchange offer
which would result in its ownership of 15% or more of the Common Stock. At the
time the Board of Directors adopted the Rights Plan, a shareholder of the
Company, Kopp Investment Advisors and its affiliates ("Kopp"), held more than
15% of the Company's Common Stock. In order to avoid triggering the Rights Plan
by virtue of such pre-existing interest, the Company and Kopp entered into an
agreement and the Rights Plan was amended such that the Rights will become
exercisable upon Kopp acquiring or announcing a tender offer or exercise offer
which would result in its ownership of 25% or more of the outstanding shares of
Spectrian California. Ten days after such acquisition or offer, each Right
becomes exercisable at the Right's then current exercise price, for shares of
Common Stock of the Company (or, in certain circumstances as determined by the
Board of Directors, a combination of cash, property, Common Stock or other
securities) having a value of twice the Right's exercise price. Alternatively,
if the Company is involved in a merger or other business combination transaction
with another person ten or more days after such acquisition or offer, each Right
becomes exercisable, at the Right's then current exercise price, for shares of
common stock of such other
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person having a value of twice the Right's exercise price. The Rights are
redeemable up to ten days following the announcement of such acquisition or
offer, subject to extension by the Board of Directors, at a price of $0.01 per
Right. The Rights Plan expires in October 2006 unless the Rights are earlier
redeemed by the Company.
The Rights Plan is intended to protect the shareholders in the event of an
unsolicited offer to acquire, or the acquisition of, 15% or more of the Common
Stock of Spectrian California. The Rights are not intended to prevent a takeover
of the Company and will not interfere with any tender offer or business
combination approved by the Board of Directors. The Rights encourage persons
seeking control of the Company to initiate such an acquisition or offer to
acquire through arm's-length negotiations with the Board of Directors.
The Rights Plan will be assumed by Spectrian Delaware pursuant to the terms
of the Merger Agreement. In the past, Delaware courts have upheld the validity
of plans such as the Rights Plan. To date, the California courts have not
considered the validity of such a plan. In any event, the Company believes that
the Rights Plan is more likely to be upheld in the event of a challenge if the
Reincorporation Proposal is effected and Spectrian California is merged into
Spectrian Delaware.
Power to Call Special Shareholders' Meetings. Under California law, a special
meeting of shareholders may be called by the Board of Directors, the Chairman of
the Board, the President, the holders of shares entitled to cast not less than
ten percent (10%) of the votes at such meeting and such additional persons as
are authorized by the articles of incorporation or the bylaws. The Board of
Directors of Spectrian California may not eliminate the right of ten percent
(10%) shareholders to call special meetings. Nor may the Board of Directors
amend Spectrian California's Articles of Incorporation or Bylaws without the
approval of the Company's shareholders (except that the Board of Directors may
reset the exact number of directors within a fixed range previously approved by
the shareholders). Under Delaware law, a special meeting of stockholders may be
called by the Board of Directors or by any other person authorized to do so in
the Certificate of Incorporation or the Bylaws. To conform the rights of
Spectrian Delaware's stockholders to those of the shareholders of Spectrian
California, the Bylaws of Spectrian Delaware authorize the Board of Directors
the Chairman of the Board, the President, and the holders of shares entitled to
cast not less than ten percent (10%) of the votes at such meeting to call a
special meeting of stockholders. However, the Spectrian Delaware Board of
Directors could amend the Bylaws of the Company at any time to eliminate the
right of stockholders to call a special meeting. The elimination of the right of
shareholders to call a special meeting would mean that a shareholder could not
force shareholder consideration of a proposal over the opposition of the Board
of Directors by calling a special meeting of shareholders prior to such time as
the Board believed such consideration to be appropriate or until the next annual
meeting provided that the requestor meets the notice requirements. The
restriction on the ability of stockholders to call a special meeting would mean
that a proposal to replace the Board could be delayed until the next annual
meeting.
Actions by Written Consent of Shareholders. Under California and Delaware
law, shareholders may execute an action by written consent in lieu of a
shareholder meeting. Delaware law permits a corporation to eliminate such
actions by written consent in its charter. Elimination of written consents of
shareholders could lengthen the amount of time required to take shareholder
actions since certain actions by written consent are not subject to the minimum
notice requirement of a shareholders' meeting. The elimination of shareholders'
written consents, however, would deter hostile takeover attempts. Without the
shareholder's written consent, a holder or group of holders controlling a
majority in interest of Spectrian Delaware's capital stock would not be able to
amend Spectrian Delaware's Bylaws or remove directors pursuant to a
stockholder's written consent. Any such holder or group of holders would have to
call a stockholders' meeting and wait the notice periods determined by the Board
of Directors pursuant to Spectrian Delaware's Bylaws prior to taking any such
action. Consistent with the Board of Directors' intention to retain the rights
of Spectrian California's shareholders after the Reincorporation, the Bylaws of
Spectrian Delaware provide for the retention of actions by written consent of
stockholders following the Reincorporation. Elimination of actions by written
consent of stockholders at a later date would require the approval of Spectrian
Delaware's stockholders to amend the Company's Certificate of Incorporation.
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Cumulative Voting for Directors. Under California law, if any shareholder has
given notice of an intention to cumulate votes for the election of directors,
any other shareholder of the corporation is also entitled to cumulate his or her
votes at such election. Cumulative voting provides that each share of stock
normally having one vote is entitled to a number of votes equal to the number of
directors to be elected. A shareholder may then cast all such votes for a single
candidate or may allocate them among as many candidates as the shareholder may
choose. In the absence of cumulative voting, the holders of a majority of the
shares present or represented at a meeting in which directors are to be elected
would have the power to elect all the directors to be elected at such meeting,
and no person could be elected without the support of holders of a majority of
the shares present or represented at such meeting. Elimination of cumulative
voting could make it more difficult for a minority shareholder adverse to a
majority of the shareholders to obtain representation on the Company's Board of
Directors. California corporations whose stock is listed on a national stock
exchange or whose stock is held by 800 shareholders of record and included in
the Nasdaq National Market System (a "Listed Company") can also eliminate
cumulative voting with shareholder approval. Although the Company may qualify as
a Listed Company, it has not sought shareholder approval to eliminate cumulative
voting. Under Delaware law, cumulative voting in the election of directors is
not mandatory, but is a permitted option. The Spectrian Delaware Certificate of
Incorporation provides for cumulative voting rights and thus the voting rights
are unchanged from those of the Spectrian California Articles of Incorporation.
Removal of Directors. Under California law, any director or the entire board
of directors may be removed, with or without cause, with the approval of a
majority of the outstanding shares entitled to vote; however, no individual
director may be removed (unless the entire board is removed) if the number of
votes cast against such removal would be sufficient to elect the director under
cumulative voting. In the case of a Delaware corporation having cumulative
voting, if less than the entire board is to be removed, a director may not be
removed without cause if the number of votes cast against such removal would be
sufficient to elect the director.
Filling Vacancies on the Board of Directors. Under California law, any
vacancy on the Board of Directors other than one created by removal of a
director may be filled by the Board. If the number of directors is less than a
quorum, a vacancy may be filled by the unanimous written consent of the
directors then in office, by the affirmative vote of a majority of the directors
at a meeting held pursuant to notice or waivers of notice or by a sole remaining
director. A vacancy created by removal of a director may be filled by the board
only if so authorized by a corporation's articles of incorporation or by a bylaw
approved by the corporation's shareholders. Spectrian California's Articles of
Incorporation and Bylaws do not permit directors to fill vacancies created by
removal of a director unless such director has been convicted of a felony or
found to be of unsound mind. Under Delaware law, vacancies and newly created
directorships may be filled by a majority of the directors then in office (even
though less than a quorum) or by a sole remaining director, unless otherwise
provided in the certificate of incorporation or bylaws (or unless the
certificate of incorporation directs that a particular class of stock is to
elect such director(s), in which case a majority of the directors elected by
such class, or a sole remaining director so elected, shall fill such vacancy or
newly created directorship). However, to make the Bylaws of Spectrian Delaware
consistent with those of Spectrian California, the Bylaws of Spectrian Delaware
include a provision that limits the remaining directors' ability to fill a
vacancy created by removal of directors by the stockholders to those
circumstances where the removed director was convicted of a felony or found to
be of unsound mind.
Classified Board of Directors. A classified board is one on which a certain
number, but not all, of the directors are elected on a rotating basis each year.
This method of electing directors makes changes in the composition of the board
of directors more difficult, and thus a potential change in control of a
corporation a lengthier and more difficult process. California law permits
certain qualifying corporations to provide for a classified board of directors
by adopting amendments to their articles of incorporation or bylaws, which
amendments must be approved by the shareholders. Although Spectrian California
qualifies to adopt a classified board of directors, its Board of Directors has
no present intention of doing so. Delaware law permits, but does not require, a
classified board of directors, pursuant to which the directors can be divided
into as many as three classes with staggered terms of office, with only one
class of directors
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standing for election each year. The Spectrian Delaware Certificate of
Incorporation and Bylaws do not provide for a classified board and Spectrian
Delaware presently does not intend to propose establishment of a classified
board. The establishment of a classified board following the Proposed
Reincorporation would require the approval of the stockholders of Spectrian
Delaware.
Indemnification and Limitation of Liability. California and Delaware have
similar laws respecting indemnification by a corporation of its officers,
directors, employees and other agents. The laws of both states also permit, with
certain exceptions, a corporation to adopt a provision in its articles of
incorporation or certificate of incorporation, as the case may be, eliminating
the liability of a director to the corporation or its shareholders for monetary
damages for breach of the director's fiduciary duty. There are nonetheless
certain differences between the laws of the two states respecting
indemnification and limitation of liability.
California law does not permit the elimination of monetary liability where
such liability is based on: (a) intentional misconduct or knowing and culpable
violation of law; (b) acts or omissions that a director believes to be contrary
to the best interests of the corporation or its shareholders, or that involve
the absence of good faith on the part of the director; (c) receipt of an
improper personal benefit; (d) acts or omissions that show reckless disregard
for the director's duty to the corporation or its shareholders, where the
director in the ordinary course of performing a director's duties should be
aware of a risk of serious injury to the corporation or its shareholders; (e)
acts or omissions that constitute an unexcused pattern of inattention that
amounts to an abdication of the director's duty to the corporation and its
shareholders; (f) interested transactions between the corporation and a director
in which a director has a material financial interest; and (g) liability for
improper distributions, loans or guarantees.
Delaware law permits a corporation to eliminate the liability of directors to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permissible under Delaware law, as such
law exists currently or as it may be amended in the future. However, such
provision may not eliminate or limit director monetary liability for: (a)
breaches of the director's duty of loyalty to the corporation or its
stockholders; (b) acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law; (c) the payment of unlawful dividends
or unlawful stock repurchases or redemptions; or (d) transactions in which the
director received an improper personal benefit. Such limitation of liability
provisions also may not limit a director's liability for violation of, or
otherwise relieve a corporation or its directors from the necessity of
complying, with federal or state securities laws, or affect the availability of
non-monetary remedies such as injunctive relief or rescission.
California law permits indemnification of expenses incurred in derivative or
third-party actions, except that with respect to derivative actions (a) no
indemnification may be made when a person is adjudged liable to the corporation
in the performance of that person's duty to the corporation and its shareholders
unless a court determines such person is entitled to indemnity for expenses, and
then such indemnification may be made only to the extent that such court shall
determine, and (b) no indemnification may be made without court approval in
respect of amounts paid or expenses incurred in settling or otherwise disposing
of a threatened or pending action or amounts incurred in defending a pending
action that is settled or otherwise disposed of without court approval.
California law requires indemnification when the individual has defended
successfully the action on the merits (as opposed to Delaware law, which
requires indemnification relating to a successful defense on the merits or
otherwise).
Delaware law generally permits indemnification of expenses, including
attorney's fees, actually and reasonably incurred in the defense or settlement
of a derivative or third-party action, provided there is a determination by a
majority vote of a disinterested quorum of the directors, by independent legal
counsel or by a majority vote of a quorum of the stockholders that the person
seeking indemnification acted in good faith and in a manner reasonably believed
to be in or (in contrast to California law) not opposed to the best interests of
the corporation. Without court approval, however, no indemnification may be made
in respect of any derivative action in which such person is adjudged liable for
negligence or misconduct in the performance of his or her duty to the
corporation. Delaware law requires indemnification of expenses when the
individual being indemnified has successfully defended any action, claim, issue,
or matter therein, on the merits or otherwise.
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Expenses incurred by an officer or director in defending an action may be
paid in advance, under Delaware law and California law, if such director or
officer undertakes to repay such amounts if it is ultimately determined that he
or she is not entitled to indemnification. In addition, the laws of both states
authorize a corporation's purchase of indemnity insurance for the benefit of its
officers, directors, employees and agents whether or not the corporation would
have the power to indemnify against the liability covered by the policy.
California law permits a California corporation to provide rights to
indemnification beyond those provided therein to the extent such additional
indemnification is authorized in the corporation's articles of incorporation.
Thus, if so authorized, rights to indemnification may be provided pursuant to
agreements or bylaw provisions which make mandatory the permissive
indemnification provided by California law. Under California law, there are two
limitations on such additional rights to indemnification: (i) such
indemnification is not permitted for acts, omissions or transactions from which
a director of a California corporation may not be relieved of personal
liability, as described above; and (ii) such indemnification is not permitted in
circumstances where California law expressly prohibits indemnification, as
described above.
Delaware law also permits a Delaware corporation to provide indemnification
in excess of that provided by statute. By contrast to California law, Delaware
law does not require authorizing provisions in the certificate of incorporation
and does not contain express prohibitions on indemnification in certain
circumstances; limitations on indemnification may be imposed by a court,
however, based on principles of public policy. A provision of Delaware law
states that the indemnification provided by statute shall not be deemed
exclusive of any other rights under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
Inspection of Shareholder List. Both California and Delaware law allow any
shareholder to inspect the shareholder list for a purpose reasonably related to
such person's interest as a shareholder. California law provides, in addition,
for an absolute right to inspect and copy the corporation's shareholder list by
persons holding an aggregate of five percent (5%) or more of a corporation's
voting shares, or shareholders holding an aggregate of one percent (1%) or more
of such shares who have filed a Schedule 14B with the Securities and Exchange
Commission in connection with a contested election of directors. The latter
provision has not been amended in response to the elimination of Schedule 14B
under the revised proxy rules. Under California law, such absolute inspection
rights also apply to a corporation formed under the laws of any other state if
its principal executive offices are in California or if it customarily holds
meetings of its board in California. Delaware law also provides for inspection
rights as to a list of stockholders entitled to vote at a meeting within a ten
day period preceding a stockholders' meeting for any purpose germane to the
meeting. However, Delaware law contains no provisions comparable to the absolute
right of inspection provided by California law to certain shareholders.
Dividends and Repurchases of Shares. California law dispenses with the
concepts of par value of shares as well as statutory definitions of capital,
surplus and the like. The concepts of par value, capital and surplus are
retained under Delaware law.
Under California law, a corporation may not make any distribution (including
dividends, whether in cash or other property, and repurchases of its shares,
other than repurchases of its shares issued under employee stock plans
contemplated by Section 408 of the California Corporations Code) unless either
(i) the corporation's retained earnings immediately prior to the proposed
distribution equal or exceed the amount of the proposed distribution or (ii)
immediately after giving effect to such distribution, the corporation's assets
(exclusive of goodwill, capitalized research and development expenses and
deferred charges) would be at least equal to 1.25 times its liabilities (not
including deferred taxes, deferred income and other deferred credits), and the
corporation's current assets would be at least equal to its current liabilities
(or 1.25 times its current liabilities if the average pre-tax and pre-interest
expense earnings for the preceding two fiscal years were less than the average
interest expense for such years). Such tests are applied to California
corporations on a consolidated basis.
Delaware law permits a corporation to declare and pay dividends out of
surplus or, if there is no surplus, out of net profits for the fiscal year in
which the dividend is declared and/or for the preceding
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fiscal year as long as the amount of capital of the corporation following the
declaration and payment of the dividend is not less than the aggregate amount of
the capital represented by the issued and outstanding stock of all classes
having a preference upon the distribution of assets. In addition, Delaware law
generally provides that a corporation may redeem or repurchase its shares only
if the capital of the corporation is not impaired and such redemption or
repurchase would not impair the capital of the corporation.
To date, the Company has not declared or paid cash dividends on its capital
stock. The Company currently expects it will retain its future earnings for use
in the operation and expansion of its business and does not anticipate paying
any cash dividends in the foreseeable future.
Shareholder Voting. Both California and Delaware law generally require that a
majority of the shareholders of both acquiring and target corporations approve
statutory mergers. Delaware law does not require a stockholder vote of the
surviving corporation in a merger (unless the corporation provides otherwise in
its certificate of incorporation) if (a) the merger agreement does not amend the
existing certificate of incorporation, (b) each share of the stock of the
surviving corporation outstanding immediately before the effective date of the
merger is an identical outstanding or treasury share after the merger, and (c)
either no shares of common stock of the surviving corporation and no shares,
securities or obligations convertible into such stock are to be issued or
delivered under the plan of merger, or the authorized unissued shares or the
treasury shares of common stock of the surviving corporation to be issued or
delivered under the plan of merger plus those initially issuable upon conversion
of any other shares, securities or obligations to be issued or delivered under
such plan do not exceed twenty percent (20%) of the shares of common stock of
such constituent corporation outstanding immediately prior to the effective date
of the merger. California law contains a similar exception to its voting
requirements for reorganizations where shareholders or the corporation itself,
or both, immediately prior to the reorganization will own immediately after the
reorganization equity securities constituting more than five sixths of the
voting power of the surviving or acquiring corporation or its parent entity.
Both California law and Delaware law also require that a sale of all or
substantially all of the assets of a corporation be approved by a majority of
the outstanding voting shares of the corporation transferring such assets.
With certain exceptions, California law also requires that mergers,
reorganizations, certain sales of assets and similar transactions be approved by
a majority vote of each class of shares outstanding. In contrast, Delaware law
generally does not require class voting, except in certain transactions
involving an amendment to the certificate of incorporation that adversely
affects a specific class of shares. As a result, shareholder approval of such
transactions may be easier to obtain under Delaware law for companies which have
more than one class of shares outstanding.
California law also requires that holders of nonredeemable common stock
receive nonredeemable common stock in a merger of the corporation with the
holder of more than fifty percent (50%) but less than ninety percent (90%) of
such common stock or its affiliate unless all of the holders of such common
stock consent to the transaction. This provision of California law may have the
effect of making a "cash-out" merger by a majority shareholder more difficult to
accomplish. Although Delaware law does not parallel California law in this
respect, under some circumstances Section 203 does provide similar protection
against coercive two-tiered bids for a corporation in which the stockholders are
not treated equally. See "Significant Differences Between the Corporation Laws
of California and Delaware Stockholder Approval of Certain Business
Combinations."
California law provides that, except in certain circumstances, when a tender
offer or a proposal for a reorganization or for a sale of assets is made by an
interested party (generally a controlling or managing person of the target
corporation), an affirmative opinion in writing as to the fairness of the
consideration to be paid to the shareholders must be delivered to shareholders.
This fairness opinion requirement does not apply to a corporation that does not
have shares held of record by at least 100 persons, or to a transaction that has
been qualified under California state securities laws. Furthermore, if a tender
of shares or vote is sought pursuant to an interested party's proposal and a
later proposal is made by another party at least ten days prior to the date of
acceptance of the interested party proposal, the shareholders
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must be informed of the later offer and be afforded a reasonable opportunity to
withdraw any vote, consent or proxy, or to withdraw any tendered shares.
Delaware law has no comparable provision.
Voting by Ballot. California law provides that the election of directors may
proceed in the manner described in a corporation's bylaws. Spectrian
California's Bylaws provide that the election of directors at a shareholders'
meeting may be by voice vote or ballot, unless prior to such vote a shareholder
demands a vote by ballot, in which case such vote must be by ballot. Under
Delaware law, the right to vote by written ballot may be restricted if so
provided in the Certificate of Incorporation. The Bylaws of Spectrian Delaware
do not address election by ballot, but the Certificate of Incorporation of
Spectrian Delaware, consistent with Spectrian California's Bylaws, provides that
if a stockholder specifically demands election of directors by ballot (or if the
Bylaws provide that elections shall be by ballot) then elections shall be held
by ballot. Stockholders of Spectrian Delaware may therefore continue to demand
election by ballot, unless and until the Certificate of Incorporation is
amended, which amendment would require a majority stockholder vote. It may be
more difficult for a stockholder to contest the outcome of a vote that has not
been conducted by written ballot.
Loans to Officers and Employees. Under California law, any loan or guaranty
to or for the benefit of a director or officer of the corporation or its parent
requires approval of the shareholders unless such loan or guaranty is provided
under a plan approved by shareholders owning a majority of the outstanding
shares of the corporation. However, under California law, shareholders of any
corporation with 100 or more shareholders of record, such as the Company, may
approve a bylaw authorizing the board of directors alone to approve loans or
guaranties to or on behalf of officers (whether or not such officers are
directors) if the board determines that any such loan or guaranty may reasonably
be expected to benefit the corporation. The Bylaws of Spectrian California
contain such a provision. Pursuant to the Spectrian Delaware Bylaws and in
accordance with Delaware law, Spectrian Delaware may make loans to, guarantee
the obligations of or otherwise assist its officers or other employees and those
of its subsidiaries (including directors who are also officers or employees)
when such action, in the judgment of the Board of Directors, may reasonably be
expected to benefit the corporation.
Interested Director Transactions. Under both California and Delaware law,
certain contracts or transactions in which one or more of a corporation's
directors has an interest are not void or voidable because of such interest
provided that certain conditions, such as obtaining the required approval and
fulfilling the requirements of good faith and full disclosure, are met. With
certain exceptions, the conditions are similar under California and Delaware
law. Under California and Delaware law (a) either the shareholders or the board
of directors must approve any such contract or transaction after full disclosure
of the material facts, and, in the case of board approval, the contract or
transaction must also be "just and reasonable" (in California) or "fair" (in
Delaware) to the corporation or (b) the contract or transaction must have been
just and reasonable or fair as to the corporation at the time it was approved.
In the latter case, California law explicitly places the burden of proof on the
at interested director. Under California law, if shareholder approval is sought,
the interested director is not entitled to vote his shares at a shareholder
meeting with respect to any action regarding such contract or transaction. If
board approval is sought, the contract or transaction must be approved by a
majority vote of a quorum of the directors, without counting the vote of any
interested directors (except that interested directors may be counted for
purposes of establishing a quorum). Under Delaware law, if board approval is
sought, the contract or transaction must be approved by a majority of the
disinterested directors (even if the disinterested directors are less than a
quorum). Therefore, certain transactions that the Board of Directors of
Spectrian California might not be able to approve because of the number of
interested directors, could be approved by a majority of the disinterested
directors of Spectrian Delaware, although less than a majority of a quorum. The
Company is not aware of any plans to propose any transaction involving directors
of the Company that could not be so approved under California law but could be
so approved under Delaware law.
Shareholder Derivative Suits. California law provides that a shareholder
bringing a derivative action on behalf of a corporation need not have been a
shareholder at the time of the transaction in question, provided that certain
tests are met. Under Delaware law, a stockholder may bring a derivative action
on behalf of the corporation only if the stockholder was a stockholder of the
corporation at the time of the transaction in question or if his or her stock
thereafter devolved upon him or her by operation
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of law. California law also provides that the corporation or the defendant in a
derivative suit may make a motion to the court for an order requiring the
plaintiff shareholder to furnish a security bond. Delaware does not have a
similar bonding requirement.
Dissenters' Rights. Under both California and Delaware law, a shareholder of
a corporation participating in certain major corporate transactions may, under
varying circumstances, be entitled to dissenters' rights of appraisal pursuant
to which such shareholder may receive cash in the amount of the fair market
value of his or her shares in lieu of the consideration he or she would
otherwise receive in the transaction. Under Delaware law, such fair market value
is determined exclusive of any element of value arising from the accomplishment
or expectation of the merger or consolidation, and such appraisal rights are not
available (a) with respect to the sale, lease or exchange of all or
substantially all of the assets of a corporation, (b) with respect to a merger
or consolidation by a corporation the shares of which are either listed on a
national securities exchange or are held of record by more than 2,000 holders if
such stockholders receive only shares of the surviving corporation or shares of
any other corporation that are either listed on a national securities exchange
or held of record by more than 2,000 holders, plus cash in lieu of fractional
shares of such corporations. or (c) to stockholders of a corporation surviving a
merger if no vote of the stockholders of the surviving corporation is required
to approve the merger under certain provisions of Delaware law.
The limitations on the availability of appraisal rights under California law
are different from those under Delaware law. Shareholders of a California
corporation whose shares are listed on a national securities exchange or on a
list of over-the-counter margin stocks issued by the Board of Governors of the
Federal Reserve System generally do not have such appraisal rights unless the
holders of at least five percent (5%) of the class of outstanding shares claim
the right or the corporation or any law restricts the transfer of such shares.
Appraisal rights are also unavailable if the shareholders of a corporation or
the corporation itself, or both, immediately prior to the reorganization will
own immediately after the reorganization equity securities constituting more
than five-sixths of the voting power of the surviving or acquiring corporation
or its parent entity (as will be the case in the Reincorporation Proposal).
Appraisal or dissenters' rights are, therefore, not available to shareholders of
Spectrian California with respect to the Reincorporation Proposal. California
law generally affords appraisal rights in sale of asset reorganizations.
Dissolution. Under California law, shareholders holding fifty percent (50%)
or more of the total voting power may authorize a corporation's dissolution,
with or without the approval of the corporation's board of directors, and this
right may not be modified by the articles of incorporation. Under Delaware law,
unless the board of directors approves the proposal to dissolve, the dissolution
must be approved by all the stockholders entitled to vote thereon. Only if the
dissolution is initially approved by the board of directors may it be approved
by a simple majority of the outstanding shares of the corporation's stock
entitled to vote. In the event of such a board-initiated dissolution, Delaware
law allows a Delaware corporation to include in its certificate of incorporation
a super majority (greater than a simple majority) voting requirement in
connection with dissolutions. Spectrian Delaware's Certificate of Incorporation
contains no such super majority voting requirement, however, and a majority of
the outstanding shares entitled to vote, voting at a meeting at which a quorum
is present, would be sufficient to approve a dissolution of Spectrian Delaware
that had previously been approved by its Board of Directors.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of certain federal income tax considerations
that may be relevant to holders of Spectrian California Common Stock who receive
Spectrian Delaware Common Stock in exchange for their Spectrian California
Common Stock as a result of the Proposed Reincorporation. The discussion does
not address all of the tax consequences of the Proposed Reincorporation that may
be relevant to particular Spectrian California shareholders, such as dealers in
securities, or those Spectrian California shareholders who acquired their shares
upon the exercise of stock options, nor does it address the tax consequences to
holders of options or warrants to acquire Spectrian California Common Stock.
Furthermore, no foreign, state, or local tax considerations are addressed
herein. IN VIEW OF THE VARYING NATURE OF SUCH TAX CONSEQUENCES, EACH SHAREHOLDER
IS URGED TO
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CONSULT HIS OR HER OWN TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES OF THE
PROPOSED REINCORPORATION, INCLUDING THE APPLICABILITY OF FEDERAL, STATE, LOCAL
OR FOREIGN TAX LAWS. This discussion is based on the Internal Revenue Code of
1986, as amended (the "Code"), the applicable Treasury Regulations promulgated
thereunder, judicial authority and current administrative rulings and practices
in effect on the date of this Proxy Statement.
The Proposed Reincorporation is expected to qualify as a reorganization
within the meaning of Section 368(a) of the Code, with the following tax
consequences:
(a) No gain or loss should be recognized by holders of Spectrian
California Common Stock upon receipt of Spectrian Delaware Common Stock
pursuant to the Proposed Reincorporation;
(b) The aggregate tax basis of the Spectrian Delaware Common Stock
received by each shareholder in the Proposed Reincorporation should be equal
to the aggregate tax basis of the Spectrian California Common Stock
surrendered in exchange therefor; and
(c) The holding period of the Spectrian Delaware Common Stock received by
each shareholder of Spectrian California should include the period for which
such shareholder held the Spectrian California Common Stock surrendered in
exchange therefor, provided that such Spectrian California Common Stock was
held by the shareholder as a capital asset at the time of Proposed
Reincorporation.
The Company has not requested a ruling from the Internal Revenue Service (the
"IRS") or an opinion of counsel with respect to the federal income tax
consequences of the Proposed Reincorporation under the Code. A successful IRS
challenge to the reorganization status of the Proposed Reincorporation (in
consequence of a failure to satisfy the "continuity of interest" requirement or
otherwise) would result in a shareholder recognizing gain or loss with respect
to each share of Spectrian California Common Stock exchanged in the Proposed
Reincorporation equal to the difference between the shareholder's basis in such
share and the fair market value, as of the time of the Proposed Reincorporation,
of the Spectrian Delaware, Common Stock received in exchange therefor. In such
event, a shareholder's aggregate basis in the shares of Spectrian Delaware
Common Stock received in the exchange would equal their fair market value on
such date, and the shareholder's holding period for such shares would not
include the period during which the shareholder held Spectrian California Common
Stock.
PROPOSAL THREE
AMENDMENT OF 1994 EMPLOYEE STOCK PURCHASE PLAN
At the Annual Meeting, the shareholders are being asked to approve an
amendment of the Company's 1994 Employee Stock Purchase Plan (the "Purchase
Plan") to increase the number of shares reserved for issuance thereunder by
200,000 shares. The adoption of the Purchase Plan was approved by the Board of
Directors in May 1994 and by the shareholders in June 1994. In June 1995 the
shareholders approved an amendment to the Purchase Plan to allow executive
officers of the Company to increase the rate of their payroll deductions at the
beginning of any purchase period thereunder. A total of 275,000 shares of Common
Stock have been reserved for issuance under the Purchase Plan. As of June 5,
1997, a total of 267,450 shares had been issued to employees at an average
purchase price of $9.66 per share pursuant to five offerings under the Purchase
Plan and 7,550 shares remain available for future issuance.
The fair market value of the Common Stock of the Company on the first day of
the most recent offering period was $6.59 per share. See "Purchase Price."
VOTE REQUIRED
The affirmative vote of a majority of the Votes Cast will be required by law
to approve the amendment to the Purchase Plan. For this purpose, the "Votes
Cast" are defined to be the shares of the Company's Common Stock represented and
voting at the Annual Meeting. In addition, the affirmative votes must constitute
at least a majority of the required quorum, which quorum is a majority of the
shares
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outstanding at the Record Date. Votes that are cast against the proposal will be
counted for purposes of determining both (i) the presence or absence of a quorum
and (ii) the total number of Votes Cast with respect to the proposal.
Abstentions will be counted for purposes of determining both (i) the presence or
absence of a quorum for the transaction of business and (ii) the total number of
Votes Cast with respect to the proposal. Accordingly, abstentions will have the
same effect as a vote against the proposal. Broker non-votes will be counted for
purposes of determining the presence or absence of a quorum for the transaction
of business, but will not be counted for purposes of determining the number of
Votes Cast with respect to this proposal.
THE BOARD OF DIRECTORS RECOMMENDS THAT SHAREHOLDERS VOTE FOR THE AMENDMENT TO
THE PURCHASE PLAN.
The essential terms of the Purchase Plan, as amended, are summarized as
follows:
PURPOSE
The purposes of the Purchase Plan is to provide employees of the Company and
of any subsidiary which is designated by the Board of Directors to participate
in the Purchase Plan with an opportunity to purchase Common Stock of the Company
through accumulated payroll deductions. The Purchase Plan is intended to qualify
under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code").
ADMINISTRATION
The Purchase Plan provides for administration by the Board of Directors of
the Company or a committee appointed by the Board. The Purchase Plan is
currently administered by the Board. All questions of interpretation or
application of the Purchase Plan are determined by the Board of Directors or its
appointed committee, and its decisions are final and binding upon all
participants. No charge for administrative or other costs may be made against
the payroll deductions of a participant in the Purchase Plan. Members of the
Board receive no additional compensation for their services in connection with
the administration of the Purchase Plan.
OFFERING PERIODS
The Purchase Plan has offering periods of approximately twenty-four months,
each divided into four six-month purchase periods. The offering periods commence
on or after December 31 and June 30 of each year. The Board of Directors has the
power to alter the duration of the offering periods without shareholder
approval.
ELIGIBILITY
Any person who (i) is a regular employee scheduled to work at least twenty
hours per week and at least five months per year and (ii) was employed by the
Company on the 1st day of April or the 1st day of October immediately preceding
the enrollment date (or by any subsidiary designated from time to time by the
Board of Directors) is eligible to participate in the Purchase Plan. Eligible
employees become participants in the Purchase Plan by delivering to the
Company's payroll office a subscription agreement authorizing payroll
deductions. An employee who becomes eligible to participate in the Purchase Plan
after the commencement of an offering may not participate in the Purchase Plan
until the commencement of the next offering period.
PURCHASE PRICE
The price at which shares are sold to participating employees is eighty-five
percent (85%) of the lower of the fair market value per share of the Common
Stock on (i) the first day of the offering period or (ii) the last day of the
purchase period. The fair market value of the Common Stock on a given date is
determined by reference to the closing sales price of the Nasdaq National
Market. The closing sale price per share of the Company's Common Stock on the
Nasdaq National Market on June 5, 1997 was $22.125.
PAYMENT OF PURCHASE PRICE; PAYROLL DEDUCTIONS
The purchase price of the shares is accumulated by payroll deductions over
the offering period. The deductions may not exceed 15% of a participant's
compensation. A participant may discontinue his or her
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participation in the Purchase Plan and may decrease the rate of payroll
deductions at any time during the offering period. A participant may increase
the rate of payroll deductions at the beginning of each purchase period. Payroll
deductions shall commence on the first payday following the offering date and
shall continue at the same rate until the end of the offering period unless
sooner terminated as provided in the Purchase Plan.
PURCHASE OF STOCK; EXERCISE OF OPTION
By executing a subscription agreement to participate in the Purchase Plan,
the employee is entitled to have shares placed under option to him or her. The
maximum number of shares placed under option to a participant in an offering is
that number arrived at by dividing the amount of his or her compensation which
he or she has elected to have withheld for the purchase period by the lower of
(i) 85% of the fair market value of a share of Common Stock at the beginning of
the offering period, or (ii) 85% of the fair market value of a share of Common
Stock on the last day of the purchase period as long as the total number of
shares issued to a participant for any purchase period does not exceed a number
determined by dividing $12,500 by the market value of a share of Common Stock at
the beginning of the offering period. Unless the employee's participation is
discontinued, the option for the purchase of shares will be exercised
automatically at the end of the purchase period at the applicable price.
Notwithstanding the forgoing, no employee shall be permitted to subscribe for
shares under the Purchase Plan (a) if, immediately after the grant of the
option, the employee would own, and/or hold outstanding options to purchase, 5%
or more of the voting stock or value of all classes of stock of the Company or
(b) which permits his or her rights to purchase stock under all employees stock
purchase plans of the Company and its subsidiaries to accrue at a rate which
exceeds twenty-five thousand dollars ($25,000) worth of stock (determined at the
fair market value of the shares at the time such option is granted) for each
calendar year in which such option is outstanding at any time. Furthermore, if
the number of shares which would otherwise be placed under option at the
beginning of an offering period exceeds the number of shares then available
under the Purchase Plan, a pro rata allocation of the shares remaining shall be
made in as equitable a manner as is practicable.
WITHDRAWAL
While each participant in the Purchase Plan is required to sign a
subscription agreement authorizing payroll deductions, the participant's
interest in a given offering may be terminated in whole, but not in part, by
signing and delivering to the Company a notice of withdrawal from the Purchase
Plan. Such withdrawal may be elected at any time prior to the end of the
applicable offering period. Any withdrawal by the employee during a given
offering automatically terminates the employee's interest in that offering.
TERMINATION OF EMPLOYMENT
Termination of a participant's employment for any reason, including
retirement or death, cancels his or her participation in the Purchase Plan
immediately. In such event, the payroll deductions credited to the participant's
account will be returned without interest to such participant, or, in the case
of death, to the person or persons entitled thereto as specified by the employee
in the subscription agreement.
CAPITAL CHANGES
In the event of any changes in the capitalization of the Company, such as
stock splits or stock dividends, resulting in an increase or decrease in the
number of shares of Common Stock, effected without receipt of consideration by
the Company, appropriate adjustments will be made by the Company in the shares
subject to purchase and in the purchase price per share. No change in the
Purchase Plan would result from the reincorporation of the Company as a Delaware
corporation as set forth in Proposal Two.
NONASSIGNABILITY
No rights or accumulated payroll deductions of an employee under the Purchase
Plan may be pledged, assigned, or transferred for any reason and any such
attempt may be treated by the Company as an election to withdraw from the
Purchase Plan.
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<PAGE>
AMENDMENT AND TERMINATION OF THE PURCHASE PLAN
The Board of Directors may at any time amend or terminate the Purchase Plan,
except that such termination shall not affect options previously granted nor may
any amendment make any changes in an option granted prior thereto which
adversely affects the rights of any participant. No amendment may be made to the
Purchase Plan without prior approval of the shareholders of the Company if such
amendment would increase the number of shares reserved under the Purchase Plan,
materially modify the eligibility requirements, or materially increase the
benefits which may accrue to participants under the Purchase Plan.
CERTAIN UNITED STATES FEDERAL INCOME TAX INFORMATION
The Purchase Plan, and the right of participants to make purchases
thereunder, is intended to qualify under the provisions of Section 423 of the
Code. Under these provisions, no income will be taxable to a participant until
the shares purchased under the Purchase Plan are sold or otherwise disposed of.
Upon sale or other disposition of the shares, the participant will generally be
subject to tax and the amount of the tax will depend upon the holding period. If
the shares are sold or otherwise disposed of more than two years from the first
day of the offering period and more than one year from the date of the shares
are purchased, the participant will recognize ordinary income measured as the
lesser of (a) the excess of the fair market value of the shares at the time of
such sale or disposition over the purchase price, or (b) an amount equal to 15%
of the fair market value of the shares as of the first day of the offering
period. Any additional gain will be treated as long-term capital gain. If the
shares are sold or otherwise disposed of before the expiration of these holding
periods, the participant will recognize ordinary income generally measured as
the excess of the fair market value of the shares on the date the shares are
purchased over the purchase price. Any additional gain or loss of such sale or
disposition will be long-term or short-term capital gain or loss, depending on
the holding period. Generally, the Company is entitled to a deduction for
ordinary income recognized by participants upon a sale or disposition of shares
prior to the expiration of the holding period(s) described above.
The foregoing is only a summary of the effect of federal income taxation upon
the participant and the Company with respect to the shares purchased under the
Purchase Plan. Reference should be made to the applicable provisions of the
Code. In additional, the summary does not discuss the tax consequences of a
participant's death or the income tax laws of any state or foreign country in
which the participant may reside.
PARTICIPATION IN THE PURCHASE PLAN
Participation in the Purchase Plan is voluntary and is dependent on each
eligible employee's election to participate and his or her determination as to
the level of payroll deductions. Accordingly, future purchases under the
Purchase Plan are not determinable. Non-employee directors are not eligible to
participate in the Purchase Plan.
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<PAGE>
<TABLE>
The following table sets forth certain information regarding shares purchased
during the fiscal year ended March 31, 1997 by each of the executive officers
named in the Summary Compensation Table below who participated in the Purchase
Plan, all current executive officers as a group, and all other employees who
participated in the Purchase Plan as a group:
<CAPTION>
NUMBER OF SHARES PURCHASED DOLLAR VALUE
NAME OF INDIVIDUAL OR IDENTITY OF GROUP AND POSITION (#) ($)(1)
---------------------------------------------------- --------------------------- --------------
<S> <C> <C>
Garrett A. Garrettson, President, Chief Executive Officer and
Director.................................................... -- --
Stephen B. Greenspan, Executive Vice President and Chief
Operating Officer........................................... -- --
David S. Wisherd, Executive Vice President, Chief Technical
Officer and Chairman of the Board of Directors(2)........... -- --
Edward A. Supplee, Jr., Executive Vice President, Finance and
Administration, Chief Financial Officer and Secretary(3).... 2,614 5,501
Gary R. Gianatasio, Senior Vice President, Business
Development................................................. 792 3,871
Joseph M. Veni, Senior Vice President, Sales and Marketing .. 2,497 5,080
William Zucker, Vice President, Marketing ................... 619 720
All Current Executive Officers as a group (7 Persons) ....... 10,788 22,982
Non-Executive Officer Directors as a group .................. * *
All Other Employees as a group .............................. 125,246 270,200
<FN>
- --------------------
* Not eligible to participate in the Purchase Plan.
(1) Market value of shares on date of purchase minus the purchase price under
the Purchase Plan.
(2) Mr. Wisherd resigned his position as Chief Technical Officer and Chairman of
the Board of Directors in October 1996 and resigned as Executive Vice
President in February 1997.
(3) Mr. Supplee resigned as Executive Vice President, Finance and
Administration, Chief Financial Officer and Secretary in January 1997.
</FN>
</TABLE>
PROPOSAL FOUR
AMENDMENT OF 1994 DIRECTOR OPTION PLAN
At the Annual Meeting, the shareholders are being asked to approve an
amendment of the Company's 1994 Director Option Plan (the "Director Plan") to
(i) increase the number of shares of Common Stock reserved for issuance
thereunder by 50,000 shares, (ii) increase the amount of the annual grants to
5,000 shares per annum and (iii) decrease the amount of such annual grants that
vest per month to 2.08% per month from 8.34% per month. The adoption of the
Director Plan was approved by the Board of Directors in May 1994 and
subsequently by the shareholders in June 1994. As of June 5, 1997, options to
purchase an aggregate of 25,000 shares of the Company's Common Stock were
outstanding, with a weighted average exercise price of $22.98 per share, and
60,000 shares (including the 60,000 shares subject to shareholder approval at
this Annual Meeting) were available for future grant. No shares have been
purchased pursuant to exercise of stock options under the Director Plan.
The Director Plan provides for the grant of nonqualified stock options to
non-employee directors of the Company who do not represent shareholders holding
more than 1% of the Company's outstanding Common Stock ("Outside Directors")
pursuant to an automatic, non-discretionary grant mechanism. The Company
believes that the grant of options to the non-employee directors has enabled the
Company to attract and retain directors with the talent that it continues to
require.
The Board of Directors seeks to replenish the authorized and reserved shares
for the Director Plan to enable the Company to continue its automatic,
non-discretionary grants at their present levels through Fiscal 1999, assuming
(i) the size of the Company's Board of Directors is expanded to include one to
two additional non-employee directors and (ii) that the current Outside
Directors remain eligible for the Director Plan. In addition, the Board of
Directors seeks to increase the size of the annual grants to Outside Directors
to enable the Company to attract and retain talented, qualified directors and to
bring
25
<PAGE>
the automatic, nondiscretionary grants under the Director Plan to a level in
order to make the Company competitive with others in its market. The Board of
Directors seeks to extend the vesting period of the annual grants under the
Director Plan in order to incentivize Outside Directors to remain on its Board
and to bring the vesting schedule of the Outside Director's options to more
closely reflect that of the employees of the Company.
FOR THESE REASONS, THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS
VOTE FOR APPROVAL OF THE AMENDMENTS TO THE DIRECTOR PLAN.
VOTE REQUIRED
The affirmative vote of a majority of the Votes Cast will be required to
approve the amendments to the Plan. In addition, the affirmative votes must
constitute at least a majority of the required quorum, which quorum is a
majority of the shares outstanding at the Record Date. Votes that are cast
against the proposal will be counted for purposes of determining both (i) the
presence or absence of a quorum and (ii) the total number of Votes Cast with
respect to the proposal. Abstentions will be counted for purposes of determining
both (i) the presence or absence of a quorum for the transaction of business and
(ii) the total number of Votes Cast with respect to the proposal. Accordingly,
abstentions will have the same effect as a vote against the proposal. Broker
non-votes will be counted for purposes of determining the presence or absence of
a quorum for the transaction of business, but will not be counted for purposes
of determining the number of Votes Cast with respect to this proposal.
The essential terms of the Director Plan are summarized as follows:
PURPOSE
The purposes of the Director Plan are to attract, retain and motivate the
best available non-employee directors and to promote the success of the
Company's business.
AUTOMATIC, NON-DISCRETIONARY GRANTS AND ELIGIBILITY
The Director Plan provides that each future Outside Director automatically
will be granted an option to purchase 5,000 shares of Common Stock of the
Company on the date upon which such person becomes an Outside Director (the
"First Option"). Subsequently, each Outside Director is granted an additional
option to purchase 1,250 shares of Common Stock (a "Subsequent Option") at the
next meeting of the Board of Directors following the Annual Meeting of
Shareholders (if, on such date, he or she has served as a director for at least
six months), so long as he or she remains an Outside Director. The Board of
Directors has approved the increase of the amount of the Subsequent Option to
5,000 shares of Common Stock per year. If approved by the Company's
shareholders, the increase in the Subsequent Option amount would take effect at
the meeting of the Board of Directors of the Company immediately following the
1997 Annual Meeting of Shareholders.
TERMS OF OPTIONS
Each option is evidenced by a stock option agreement between the Company and
the optionee to whom such option is granted and is subject to the following
additional terms and conditions:
(1) EXERCISE OF THE OPTION: The options granted under the Director Plan
may be exercised after the shares subject to the option become vested. The
Director Plan provides for vesting of 25% of the First Option on each
anniversary of the date of grant, and the Subsequent Options vest as to 8.34%
of the shares subject to the Option on each monthly anniversary of the date
of grant. The Board of Directors has approved a proposal to increase the
vesting period of the Subsequent Options such that any option granted after
the 1997 Annual Meeting of Shareholders would vest at a rate of 2.08% on each
monthly anniversary of the date of grant. The vesting period of Subsequent
Options granted prior to the 1997 Annual Meeting of Shareholders will not be
affected by the proposed amendments. An option is exercised by giving written
notice of exercise to the Company, specifying the number of shares of Common
Stock to be purchased and tendering payment to the Company of the purchase
price. Payment for shares issued upon exercise of an option may consist of
cash, check, promissory
26
<PAGE>
note, delivery of already-owned shares of the Company's Common Stock, subject
to certain conditions. Payment may also be made by a cashless exercise
procedure under which the optionee provides irrevocable instructions to a
brokerage firm to sell the purchased shares and to remit to the Company, out
of the sale proceeds, an amount equal to the exercise price plus all
applicable withholding taxes or such other consideration as determined by the
Administrator and as permitted by the California Corporations Code.
Options may be exercised at any time on or following the date the options
are first exercisable. An Option may not be exercised for a fraction of a
share.
(2) OPTION PRICE: The option price of nonqualified stock options under the
Director Plan is 100% of the fair market value of the Common Stock on the
date the option is granted. For purposes of the Plan, fair market value is
defined as the closing price per share of the Common Stock on the date of
grant as reported on the Nasdaq National Market.
(3) TERMINATION OF EMPLOYMENT: The Director Plan provides that if the
optionee's status as a non-employee director of the Company is terminated for
any reason, other than death or disability, options may be exercised within
Three months after such termination and may be exercised only to the extent
the options were exercisable on the date of termination.
(4) DEATH: If an optionee should die while a non-employee director of the
Company, options may be exercised at any time within twelve months after the
date of death but only to the extent that the options were exercisable on the
date of death and in no event later than the expiration of the term of such
option.
(5) DISABILITY: If an optionee's status as a non-employee director is
terminated due to a disability, options may be exercised at any time within
twelve months from the date of such termination, but only to the extent that
the options were exercisable on the date of termination of the individual's
status as an Outside Director and in no event later than the expiration of
the term of such option.
(6) TERMINATION OF OPTIONS: Options granted under the Director Plan expire
ten years from the date of grant. No option may be exercised by any person
after such expiration.
(7) NONTRANSFERABILITY OF OPTIONS: An option is nontransferable by the
optionee, other than by will or the laws of descent and distribution or a
qualified domestic relations order, and is exercisable only by the optionee
during his or her lifetime or, in the event of death, by a person who
acquires the right to exercise the option by bequest or inheritance or by
reason of the death of the optionee.
ADJUSTMENT UPON CHANGES IN CAPITALIZATION
In the event any change, such as a stock split or dividend, is made in the
Company's capitalization which results in an increase or decrease in the number
of outstanding shares of Common Stock without receipt of consideration by the
Company, an appropriate adjustment shall be made in the option price and in the
number of shares subject to each option. In the event of the proposed
dissolution or liquidation of the Company, all outstanding options automatically
terminate. In the event of a merger of the Company with or into another
corporation or sale of substantially all of the assets of the Company, all
outstanding options shall be assumed or an equivalent option substituted by the
successor corporation. If the options are not assumed or substituted by the
successor corporation, the options vest in full immediately but terminate 30
days from the date notice is given to the optionee of the fully vested status of
the option. Should the shareholders of the Company approve the Reincorporation
of the Company as a Delaware corporation as set forth in Proposal Two, the
Director Plan and all outstanding options thereunder would be assumed by
Spectrian Delaware upon the closing of the Reincorporation.
AMENDMENT AND TERMINATION
With the exception of the Administration of the Director Plan, including the
number, frequency and price of grants and the eligibility and vesting of
options, the Board of Directors may amend the Directors Plan at any time or from
time to time or may terminate it without approval of the shareholders, provided,
27
<PAGE>
however, that shareholder approval is required for any amendment which increases
the number of shares which may be issued under the Director Plan or for any
amendment that would be required to enable the Director Plan to comply with Rule
16b-3 promulgated under the Securities Exchange Act of 1934, as amended.
However, no action by the Board of Directors or shareholders may alter or impair
any option previously granted under the Director Plan without the consent of the
optionee. In any event, the Director Plan will terminate in May 2004.
TAX INFORMATION
Options granted under the Director Plan are nonqualified options.
An optionee will not recognize any taxable income at the time he or she is
granted a nonqualified option. However, upon its exercise, the optionee will
recognize ordinary income generally measured as the excess of the then fair
market value of the shares purchased over the purchase price. Any taxable income
recognized in connection with an option exercise by an optionee who is also an
employee of the Company will be subject to tax withholding by the Company. Upon
resale of such shares by the optionee, any difference between the sales price
and the optionee's purchase price, to the extent not recognized as taxable
income as described above, will be treated as long-term or short-term capital
gain or loss, depending on the holding period.
Generally, the Company will be entitled to a tax deduction in the same amount
as the ordinary income recognized by the optionee with respect to shares
acquired upon exercise of a nonqualified option.
The foregoing is only a summary of the effect of federal income taxation upon
the optionee and the Company with respect to the grant and exercise of options
under the Director Plan, does not purport to be complete, and does not discuss
the tax consequences of the optionee's death or the income tax laws of any
municipality, state or foreign country in which an optionee may reside.
PARTICIPATION IN THE PLAN
The grant of options under the Director Plan to non-employee directors who do
not represent greater than 1% shareholders of the Company is automatic and
non-discretionary. Assuming the proposed amendments are approved the Company's
shareholders at the 1997 Annual Meeting of Shareholders, at the first meeting of
the Board of Directors held thereafter, each of Messrs. Cole, Cooper, Wilson and
Young, if re-elected by the shareholders, will receive an automatic,
non-discretionary grant of an option to purchase 5,000 shares of the Company's
Common Stock at an exercise price equal to the fair market value on that day and
such Subsequent Options will vest at a rate of 2.08% per month. In the event the
proposed amendments are not approved by the shareholders, each such option will
be in the amount of 1,250 shares of the Company's Common Stock and will vest at
a rate of 8.34% per month so long as the optionee remains a non-employee
director of the Company. Information regarding options granted to non-employee
Directors pursuant to the 1994 Director Option Plan during Fiscal 1997 is set
forth under the heading "Executive Compensation and Other Matters--Compensation
of Directors." During Fiscal 1997, all current non-employee directors as a group
received options to purchase 10,000 shares pursuant to the Director Plan. No
other employee or director of the Company received any shares pursuant to the
Director Plan.
PROPOSAL FIVE
AMENDMENT OF 1992 STOCK PLAN
At the Annual Meeting, the shareholders are being asked to approve an
amendment of the Company's 1992 Stock Plan (the "Plan") to increase the number
of shares of Common Stock reserved for issuance thereunder by 350,000 shares.
The adoption of the Plan was approved by the Board of Directors in July 1992 and
subsequently by the shareholders. In June 1996 the shareholders approved an
amendment to the Plan to increase the number of shares of Common Stock reserved
for issuance thereunder by 625,000 shares and to make certain changes to the
Plan in order that it comply with the performance- based criteria of Section
162(m) of the Code. As of June 5, 1997, options to purchase an aggregate of
28
<PAGE>
1,338,603 shares of the Company's Common Stock were outstanding, with a weighted
average exercise price of $13.02 per share, and 593,531 shares (including the
350,000 shares subject to shareholder approval at this Annual Meeting) were
available for future grant. In addition, 1,368,751 shares have been purchased
pursuant to exercise of stock options under the Plan.
The Plan authorizes the Board of Directors to grant stock options to eligible
employees and consultants of the Company. The Plan is structured to allow the
Board of Directors broad discretion in creating equity incentives in order to
assist the Company in attracting, retaining and motivating the best available
personnel for the successful conduct of the Company's business. The Company has
had a longstanding practice of linking key employee compensation to corporate
performance because it believes that this increases employee motivation to
improve shareholder value. The Company has, therefore, consistently included
equity incentives as a significant component of compensation for a broad range
of the Company's employees. This practice has enabled the Company to attract and
retain the talent that it continues to require.
During fiscal 1997 most of the authorized shares in the Plan were granted,
because the Company assembled a new management team through hiring and
promotions and hired a number of key technical contributors. The Board of
Directors believes that the remaining shares available for grant under the Plan
are insufficient to accomplish the purposes of the Plan described above. The
Company anticipates there will be a need to hire additional technical or
management employees during fiscal 1998 and it will be necessary to offer equity
incentives to attract and motivate these individuals, particularly in the
extremely competitive job market in Silicon Valley. In addition, in order to
retain the services of valuable employees as the Company matures and its
employee base grows larger, it will be necessary to grant additional options to
current employees as older options become fully vested.
FOR THESE REASONS, THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS
VOTE FOR APPROVAL OF THE AMENDMENT TO THE PLAN.
VOTE REQUIRED
The affirmative vote of a majority of the Votes Cast will be required to
approve the amendment to the Plan. In addition, the affirmative votes must
constitute at least a majority of the required quorum, which quorum is a
majority of the shares outstanding at the Record Date. Votes that are cast
against the proposal will be counted for purposes of determining both (i) the
presence or absence of a quorum and (ii) the total number of Votes Cast with
respect to the proposal. Abstentions will be counted for purposes of determining
both (i) the presence or absence of a quorum for the transaction of business and
(ii) the total number of Votes Cast with respect to the proposal. Accordingly,
abstentions will have the same effect as a vote against the proposal. Broker
non-votes will be counted for purposes of determining the presence or absence of
a quorum for the transaction of business, but will not be counted for purposes
of determining the number of Votes Cast with respect to this proposal.
The essential terms of the Plan are summarized as follows:
PURPOSE
The purposes of the Plan are to attract, retain and motivate the best
available personnel for positions of substantial responsibility, to provide
additional incentive to employees and consultants of the Company and to promote
the success of the Company's business.
ADMINISTRATION
The Plan provides for administration by the Board of Directors of the Company
or by a Committee of the Board. The Plan is currently being administered by the
Compensation Committee of the Board of Directors, except that grants to
executive officers are approved by the entire Board of Directors. The Board or
the committee appointed to administer the Plan are referred to in this
description as the "Administrator." The Administrator determines the terms of
options granted, including the exercise price, number of shares subject to the
option and the exercisability thereof. All questions of interpretation
29
<PAGE>
are determined by the Administrator and its decisions are final and binding upon
all participants. Members of the Board receive no additional compensation for
their services in connection with the administration of the Plan.
ELIGIBILITY
The Plan provides that either incentive or nonqualified stock options may be
granted to employees (including officers and employee directors) of the Company
or any of its designated subsidiaries. In addition, the Plan provides that
nonqualified stock options may be granted to consultants of the Company or any
of its designated subsidiaries. The Administrator elects the optionees and
determines the number of shares to be subject to each option. In making such
determination, there are taken into account the duties and responsibilities of
the optionee, the value of the optionee's services, the optionee's present and
potential contribution to the success of the Company and other relevant factors.
The Plan provides a limit of $100,000 on the aggregate fair market value of
shares subject to all incentive options which are exercisable for the first time
in any one calendar year.
TERMS OF OPTIONS
Each option is evidenced by a stock option agreement between the Company and
the optionee to whom such option is granted and is subject to the following
additional terms and conditions:
(1) EXERCISE OF THE OPTION: The Administrator determines when options
granted under the Plan may be exercised. An option is exercised by giving
written notice of exercise to the Company, specifying the number of shares of
Common Stock to be purchased and tendering payment to the Company of the
purchase price. Payment for shares issued upon exercise of an option may
consist of cash, check, promissory note, delivery of already-owned shares of
the Company's Common Stock, subject to certain conditions. Payment may also
be made by a cashless exercise procedure under which the optionee provides
irrevocable instructions to a brokerage firm to sell the purchased shares and
to remit to the Company, out of the sale proceeds, an amount equal to the
exercise price plus all applicable withholding taxes or such other
consideration as determined by the Administrator and as permitted by the
California Corporations Code.
Options may be exercised at any time on or following the date the options
are first exercisable. An Option may not be exercised for a fraction of a
share.
(2) OPTION PRICE: The option price of all incentive stock options and
nonqualified stock options under the Plan is determined by the Administrator,
but in no event shall it be less than the fair market value of the Common
Stock on the date the option is granted. For purposes of the Plan, fair
market value is defined as the closing price per share of the Common Stock on
the date of grant as reported on the Nasdaq National Market. In the case of
an option granted to an optionee who at the time of grant owns stock
representing more than 10% of the voting power of all classes of stock of the
Company, the option price must be not less than 110% of the fair market value
on the date of grant.
(3) TERMINATION OF EMPLOYMENT: The Plan provides that if the optionee's
employment by the Company is terminated for any reason, other than death or
disability, options may be exercised within 30 days (or such other period of
time not exceeding three months or such other period of time, not exceeding
three months in the case of Incentive Stock Options, as is determined by the
Administrator) after such termination and may be exercised only to the extent
the options were exercisable on the date of termination.
(4) DEATH: If an optionee should die while an employee or a consultant of
the Company (or during such period of time not exceeding three months, as
determined by the Administrator), options may be exercised at any time within
six months after the date of death but only to the extent that the options
were exercisable on the date of death and in no event later than the
expiration of the term of such option as set forth in the Notice of Grant.
(5) DISABILITY: If an optionee's employment is terminated due to a
disability, options may be exercised at any time within twelve months from
the date of such termination, but only to the extent
30
<PAGE>
that the options were exercisable on the date of termination of employment
and in no event later than the expiration of the term of such option as set
forth in the Notice of Grant.
(6) TERMINATION OF OPTIONS: Options granted under the Plan expire no later
than ten years from the date of grant. However, incentive stock options
granted to an optionee who, immediately before the grant of such option,
owned more than 10% of the total combined voting power of all classes of
stock of the Company or a parent or subsidiary corporation, may not have a
term of more than five years. No option may be exercised by any person after
such expiration.
(7) NONTRANSFERABILITY OF OPTIONS: An option is nontransferable by the
optionee, other than by will or the laws of descent and distribution or a
qualified domestic relations order, and is exercisable only by the optionee
during his or her lifetime or, in the event of death, by a person who
acquires the right to exercise the option by bequest or inheritance or by
reason of the death of the optionee.
ADJUSTMENT UPON CHANGES IN CAPITALIZATION
In the event any change, such as a stock split or dividend, is made in the
Company's capitalization which results in an increase or decrease in the number
of outstanding shares of Common Stock without receipt of consideration by the
Company, an appropriate adjustment shall be made in the option price and in the
number of shares subject to each option. In the event of the proposed
dissolution or liquidation of the Company, all outstanding options automatically
terminate. In the event of a merger of the Company with or into another
corporation or sale of substantially all of the assets of the Company, all
outstanding options shall be assumed or an equivalent option substituted by the
successor corporation. The Administrator may in its discretion make provision
for accelerating the exercisability of shares subject to options under the Plan
in such event. Should the shareholders of the Company approve the
Reincorporation of the Company as a Delaware corporation as set forth in
Proposal Two, the Plan and all outstanding options thereunder would be assumed
by Spectrian Delaware upon the closing of the Reincorporation.
AMENDMENT AND TERMINATION
The Board of Directors may amend the Plan at any time or from time to time or
may terminate it without approval of the shareholders, provided, however, that
shareholder approval is required for any amendment which increases the number of
shares which may be issued under the Plan, materially changes the standards of
eligibility or materially increases the benefits which may accrue to
participants under the Plan. However, no action by the Board of Directors or
shareholders may alter or impair any option previously granted under the Plan
without the consent of the optionee. In any event, the Plan will terminate in
July 2002.
TAX INFORMATION
Options granted under the Plan may be either "incentive stock options," as
defined in Section 422 of the Code, or nonqualified options.
An optionee who is granted an incentive stock option will not recognize
taxable income either at the time the option is granted or upon its exercise,
although the exercise may subject the optionee to the alternative minimum tax.
Upon the sale or exchange of the shares more than two years after grant of the
option and one year after exercising the option, any gain or loss will be
treated as long-term capital gain or loss. If these holding periods are not
satisfied, the optionee will recognize ordinary income at the time of sale or
exchange equal to the difference between the exercise price and the lower of (i)
the fair market value of the shares at the date of the option exercise or (ii)
the sale price of the shares. A different rule for measuring ordinary income
upon such a premature disposition may apply if the optionee is also an officer,
director, or 10% shareholder of the Company. Generally, the Company will be
entitled to a deduction in the same amount as the ordinary income recognized by
the optionee. Any gain or loss recognized on such a premature disposition of the
shares in excess of the amount treated as ordinary income will be characterized
as long-term or short-term capital gain or loss, depending on the holding
period.
All other options which do not qualify as incentive stock options are
referred to as nonqualified options. An optionee will not recognize any taxable
income at the time he or she is granted a nonqualified
31
<PAGE>
option. However, upon its exercise, the optionee will recognize ordinary income
generally measured as the excess of the then fair market value of the shares
purchased over the purchase price. Any taxable income recognized in connection
with an option exercise by an optionee who is also an employee of the Company
will be subject to tax withholding by the Company. Upon resale of such shares by
the optionee, any difference between the sales price and the optionee's purchase
price, to the extent not recognized as taxable income as described above, will
be treated as long-term or short-term capital gain or loss, depending on the
holding period.
Generally, the Company will be entitled to a tax deduction in the same amount
as the ordinary income recognized by the optionee with respect to shares
acquired upon exercise of a nonqualified option.
The foregoing is only a summary of the effect of federal income taxation upon
the optionee and the Company with respect to the grant and exercise of options
under the Plan, does not purport to be complete, and does not discuss the tax
consequences of the optionee's death or the income tax laws of any municipality,
state or foreign country in which an optionee may reside.
PARTICIPATION IN THE PLAN
The grant of options under the Plan to executive officers, including the
officers named in the Summary Compensation Table below, is subject to the
discretion of the Administrator. As of the date of this proxy statement, there
has been no determination by the Administrator with respect to future awards
under the Plan. Accordingly, future awards are not determinable. The table of
option grants under "Executive Compensation and Other Matters--Option Grants in
Last Fiscal Year" provides information with respect to the grant of options to
the named executive officers during Fiscal 1997. Information regarding options
granted to non-employee Directors pursuant to the 1994 Director Option Plan
during Fiscal 1997 is set forth under the heading "Executive Compensation and
Other Matters--Compensation of Directors." During Fiscal 1997, all current
executive officers as a group and all other employees as a group received
options to purchase 603,000 shares and 887,780 shares, respectively, pursuant to
the Plan. As of March 31, 1997, approximately 530 persons were eligible to
participate in the Plan.
PROPOSAL SIX
RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
The Board of Directors has selected KPMG Peat Marwick LLP, independent
auditors, to audit the consolidated financial statements of the Company for the
fiscal year ending March 31, 1998, and recommends that shareholders vote for
ratification of such appointment. Although action by shareholders is not
required by law, the Board of Directors has determined that it is desirable to
request approval of this selection by the shareholders. Notwithstanding the
selection, the Board of Directors, in its discretion, may direct the appointment
of new independent auditors at any time during the year, if the Board of
Directors feels that such a change would be in the best interest of the Company
and its shareholders. In the event of a negative vote on ratification, the Board
of Directors will reconsider its selection.
KPMG Peat Marwick LLP has audited the Company's financial statements annually
since 1993. Representatives of KPMG Peat Marwick LLP are expected to be present
at the meeting with the opportunity to make a statement if they desire to do so
and are expected to be available to respond to appropriate questions.
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE RATIFICATION OF THE
APPOINTMENT OF KPMG PEAT MARWICK LLP AS INDEPENDENT AUDITORS OF THE COMPANY FOR
THE FISCAL YEAR ENDING MARCH 31, 1998.
32
<PAGE>
EXECUTIVE COMPENSATION AND OTHER MATTERS
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
<TABLE>
The following Summary Compensation Table sets forth certain information
regarding the compensation of the Chief Executive Officer of the Company and the
other four most highly compensated executive officers of the Company for
services rendered in all capacities to the Company for the fiscal year.
<CAPTION>
LONG-TERM
COMPENSATION
AWARDS
-------------
ANNUAL NUMBER OF
COMPENSATION(1) SECURITIES
FISCAL --------------- UNDERLYING
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS(2) OPTIONS
- ------------------------------------------- -------- ---------- --------- --------------
<S> <C> <C> <C> <C>
Garrett A. Garrettson 1997 $250,159 $46,470 250,000
President, Chief Executive Officer and 1996 -- -- --
Director 1995 -- -- --
Stephen B. Greenspan 1997 153,831 81,433 100,000
Executive Vice President and Chief 1996 -- -- --
Operating Officer(4) 1995 -- -- --
David S. Wisherd 1997 210,866 43,000 --
Executive Vice President, 1996 167,404 8,809 --
Chief Technical Officer and 1995 132,029 64,813 55,000
Chairman of the Board of Directors(5)
Edward A. Supplee, Jr. 1997 173,515 -- 120,000
Executive Vice President, Finance and 1996 138,950 18,388 --
Administration, Chief Financial Officer and 1995 118,428 55,406 5,000
Secretary(6)
Gary R. Gianatasio 1997 112,045 53,000 20,000
Senior Vice President, Business 1996 107,407 13,095 --
Development 1995 96,820 53,775 --
Joseph M. Veni 1997 120,803 31,779 75,000
Senior Vice President, Sales and 1996 65,356 38,516 --
Marketing(7) 1995 78,998 53,434 --
William Zucker 1997 135,503 25,721 --
Vice President, Marketing(8) 1996 46,154 18,750 --
1995 -- -- --
<FN>
- ---------------------
(1) Other than salary and bonus described herein, the Company did not pay the
persons named in the Summary Compensation Table any compensation, including
incidental personal benefits, in excess of 10% of such Named Executive
Officer's salary.
(2) Represents bonuses relating to performance of services for the Company in
Fiscal 1997, some of which was paid in Fiscal 1998.
(3) Mr. Garrettson became President, Chief Executive Officer and director of the
Company in April 1996.
(4) Mr. Greenspan became Executive Vice President, Operations in April 1996 and
was appointed Chief Operating Officer in April 1997.
(5) Mr. Wisherd resigned his position as Chairman of the Board of Directors and
Chief Technical Officer in October 1996. In February 1997, Mr. Wisherd
resigned as Executive Vice President.
(6) Mr. Supplee resigned as Executive Vice President, Finance and
Administration, Chief Financial Officer and Secretary in January 1997.
(7) Mr. Veni joined the Company in April 1, 1992 as Vice President of Sales. He
was named Senior Vice President, Sales and Marketing in April 1996.
(8) Mr. Zucker joined the Company in October 1995 as Vice President of
Engineering. He was named Vice President of Product Line Management in
August 1996 and he became Vice President of Marketing in April 1997.
</FN>
</TABLE>
33
<PAGE>
<TABLE>
OPTION GRANTS IN LAST FISCAL YEAR
The following table provides information concerning each grant of options to
purchase the Company's Common Stock made during the fiscal year ended March 31,
1997 to the Named Executive Officers.
<CAPTION>
POTENTIAL REALIZABLE
VALUE
NUMBER OF % OF TOTAL MINUS EXERCISE PRICE AT
SECURITIES OPTIONS EXERCISE STOCK PRICE APPRECIATION
UNDERLYING GRANTED TO PRICE FOR OPTION TERM(1)
OPTION EMPLOYEES IN PER SHARE EXPIRATION -------------------------
NAME GRANTED(2) FISCAL YEAR (3)(4) DATE 5% 10%
- ------------------------- ------------ -------------- ----------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Garrett A. Garrettson(5) 250,000 12% $ 14.50* 4/17/06 $1,926,406 $5,067,215
Stephen B. Greenspan 80,000 4% $ 21.38 4/17/06 $1,075,410 $2,725,300
20,000 1% $ 14.50 8/7/06 $ 182,379 $ 462,185
David S. Wisherd -- -- -- -- -- --
Edward A. Supplee, Jr.(6) 120,000 6% $ 14.50 1/31/00 $ 322,493 $ 685,492
Gary R. Gianatasio 20,000 1% $ 9.50 10/23/06 $ 119,490 $ 302,811
Joseph M. Veni 50,000 3% $ 14.50 8/7/06 $ 455,948 $1,155,463
25,000 1% $ 9.50 1/15/07 $ 149,363 $ 378,514
William Zucker** -- -- -- -- -- --
<FN>
- ---------------
* See "Certain Transactions."
** See "Compensation Committee Report--Report on Repricing of Options."
(1) Potential realizable value is based on the assumption that the Common Stock
of the Company appreciates at the annual rate shown (compounded annually)
from the date of grant until the expiration of the 10 years option term.
These numbers are calculated based on the requirements promulgated by the
Commission and do not reflect the Company's estimate of future stock price
growth.
(2) Except as noted, all options shown granted in fiscal 1997 are exercisable
starting one year after the date of grant, with 1/48th% of the shares
becoming exercisable each at the end of every month thereafter, with full
vesting occurring on the fourth anniversary of the date of grant. Under the
1992 Stock Plan, the Board of Directors retains the discretion to modify the
terms, including the price, of outstanding options.
(3) Options were granted at an exercise price equal to the fair market value of
the Company's Common Stock, as determined by reference to the closing price
reported on the Nasdaq National Market on the date of grant, or as
determined by the Board of Directors prior to the Company's securities being
traded on the Nasdaq National Market.
(4) Exercise price and tax withholding obligations may be paid in cash,
promissory note, by delivery of already-owned shares subject to certain
conditions, or pursuant to a cashless exercise procedure under which the
optionee provides irrevocable instructions to a brokerage firm to sell the
purchased shares and to remit to the Company, out of the sale proceeds, an
amount equal to the exercise price plus all applicable withholding taxes.
(5) Mr. Garrettson's nonqualified options were not granted from the 1992 Stock
Plan, and were exercisable as to 25% of the shares subject to the options on
April 23, 1997 and will be exercisable as to 1/48th of such shares at the
end of every month thereafter.
(6) Mr. Supplee resigned as the Company's Chief Financial Executive in January
1997. As a result, 90,000 shares of the 120,000 share option grant Mr.
Supplee received in Fiscal 1997 terminated and the shares were returned to
the 1992 Stock Plan.
</FN>
</TABLE>
34
<PAGE>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION VALUES
<TABLE>
The following table sets forth certain information regarding the exercise of
stock options during fiscal 1997 and the value of options held as of March 31,
1997 by the Named Executive Officers.
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
SHARES OPTIONS AT IN-THE-MONEY OPTIONS AT
ACQUIRED VALUE MARCH 31, 1997(#) MARCH 31, 1997($)(2)
ON REALIZED ----------------------------- -----------------------------
NAME EXERCISE (1) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ------------------------- ---------- ----------- ------------- --------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Garrett A. Garrettson ... -- $ -- -- 250,000 $ -- $ --
David S. Wisherd ......... 5,836 $ 56,386 37,500 364 $ -- $ 1,456
Stephen B. Greenspan .... -- $ -- -- 100,000 $ -- $ --
Edward A. Supplee, Jr.(3) 21,572 $ 190,945 32,687 -- $ 23,469 $ --
Gary R. Gianatasio ....... 1,095 $ 26,236 3,385 20,312 $ 35,621 $ 33,276
Joseph M. Veni ........... 2,000 $ 46,150 10,101 77,468 $ 26,838 $ 40,412
William Zucker ........... -- $ -- -- 50,000 $ -- $ --
<FN>
- ---------------
(1) Market value of the Company's Common Stock at the exercise date minus the
exercise price.
(2) Market value of the Company's Common Stock at fiscal year-end minus the
exercise price.
(3) 90,000 shares of Mr. Supplee's stock options terminated upon his resignation
from the Company in January 1997.
</FN>
</TABLE>
EMPLOYMENT CONTRACTS AND CHANGE-IN-CONTROL ARRANGEMENTS
The Company has entered into employment agreements with Garrett A. Garrettson
and Stephen B. Greenspan (the "Employees"). The Employees are eligible to
participate in the Company's employee benefit plans and executive compensation
programs.
In April 1996, the Company appointed Garrett A. Garrettson as the Company's
President, Chief Executive Officer and director of the Company. Mr. Garrettson
entered into an employment agreement with the Company pursuant to which he
receives an annual base salary of $275,000 and a one-time signing bonus of
$25,000. The agreement provides for additional variable compensation in the
target amount of $100,000 per year starting in fiscal year 1997. The Company
also granted Mr. Garrettson options to purchase 250,000 shares of Common Stock.
These shares are subject to vesting over four years and were priced at the fair
market value of the Company's Common Stock at the time of grant in April 1996.
See "Certain Transactions." The agreement also provides that in the event that
Mr. Garrettson's employment is terminated by the Company, for any reason other
than misconduct, the Company will continue Mr.
Garrettson's base salary for nine months.
In April 1996, in connection with his acceptance of employment with the
Company, Stephen B. Greenspan, Chief Operating Officer, entered into an
employment agreement with the Company pursuant to which he is to receive an
annual base salary of $175,000. The agreement provides for additional variable
compensation in the target amount of $100,000 per year starting in fiscal year
1997. The Company also granted Mr. Greenspan options to purchase 80,000 shares
of Common Stock. These shares are subject to vesting over four years and are
priced at the fair market value of the Common Stock at the time of grant. The
agreement also provides that in the event that Mr. Greenspan's employment is
terminated by the Company, for any reason other than misconduct, the Company
will continue Mr. Greenspan's base salary for six months. Mr. Greenspan was
granted an additional option to purchase 10,000 shares of the Company's Common
Stock in August 1996 at an exercise price of $14.50 per share and subject to
four years vesting.
Upon the termination of the Employees' employment with the Company for any
reason whatsoever, including a Constructive Termination (defined below), and
other than a voluntary termination or termination for Cause (defined below) or
disability or death, the Employees are entitled to a severance payment at the
then applicable base salary rate, and payment of COBRA benefits for nine months
in the
35
<PAGE>
case of Mr. Garrettson and six months in the case of Mr. Greenspan. In addition,
the Employees will have three months from the date of such termination of
employment described above, or if terminated due to a disability or death, in
which to exercise their stock options. Upon the termination of the Employee's
employment with the Company due to a disability, the Employee is entitled to a
severance payment equal to the amount by which such Employee's then applicable
base salary rate exceeds all disability payments under the Company's insurance
plans and any state or federal disability plans. Such severance payment shall be
made for nine months for Mr. Garrettson and six months for Mr. Greenspan. The
Employee shall not be entitled to severance payments if his employment is
voluntarily terminated or terminated for cause or by death. Constructive
Termination means a material reduction in salary or benefits not agreed to by
the Employee, or a material change in the Employee's responsibilities, or a
requirement to relocate more than 25 miles. Termination for "Cause" means
termination of employment as a result of (i) an act or acts of dishonesty
undertaken by the Employee and intended to result in substantial gain or
personal enrichment at the expense of the Company, (ii) willful, deliberate and
persistent failure by the Employee to perform his duties, or (iii) the
Employee's conviction of a felony.
In May 1997 the Company appointed Bruce R. Wright as the Company's Executive
Vice President, Finance and Administration, Chief Financial Officer and
Secretary. Mr. Wright entered into an Employment Offer Letter with the Company
pursuant to which he is to receive an annual base salary of $200,000. Mr. Wright
is also eligible for up to $100,000 of variable compensation per year in
connection with the Company's Executive Variable Compensation Plan. Mr. Wright
received an option to acquire 100,000 shares of the Company's Common Stock.
These shares are subject to vesting over four years and are priced at the fair
market value of the Company's Common Stock at the date of grant.
In the event there is a change in control of the Company in which
substantially all the Company's assets are acquired, Mr. Garrettson's, Mr.
Greenspan's and Mr. Wright's options will vest in full. For purposes of the
options held by Messrs. Garrettson, Greenspan and Wright, a change of control is
defined to mean the occurrence of any of the following events: (i) any "person"
or "group" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) 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 50% or more of the
total voting power represented by the Company's then outstanding voting
securities; (ii) a change in the composition of the Board of Directors of the
Company occurring within a two-year period, as a result of which fewer than a
majority of the directors are Incumbent Directors, where "Incumbent Directors"
means directors who either (A) are directors of the Company as of the date of
grant of the option or (B) are elected, or nominated for election, to the Board
of Directors of the Company with the affirmative votes of at least a majority of
the Incumbent Directors at the time of such election or nomination (but shall
not include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company); or (iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or dispostion by the Company of all or substantially all
the Company's assets (other than to a subsidiary or subsidiaries). The Proposed
Reincorporation of the Company set forth in Proposal Two would not trigger a
change in control pursuant to Messrs. Garrettson, Greenspan and Wright's option
agreements.
COMPENSATION OF DIRECTORS
Non-employee directors currently receive an quarterly retainer of $3,000, a
fee of $2,000 for attendance at each general Board of Directors meeting, and
$1,000 for attendance at each committee meeting for services provided in that
capacity and are reimbursed for out-of-pocket expenses incurred in connection
with attendance at meetings of the Board of Directors and committees of the
Board. The Company's Director Plan provides that options may be granted to
non-employee directors of the Company who do
36
<PAGE>
not represent shareholders holding more than 1% of the Company's outstanding
Common Stock pursuant to an automatic nondiscretionary grant mechanism. Each
Outside Director is automatically granted an Option to purchase 5,000 shares
(the "First Option") on the date on which such person first becomes an Outside
Director. After the First Option has been granted to an Outside Director, such
Outside Director is thereafter automatically granted an Option to purchase 1,250
shares at the next meeting of the Board of Directors following the Annual
Meeting of Shareholders in each year, if, on such date, he shall have served on
the Board for at least six (6) months. Should Proposal Four, the amendments to
the Director Plan be approved by the Company's shareholders, the number of
shares of the annual grant will be increased to 5,000 shares effective the first
meeting of the Board of Directors after the Annual Meeting of Shareholders. The
"First Option" granted shall be exercisable only while the Outside Director
remains a Director with the Company, and vests in installments cumulatively as
to 25% of the Shares subject to the Option on each anniversary of its date of
grant. Subsequent option grants are exercisable only while the Outside Director
remains a Director of the Company, and vest as to 8.34% of the Shares subject to
the Option on each monthly anniversary of its date of grant. Should Proposal
Four, the amendments to the Director Plan be approved by the Company's
shareholders, the future annual grants of options pursuant to the Director Plan
will vest at a rate of 2.08% per month.
REPORT OF THE BOARD OF DIRECTORS ON EXECUTIVE COMPENSATION
During the fiscal year ended March 31, 1997 the Company's executive
compensation program was approved by the Board of Directors as a whole rather
than the Compensation Committee of the Board of Directors. The following is the
report of the Board of Directors with respect to the compensation paid to the
Company's executive officers during Fiscal 1997. Actual compensation earned
during the fiscal year by the Named Executive Officers is shown in the Summary
Compensation Table above.
Compensation Philosophy
The Company's philosophy in setting its compensation policies for executive
officers is to maximize shareholder value over time. The primary goal of the
Company's executive compensation program is therefore to closely align the
interests of the executive officers with those of the Company's shareholders. To
achieve this goal the Company attempts to (i) offer compensation opportunities
that attract and retain executives whose abilities are critical to the long-term
success of the Company, motivate individuals to perform at their highest level
and reward outstanding achievement, (ii) maintain a significant portion of the
executive's total compensation at risk, tied to achievement of financial,
organizational and management performance goals, and (iii) encourage executives
to manage from the perspective of owners with an equity stake in the Company.
The compensation program for the Company's executive officers consists of the
following components:
o Base Salary
o Quarterly and Annual Cash Incentives
o Long-Term Stock Option Incentives
Base Salary
The Board of Directors reviewed and approved Fiscal 1997 base salaries for
the Chief Executive Officer and other Named Executive Officers at the beginning
of the fiscal year. Base salaries were established by the Board based upon
competitive compensation data, an executive's job responsibilities, level of
experience, individual performance and contribution to the business. In
addition, the level of base salary of Mr. Garrettson, the Chief Executive
Officer, and Mr. Greenspan were governed by employment agreements entered into
with such executives in connection with their original employment with the
Company, and such employment agreements were reviewed and approved by the Board
of Directors. The terms of these employment agreements are described in the
section entitled, "Employment Contracts and Change-In-Control Arrangements."
Officer salaries have been targeted at or above the average rates paid by
competitors to enable the Company to attract, motivate, reward and retain highly
skilled executives. In order to evaluate the Company's competitive posture in
the industry, the Board reviewed and analyzed
37
<PAGE>
the compensation packages, including base salary levels, offered by other high
technology companies. The competitive information was obtained from surveys
prepared by national consulting companies or industry associations (e.g.,
Radford Associates, Coopers & Lybrand and the American Electronics Association).
The surveys include, but are not limited to, data from all industries
represented in the Standard & Poor's Communication Equipment Manufacturer Index,
the "line of business index" used in the stock performance graph set forth
below. See "Performance Graph." In making base salary decisions, the Board
exercised its discretion and judgment based upon these factors. No specific
formula was applied to determine the weight of each factor. The Company hired
Mr. Garrettson in March 1996 and negotiated the terms of his employment with him
at that time. Mr. Garrettson commenced his employment with the Company in April
1996. The Fiscal 1997 base salary set forth in Mr. Garrettson's employment
agreement, $275,000 per year with a $25,000 signing bonus, stemmed from that
negotiation and reflects the Board of Directors' policy of fixing compensation
at or above the average rates paid by its competitors.
Quarterly and Annual Cash Incentives
Quarterly and annual incentive bonuses for executive officers are intended to
reflect the Board's belief that a significant portion of the compensation of
each executive officer should be contingent upon the performance of the Company,
as well as the individual contribution of each executive officer. To carry out
this philosophy, the Company has implemented a Variable Compensation Bonus Plan,
which compensates officers in the form of quarterly and annual cash bonuses. At
the beginning of fiscal 1997, the Board of Directors established target bonuses
for each executive officer as a percentage of the officer's base salary. The
target level of bonuses which the executive officers were eligible to receive
varied from 25% to 60% of base salaries. The Variable Compensation Bonus Plan is
intended to motivate and reward executive officers by directly linking the
amount of any cash bonus to specific Company-based performance targets and
specific individual-based performance targets. The Named Executive Officers,
including Mr. Garrettson and Mr. Greenspan, must successfully achieve these
performance targets which are submitted by management to the Board for its
evaluation and approval at the beginning of each fiscal quarter. The
Company-based performance goals are tied to different indicators of Company
performance, such as achievement of specific levels of orders, sales and pre-tax
profits. These Company-based performance goals vary from quarter to quarter, may
be subjective in nature and are competitively sensitive to the Company's
business and operations. The individual's performance goals are tied to
different indicators of the individual Named Executive Officer's performance,
such as having received an order from a specific customer, achieved an R&D
project milestone, or achieved a desired on-time customer delivery. The Board
evaluates the completion of the Company and individual goals and approves a
performance rating relative to the goals so completed. This scoring is
subjective and is influenced by the Board's perception of the importance of the
various corporate and individual goals. At the end of the fiscal year, when
determining the bonus payment for the fourth fiscal quarter, the Board considers
the overall performance of the Company and each individual during the entire
fiscal year, including the fourth quarter. Actual bonuses awarded during Fiscal
1997 ranged from 8% to 57% of the Named Executive Officers' base salaries.
Pursuant to his employment agreement with the Company, Mr. Garrettson was
eligible to receive variable compensation in Fiscal 1997 targeted at $100,000,
to be paid quarterly based upon the attainment of Company and mutually
agreed-upon individual goals. More specifically, the Board of Directors
evaluated Mr. Garrettson's performance by assigning certain weights to targets
for quarterly results including revenue, earnings per share and return on net
assets. The Board of Directors did not award Mr. Garrettson any variable
compensation in the first three quarters of Fiscal 1997, as the Company did not
meet its performance targets. In the fourth fiscal quarter, based on the
Company's achievement of the performance targets set forth above and Mr.
Garrettson's performance during the entire fiscal year, the Board of Directors
granted Mr. Garrettson variable compensation of $21,470, or approximately 8.6%
of his base salary.
Long-Term Stock Option Incentives
The Board provides the Company's Named Executive Officers with long-term
incentive compensation through grants of stock options under the Company's 1992
Stock Plan. The Board believes that stock options provide the Company's Named
Executive Officers with the opportunity to purchase and maintain an equity
interest in the Company and to share in the appreciation of the value of the
Company's
38
<PAGE>
Common Stock. The Board believes that stock options directly motivate an
executive to maximize long-term shareholder value. The options also utilize
vesting periods that encourage key executives to continue in the employ of the
Company. With the exception of the regrant of options to Mr. Garrettson noted
below (which was at a price above then-current fair market value), all options
granted to executive officers to date have been granted at the fair market value
of the Company's Common Stock on the date of grant. The Board considers the
grant of each option subjectively, reviewing factors such as the individual
performance of the Named Executive Officer and the anticipated contribution of
the Named Executive Officer to the attainment of the Company's long-term
strategic performance goals. Long-term incentives granted in prior years are
also taken into account. The Company negotiated the terms of Mr. Garrettson's
employment with him in March 1996. The agreement reached included two initial
option grants, of 18,712 shares and 231,288 shares, for a total of 250,000
shares of the Company's Common Stock on April 17, 1996 at an exercise price of
$21.375 per share. Such initial grants reflect the Board of Directors' policy of
fixing compensation, including long-term incentive compensation, at or above the
average rates paid by its competitors. These options vested at the rate of
one-quarter of the shares subject to the options on April 23, 1997 and the
remaining shares vest monthly at a rate of 1/48 of the total of each grant per
month. The Board of Directors believes that this vesting structure provides
appropriate alignment of Mr. Garrettson's interests with those of the Company's
shareholders while also providing him with incentives to remain at the Company.
See "Certain Transactions."
SECTION 162(m)
The Board has considered the potential future effects of Section 162(m) of
the Internal Revenue Code on the compensation paid to the Company's executive
officers. Section 162(m) disallows a tax deduction for any publicly-held
corporation for individual compensation exceeding $1.0 million in any taxable
year for any of the Named Executive Officers, unless compensation is
performance-based. The Company has adopted a policy that, where reasonably
practicable, the Company will seek to qualify the variable compensation paid to
its executive officers for an exemption from the deductibility limitations of
Section 162(m).
REPORT ON REPRICING OF OPTIONS
In August 1996, the Board of Directors of the Company determined that the
purposes of the 1992 Stock Plan were not being adequately achieved with respect
to those employees holding options with exercise prices greater than the
then-current market value of the Company's Common Stock and that it was
essential to the best interests of the Company and the Company's shareholders
that the Company retain and motivate such employees. The Board of Directors
further determined that it would be in the best interests of the Company and the
Company's shareholders to provide such optionees the opportunity to exchange
their options for options with exercise prices equal to the then-current market
value of the Company's Common Stock. On August 7, 1996, upon approval by the
Board of Directors of the Company, the Company offered certain employees who
were holders of outstanding options under the 1992 Stock Plan at exercise prices
in excess of $14.50 per share the opportunity to exchange such options for new
stock options at an exercise price of $14.50 per share, the fair market value of
the Company's stock on the close of business for the most recent trading day
prior to that date. Any holder accepting such offer was required to extend the
vesting period of existing unvested shares by 12 months (vested options remained
vested) and to refrain from exercising any repriced options until August 7,
1997. Two hundred eighty- seven employees of the Company were eligible to
participate in the repricing and those employees' existing options had an
average price of $22.89 per share prior to the repricing. Of such eligible
employees, 251 participated in the repricing, including the Named Executive
Officer noted in the table on the following page.
39
<PAGE>
The following table sets forth certain information regarding the
participation of each of the Named Executive Officers in the Company's repricing
of options described above.
<TABLE>
TEN-YEAR OPTION REPRICING
<CAPTION>
LENGTH OF
NUMBER OF MARKET PRICE EXERCISE ORIGINAL
SECURITIES OF STOCK AT PRICE AT OPTION TERM
UNDERLYING TIME OF TIME OF REMAINING AT
OPTIONS REPRICING OR REPRICING OR DATE OF
REPRICED OR AMENDMENT AMENDMENT NEW EXERCISE REPRICING OR
NAME AND PRINCIPAL POSITION DATE AMENDED ($/SH) ($/SH) PRICE ($/SH) AMENDMENT
- --------------------------- ---------- ------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
William Zucker ............. 08/07/96 27,584 $14.50 $21.25 $14.50 9.2 yrs.
Vice President, Marketing 08/07/96 22,416 $14.50 $21.25 $14.50 9.2 yrs.
</TABLE>
Respectfully submitted by:
Garrett A. Garrettson Martin Cooper
Robert C. Wilson James A. Cole
Eric A. Young
40
<PAGE>
PERFORMANCE GRAPH
Set forth below is a line graph comparing the annual percentage change in the
cumulative return to the shareholders of the Company's Common Stock with the
cumulative return of the Standard & Poor's 500 Index and of the Standard &
Poor's Communication Equipment Manufacturer Index for the period commencing
August 3, 1994 (the date of the Company's initial public offering) and ending on
March 31, 1997. Returns for the indices are weighted based on market
capitalization at the beginning of each fiscal year.
[DESCRIPTION OF GRAPH: line graph showing the returns for the three items:
Spectrian Corporation's Common Stock, the S&P 500 and the S&P Communications
Equipment Index. The date points are as follows:
8/03/94 3/31/95 3/31/96 3/31/97
Spectrian Corporation 100 236 175 86
S&P 500 Index 100 111 147 176
S&P Communications Equipment Index 100 142 205 242]
- -------------
(1) The graph assumes that $100 was invested on August 3, 1994 in the Company's
Common Stock and in the Standard & Poor's 500 Index and in the Standard &
Poor's Communication Equipment Manufacturer Index and that all dividends
were reinvested. No dividends have been declared or paid on the Company's
Common Stock. Shareholder returns over the indicated period should not be
considered indicative of future shareholder returns.
The information contained above under the captions "Report of the Board of
Directors on Executive Compensation" and "Performance Graph" shall not be deemed
to be "soliciting material" or to be "filed" with the Securities and Exchange
Commission, nor shall such information be incorporated by reference into any
future filing under the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, except to the extent that the Company
specifically incorporates it by reference into such filing.
SECTION 16 BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") requires the Company's executive officers and directors, and
persons who own more than ten percent of a registered class of the Company's
equity securities to file reports of ownership and changes in ownership with the
Securities and Exchange Commission ("Commission") and the National Association
of Securities Dealers, Inc. Executive officers, directors and greater than ten
percent shareholders are required by Commission regulation to furnish the
Company with copies of all Section 16(a) forms they file. Based solely in its
review of the copies of such forms received by it, or written representations
from certain reporting persons, the Company believes that, during Fiscal 1997
all executive officers and directors of the Company complied with all applicable
filing requirements.
41
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CERTAIN TRANSACTIONS
On November 7, 1996, Edward A. Supplee, Jr., the Company's Executive Vice
President, Finance and Administration, Chief Financial Officer and Secretary,
entered into a Letter Agreement with the Company regarding his resignation. In
connection with Mr. Supplee's Agreement to continue to serve as the Company's
Chief Financial Officer until January 31, 1997, Mr. Supplee received the
following compensation in addition to his regular base salary and benefits until
January 31, 1997 whose aggregate total value cannot be estimated at this time
but may be in excess of $60,000: (i) medical and life insurance benefits from
February 1997 through the earlier of July 1997 or until Mr. Supplee obtained a
full-time position elsewhere; (ii) acceleration of vesting of options to
purchase approximately 30,000 shares of the Company's Common Stock; and (iii)
the extension of the time period for Mr. Supplee to exercise all vested options
to purchase the Company's Common Stock to January 31, 2000 from the 90 day post-
employment period set forth in the Company's Option Agreements with Mr. Supplee.
On August 27, 1996, the Board of Directors of the Company authorized the
reduction of the exercise price of options to purchase 250,000 shares of the
Company's Common Stock granted to Mr. Garrettson in April 1996 in connection
with his employment agreement. Mr. Garrettson's hiring package included an
agreement by the Company to protect the value of Mr. Garrettson's options from a
significant decrease in the price of the Company's common stock in the period
following his hiring by the Company. Mr. Garrettson's April 1996 options had
exercise prices of $21.375 per share, and such exercise price was substantially
higher than the $13.75 per share market price of the Company's Common Stock at
the time of the reissuance. Mr. Garrettson's April 1996 options were exchanged
as of August 27, 1997 for nonstatutory options with exercise prices of $14.50
per share. The vesting periods and expiration dates of Mr. Garrettson's options
were unchanged as a result of the reissuance.
The Company believes that all of the transactions set forth above were made
on terms no less favorable to the Company than could have been obtained from
unaffiliated third parties. All future transactions, including loans, between
the Company and its officers, directors, principal shareholders and their
affiliates will be approved by a majority of the Board of Directors, including a
majority of the independent and disinterested outside directors, and will
continue to be on terms no less favorable to the Company than could be obtained
from unaffiliated third parties.
DIVIDEND POLICY
The Company has not declared or paid cash dividends on its Common Stock and
does not anticipate paying cash dividends in the foreseeable future.
DEADLINE FOR RECEIPT OF SHAREHOLDER PROPOSALS
Proposals of shareholders of the Company that are intended to be presented by
such shareholders at the Company's 1998 Annual Meeting of Shareholders must be
received by the Company no later than April 15, 1998 in order that they may be
considered for inclusion in the proxy statement and form of proxy relating to
that meeting.
ADJOURNMENT OF THE ANNUAL MEETING
In the Event that there are not sufficient votes to approve the
Reincorporation Proposal at the time of the Annual Meeting, such proposal could
not be approved unless the Annual Meeting were adjourned in order to permit
further solicitation of proxies from holders of the Company's Common Stock.
Proxies that are being solicited by the Company's Board grant discretionary
authority to vote for any such adjournment, if necessary. If it is necessary to
adjourn the Annual Meeting, and the adjournment is for a period of less than 45
days, no notice of the time and place of the adjourned meeting is required to be
given to the shareholders other than an announcement of such time and place at
the Annual Meeting. A majority of the shares represented and voting at the
Annual Meeting is required to approve such adjournment, regardless of whether
there is a quorum present at the Annual Meeting.
42
<PAGE>
OTHER MATTERS
The Company knows of no other matters to be submitted at the meeting. If any
other matters properly come before the meeting, it is the intention of the
persons named in the enclosed form of Proxy to vote the shares they represent as
the Board of Directors may recommend.
THE BOARD OF DIRECTORS
Dated: June 26, 1997
43
<PAGE>
APPENDIX A
AGREEMENT AND PLAN OF MERGER
OF SPECTRIAN CORPORATION
A DELAWARE CORPORATION,
AND
SPECTRIAN CORPORATION
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of August , 1997 (the "Agreement")
is between Spectrian Corporation, a Delaware corporation ("Spectrian Delaware"),
and Spectrian Corporation, a California corporation ("Spectrian California").
Spectrian Delaware and Spectrian California are sometimes referred to herein as
the "Constituent Corporations."
RECITALS
A. Spectrian Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 25,000,000
shares, $.001 par value, of which 20,000,000 shares are designated "Common
Stock," and 5,000,000 shares are designated "Preferred Stock." Of the Preferred
Stock, 20,000 shares are designated Series A Participating Preferred in
connection with Spectrian California's Shareholders' Rights Plan. The remaining
shares of Preferred Stock of Spectrian Delaware is undesignated as to series,
rights, preferences, privileges or restrictions. As of August , 1997, 100 shares
of Common Stock were issued and outstanding, all of which are held by Spectrian
California, and no shares of Preferred Stock were issued and outstanding.
B. Spectrian California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 25,000,000
shares, no par value, of which 20,000,000 are designated "Common Stock," and
5,000,000 shares are designated "Preferred Stock." Of the Preferred Stock,
20,000 shares of Preferred Stock are designated Series A Participating Preferred
and the remaining shares of Preferred Stock of Spectrian California is
undesignated as to series, rights, preferences, privileges or restrictions. As
of June 5, 1997, 8,307,161 shares of Common Stock were issued and outstanding,
and no shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of Spectrian California has determined that, for
the purpose of effecting the reincorporation of Spectrian California in the
State of Delaware, it is advisable and in the best interests of Spectrian
California and its shareholders that Spectrian California merge with and into
Spectrian Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of Spectrian Delaware and Spectrian
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective shareholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Spectrian Delaware and Spectrian California hereby agree, subject
to the terms and conditions hereinafter set forth, as follows:
I
MERGER
1.1. Merger. n accordance with the provisions of this Agreement, the Delaware
General Corporation Law and the California General Corporation Law, Spectrian
California shall be merged with and into Spectrian Delaware (the "Merger"), the
separate existence of Spectrian California shall cease and Spectrian Delaware
shall survive the Merger and shall continue to be governed by the laws of the
State
A-1
<PAGE>
of Delaware, and Spectrian Delaware shall be, and is herein sometimes referred
to as, the "Surviving Corporation," and the name of the Surviving Corporation
shall be Spectrian Corporation.
1.2. Filing and Effectiveness. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and the Merger was adopted and approved by the
shareholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
General Corporation Law on May , 1997 and July 31, 1997, respectively;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed, acknowledged and
certified counterpart of this Agreement meeting the requirements of the
Delaware General Corporation Law shall have been filed with the Secretary of
State of the State of Delaware; and
(d) An executed Certificate of Merger or an executed counterpart of this
Agreement meeting the requirements of the California General Corporation Law
shall have been filed with the Secretary of State of the State of California.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.3. Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Spectrian California shall cease and Spectrian Delaware,
as the Surviving Corporation, (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date of the Merger, (ii) shall be subject to all actions previously taken by its
and Spectrian California's Boards of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of Spectrian
California in the manner as more fully set forth in Section 259 of the Delaware
General Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of Spectrian California in the same manner as
if Spectrian Delaware had itself incurred them, all as more fully provided under
the applicable provisions of the Delaware General Corporation Law and the
California General Corporation Law.
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1. Certificate of Incorporation. The Certificate of Incorporation of
Spectrian Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2. Bylaws. The Bylaws of Spectrian Delaware as in effect immediately prior
to the Effective Date of the Merger shall continue in full force and effect as
the Bylaws of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.3. Directors and Officers. The directors and officers of Spectrian
California immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III
MANNER OF CONVERSION OF STOCK
3.1. Spectrian California Common Stock. Upon the Effective Date of the
Merger, each share of Spectrian California Common Stock, no par value, issued
and outstanding immediately prior thereto
A-2
<PAGE>
shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be changed and
converted into and exchanged for one fully paid and nonassessable share of
Common Stock, $.001 par value, of the Surviving Corporation.
3.2. Spectrian California Options and Stock Purchase Rights. Upon the
Effective Date of the Merger, the Surviving Corporation shall assume and
continue the stock option plans (including without limitation the 1994 Stock
Option Plan and the 1994 Director Option Plan) and all other employee benefit
plans (including without limitation the 1994 Employee Stock Purchase Plan) of
Spectrian California. Each outstanding and unexercised option or other right to
purchase or security convertible into Spectrian California Common Stock shall
become an option or right to purchase or a security convertible into the
Surviving Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each share of Spectrian California Common Stock
issuable pursuant to any such option, stock purchase right or convertible
security, on the same terms and conditions and at an exercise price per share
equal to the exercise price applicable to any such Spectrian California option,
stock purchase right or convertible security at the Effective Date of the
Merger. Except as set forth in Section 3.3, there are no options, purchase
rights for or securities convertible into Preferred Stock of Spectrian
California.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights or
convertible securities equal to the number of shares of Spectrian California
Common Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 Spectrian California Preferred Share Purchase Rights. Upon the Effective
Date of the Merger, the Surviving corporation shall assume and convert the
Series A Preferred Stock Purchase Rights declared and issued by Spectrian
California on March 21, 1997 and the rights and obligations of Spectrian
California pursuant to the Amended and Restated Preferred Share Rights Agreement
dated as of January 15, 1997 by and among Spectrian California and Chase Mellon
Shareholder Services LLC (the "Rights Agreement"). The Merger shall not be
deemed a "Triggering Event" as such term is defined in the Rights Agreement.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of stock purchase rights and convertible
securities equal to the number of shares of Spectrian California Common Stock so
reserved immediately prior to the Effective Date of the Merger.
3.4 Spectrian Delaware Common Stock. Upon the Effective Date of the Merger,
each share of Common Stock, $.001 par value, of Spectrian Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by Spectrian Delaware, the holder of such shares or any other person,
be canceled and returned to the status of authorized but unissued shares.
3.5 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of Spectrian California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to Chase Mellon Shareholder Services, Inc. as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of the
Surviving Corporation's Common Stock into which such holders' shares of
Spectrian California Common Stock were converted as herein provided. Unless and
until so surrendered, each outstanding certificate theretofore representing
shares of Spectrian California Common Stock shall be deemed for all purposes to
represent the number of whole shares of the Surviving Corporation's Common Stock
into which such shares of Spectrian California Common Stock were converted in
the Merger.
The registered owner on the books and records of the Surviving Corporation or
the Exchange Agent of any shares of stock represented by such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of Common Stock of the Surviving Corporation represented by such
outstanding certificate as provided above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of
A-3
<PAGE>
Spectrian California so converted and given in exchange therefor, unless
otherwise determined by the Board of Directors of the Surviving Corporation in
compliance with applicable laws.
If any certificate for shares of Spectrian Delaware stock is to be issued in
a name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to Spectrian Delaware or the Exchange Agent any transfer or
other taxes payable by reason of the issuance of such new certificate in a name
other than that of the registered holder of the certificate surrendered or
establish to the satisfaction of Spectrian Delaware that such tax has been paid
or is not payable.
IV
GENERAL
4.1. Covenants of Spectrian Delaware. Spectrian Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California General Corporation Law;
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by Spectrian Delaware of all of the franchise
tax liabilities of Spectrian California;
(c) Execute concurrently Recourse Obligations Guaranty and the
Environmental Indemnity pursuant to Section 1.11(A)(v) of the March 1997 Deed
of Trust by Gibraltar Court Associates LLC to Investors Bancor for the
benefit of Fremont Loan & Investment; and
(d) Take such other actions as may be required by the California General
Corporation Law.
4.2. Further Assurances. From time to time, as and when required by Spectrian
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of Spectrian California such deeds and other instruments, and there
shall be taken or caused to be taken by Spectrian Delaware and Spectrian
California such further and other actions, as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by Spectrian
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Spectrian
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Spectrian Delaware are fully authorized in the name
and on behalf of Spectrian California or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
4.3. Abandonment. At any time before the filing of this Agreement with the
Secretary of State of the State of Delaware, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by the Board of
Directors of either Spectrian California or Spectrian Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of Spectrian
California or by the sole stockholder of Spectrian Delaware, or by both.
4.4. Amendment. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the shareholders of either Constituent Corporation
shall not: (1) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all or
any of the shares of any class or series thereof of such Constituent
Corporation, (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger, or (3) alter or change
any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of any class of shares or series thereof of
such Constituent Corporation.
4.5. Registered Office. The registered office of the Surviving Corporation in
the State of Delaware is located at Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, Delaware 19801, County of New Castle, and The
Corporation Trust Company is the registered agent of the Surviving Corporation
at such address.
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<PAGE>
4.6. Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 350 West Java Drive,
Sunnyvale, California 94089 and copies thereof will be furnished to any
shareholder of either Constituent Corporation, upon request and without cost.
4.7. Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8. Counterparts. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, this Agreement, having first been approved by resolutions
of the Boards of Directors of Spectrian Delaware and Spectrian California, is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
SPECTRIAN CORPORATION
a Delaware corporation
By:
----------------------------
Garrett A. Garrettson,
President and Chief Executive Officer
ATTEST:
---------------------------------------------
Bruce R. Wright, Executive Vice President,
Finance & Administration, Chief Financial
Officer and Secretary
SPECTRIAN CORPORATION
a California corporation
By:
----------------------------
Garrett A. Garrettson,
President and Chief Executive Officer
ATTEST:
---------------------------------------------
Bruce R. Wright,
Executive Vice President, Finance &
Administration, Chief Financial Officer
and Secretary
A-5
<PAGE>
SPECTRIAN CORPORATION
(CALIFORNIA CORPORATION)
OFFICERS' CERTIFICATE
Garrett A. Garrettson and Bruce R. Wright certify that:
1. They are the President and the Secretary, respectively, of Spectrian
Corporation, a corporation organized under the laws of the State of California.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock". There are authorized 20,000,000 shares of Common
Stock and 5,000,000 shares of Preferred Stock. Of the Preferred Stock, 20,000
shares of Preferred Stock is designated Series A Participating Preferred and the
remaining shares of Preferred Stock are undesignated as to series, rights,
preferences or restrictions.
3. There were 8,307,161 shares of Common Stock, and no shares of Preferred
Stock, outstanding as of the record date (the "Record Date") of the
shareholders' meeting at which the Agreement and Plan of Merger attached hereto
(the "Merger Agreement") was approved. All shares of Common stock outstanding
were entitled to vote on the merger.
4. The principal terms of the Merger Agreement were approved by the Board of
Directors and by the vote of a number of shares of each class of stock which
equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to be
cast by holders of Common Stock outstanding as of the Record Date, voting as a
single class.
6. Garrett A. Garrettson and Bruce R. Wright further declare under penalty of
perjury under the laws of the State of California that each has read the
foregoing certificate and knows the contents thereof and that the same is true
of their own knowledge.
Executed in Sunnyvale, California on August , 1997.
------------------------------------
Garrett A. Garrettson,
Chief Executive Officer and President
------------------------------------
Bruce R. Wright,
Executive Vice President, Finance &
Administration, Chief Financial Officer
and Secretary
A-6
<PAGE>
SPECTRIAN CORPORATION
(SURVIVING CORPORATION)
OFFICERS' CERTIFICATE
Garrett A. Garrettson and Bruce R. Wright certify that:
1. They are the President and the Secretary, respectively, of Spectrian
Corporation, a corporation organized under the laws of the State of Delaware.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock". There are authorized 20,000,000 shares of Common
Stock and 5,000,000 shares of Preferred Stock. Of the Preferred Stock, 20,000
shares of Preferred Stock is designated Series A Participating Preferred and the
remaining shares of Preferred Stock are undesignated as to series, rights,
preferences or restrictions.
3. There were 100 shares of Common Stock outstanding and entitled to vote on
the Agreement and Plan of Merger attached hereto (the "Merger Agreement"). There
were no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the Board of
Directors and by the vote of a number of shares of each class of stock which
equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to be
cast by holders of outstanding shares of Common Stock.
6. Garrett A. Garrettson and Bruce R. Wright further declare under penalty of
perjury under the laws of the State of Delaware that each has read the foregoing
certificate and knows the contents thereof and that the same is true of their
own knowledge.
Executed in Sunnyvale, California on August , 1997.
---------------------------------------
Garrett A. Garrettson,
Chief Executive Officer and President
----------------------------------------
Bruce R. Wright,
Executive Vice President, Finance &
Administration, Chief Financial Officer
and Secretary
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<PAGE>
APPENDIX B
CERTIFICATE OF INCORPORATION
OF
SPECTRIAN CORPORATION
FIRST: The name of the Corporation is Spectrian Corporation (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, zip code 19801. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The Corporation is authorized to issue two classes of stock to be
designated respectively Common Stock and Preferred Stock. The total number of
shares of all classes of stock which the Corporation has authority to issue is
Twenty-five Million (25,000,000), consisting of Twenty Million (20,000,000)
shares of Common Stock, $0.001 par value (the "Common Stock"), and Five Million
(5,000,000) shares of Preferred Stock, $0.001 par value (the "Preferred Stock").
Of the authorized shares of Preferred Stock, Twenty Thousand (20,000) shares
shall be designated "Series A Participating Preferred Stock" (sometimes referred
to herein as "Series A Preferred").
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized subject to limitations prescribed by
law, to fix by resolution or resolutions the designations, powers, preferences
and rights, and the qualifications, limitations or restrictions thereof, of each
such series of Preferred Stock, including without limitation authority to fix by
resolution or resolutions, the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation preferences of any
wholly unissued series of Preferred Stock, and the number of shares constituting
any such series and the designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series, the number of which was fixed by it, subsequent to the issue of
shares of such series then outstanding, subject to the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof stated in
the resolution of the Board of Directors originally fixing the number of shares
of such series. If the number of shares of any series is so decreased, then the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
The relative rights, preferences, privileges, and restrictions granted to or
imposed upon the Common Stock, the Series A Preferred and the holders thereof
(collectively, the "Stockholders") are as follows:
1. Dividends and Distributions.
a. Subject to the prior and superior right of the holders of any shares of
any series of Preferred Stock ranking prior and superior to the shares of Series
A Participating Preferred Stock with respect to dividends, the holders of shares
of Series A Participating Preferred Stock shall be entitled to receive when, as
and if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last day of January, April,
July and October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Participating Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to, subject to the provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share amount of all cash dividends, and
1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock of the Corporation
(the "Common Stock") since the immediately preceding Quarterly Dividend Payment
Date,
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<PAGE>
or, with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Participating Preferred
Stock. In the event the Corporation shall at any time after October 23, 1996
(the "Rights Dividend Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of shares of Series A
Participating Preferred Stock were entitled immediately prior to such event
under the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
b. The Corporation shall declare a dividend or distribution on the Series A
Participating Preferred Stock as provided in paragraph (a) above immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock).
c. Dividends shall begin to accrue on outstanding shares of Series A
Participating Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Participating Preferred
Stock, unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of holders of
shares of Series A Participating Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
2. Voting Rights. The holders of shares of Series A Participating Preferred
Stock shall have the following voting rights:
a. Subject to the provision for adjustment hereinafter set forth, each
share of Series A Participating Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the shareholders
of the Corporation. In the event the Corporation shall at any time after the
Rights Dividend Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the number of votes per share to which holders
of shares of Series A Participating Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
b. Except as otherwise provided herein or by law, the holders of shares of
Series A Participating Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
c. Except as required by law, holders of Series A Participating Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
3. Certain Restrictions.
a. The Corporation shall not declare any dividend on, make any distribution
on, or redeem or purchase or otherwise acquire for consideration any shares of
Common Stock after the first issuance of a share or fraction of a share of
Series A Participating Preferred Stock unless concurrently therewith it shall
declare a dividend on the Series A Participating Preferred Stock as required by
Section 1 hereof.
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b. Whenever quarterly dividends or other dividends or distributions payable
on the Series A Participating Preferred Stock as provided in Section 1 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Participating
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not
(1) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock;
(2) declare or pay dividends on, or make any other distributions on, any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with Series A Participating Preferred
Stock, except dividends paid ratably on the Series A Participating Preferred
Stock and all such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all such shares
are then entitled;
(3) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Participating Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Participating
Preferred Stock;
(4) purchase or otherwise acquire for consideration any shares of Series A
Participating Preferred Stock, or any shares of stock ranking on a parity
with the Series A Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series or classes.
c. The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 3,
purchase or otherwise acquire such shares at such time and in such manner.
4. Reacquired Shares. Any shares of Series A Participating Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
5. Liquidation, Dissolution or Winding Up.
a. Upon any liquidation (voluntary or otherwise), dissolution or winding up
of the Corporation, no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior thereto,
the holders of shares of Series A Participating Preferred Stock shall have
received one hundred twenty-six thousand dollars ($126,000) per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series A Participating Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth in
subparagraph (c) below to reflect such events as stock splits, stock dividends
and recapitalization with respect to the Common Stock) (such number in clause
(ii), the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A
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<PAGE>
Participating Preferred Stock and Common Stock, respectively, holders of Series
A Participating Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis, respectively.
b. In the event, however, that there are not sufficient assets available to
permit payment in full to the Series A Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, which
rank on a parity with the Series A Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
c. In the event the Corporation shall at any time after the Rights Dividend
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
d. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of Series A
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Dividend
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
6. No Redemption. The shares of Series A Participating Preferred Stock shall
not be redeemable.
7. Ranking. The Series A Participating Preferred Stock shall rank junior to
all other series of the Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
8. Amendment. This Certificate of Incorporation of the Corporation shall not
be further amended in any manner which would materially alter or change the
powers, preference or special rights of the Series A Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of Series A Participating
Preferred Stock, voting separately as a class.
9. Fractional Shares. Series A Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Participating Preferred Stock.
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<PAGE>
FIFTH: The name and mailing address of the incorporator are as follows:
Bruce R. Wright
Spectrian Corporation
350 W. Java Drive
Sunnyvale, CA 94089
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The election of directors need not be by written ballot unless a
stockholder demands election by written ballot at a meeting of stockholders and
before voting begins or unless the Bylaws of the Corporation shall so provide.
EIGHTH: The number of directors which constitute the whole Board of Directors
of the Corporation shall be designated in the Bylaws of the Corporation.
NINTH: In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized to
adopt, alter, amend or repeal the Bylaws of the Corporation.
TENTH: To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
Neither any amendment nor repeal of this Article, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article,
shall eliminate or reduce the effect of this Article in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article,
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
ELEVENTH: At the election of directors of the Corporation, each holder of
stock or of any class or series of stock shall be entitled to as many votes as
shall equal the number of votes which such stockholder would be entitled to cast
for the election of directors with respect to his or her shares of stock
multiplied by the number of directors to be elected and may cast all such votes
for any director or for any two or more of them as such stockholder may see fit.
TWELFTH: Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the laws of the State of Delaware)
outside of the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the Corporation.
THIRTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the laws of the State of Delaware, and all
rights conferred herein are granted subject to this reservation.
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed and that the facts stated
herein are true.
Dated: May 21, 1997
/s/ Bruce R. Wright
-----------------------
Bruce R. Wright
Incorporator
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<PAGE>
APPENDIX C
BYLAWS
OF
SPECTRIAN CORPORATION
(A DELAWARE CORPORATION)
(Adopted as of May 21, 1997)
<PAGE>
BYLAWS
OF
SPECTRIAN CORPORATION
(A DELAWARE CORPORATION)
TABLE OF CONTENTS
Page
----
ARTICLE I -- CORPORATE OFFICES .................................. C-1
1.1 REGISTERED OFFICE ........................................ C-1
1.2 OTHER OFFICES ............................................ C-1
ARTICLE II -- MEETINGS OF STOCKHOLDERS .......................... C-1
2.1 PLACE OF MEETINGS ........................................ C-1
2.2 ANNUAL MEETING ........................................... C-2
2.3 SPECIAL MEETING .......................................... C-2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS ......................... C-2
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER
BUSINESS ............................................... C-2
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE ............ C-3
2.7 QUORUM ................................................... C-3
2.8 ADJOURNED MEETING; NOTICE ................................ C-3
2.9 VOTING ................................................... C-3
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING ............... C-4
2.12 PROXIES .................................................. C-4
2.13 ORGANIZATION ............................................. C-4
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE .................... C-4
ARTICLE III -- DIRECTORS ........................................ C-5
3.1 POWERS ................................................... C-5
3.2 NUMBER OF DIRECTORS ...................................... C-5
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS ................. C-5
3.4 RESIGNATION AND VACANCIES ................................ C-5
3.5 REMOVAL OF DIRECTORS ..................................... C-6
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE ................. C-6
3.7 FIRST MEETINGS ........................................... C-6
3.8 REGULAR MEETINGS ......................................... C-6
3.9 SPECIAL MEETINGS; NOTICE ................................. C-6
3.10 QUORUM ................................................... C-7
3.11 WAIVER OF NOTICE ......................................... C-7
3.12 ADJOURNMENT .............................................. C-7
3.13 NOTICE OF ADJOURNMENT .................................... C-7
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING ....... C-7
3.15 FEES AND COMPENSATION OF DIRECTORS ....................... C-7
3.16 APPROVAL OF LOANS TO OFFICERS ............................ C-8
3.17 SOLE DIRECTOR PROVIDED BY CERTIFICATE OF INCORPORATION .. C-8
ARTICLE IV -- COMMITTEES ........................................ C-8
4.1 COMMITTEES OF DIRECTORS .................................. C-8
4.2 MEETINGS AND ACTION OF COMMITTEES ........................ C-8
4.3 COMMITTEE MINUTES ........................................ C-9
C-i
<PAGE>
ARTICLE V -- OFFICERS ........................................... C-9
5.1 OFFICERS ................................................. C-9
5.2 ELECTION OF OFFICERS ..................................... C-9
5.3 SUBORDINATE OFFICERS ..................................... C-9
5.4 REMOVAL AND RESIGNATION OF OFFICERS ...................... C-9
5.5 VACANCIES IN OFFICES ..................................... C-9
5.6 CHAIRMAN OF THE BOARD .................................... C-9
5.7 CHIEF EXECUTIVE OFFICER AND PRESIDENT .................... C-10
5.8 VICE PRESIDENTS .......................................... C-10
5.9 SECRETARY ................................................ C-10
5.10 CHIEF FINANCIAL OFFICER .................................. C-10
5.11 ASSISTANT SECRETARY ...................................... C-11
5.12 ADMINISTRATIVE OFFICERS .................................. C-11
5.13 AUTHORITY AND DUTIES OF OFFICERS ........................ C-11
ARTICLE VI -- INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS ............................................. C-11
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS ................ C-11
6.2 INDEMNIFICATION OF OTHERS ................................ C-12
6.3 INSURANCE ................................................ C-12
ARTICLE VII -- RECORDS AND REPORTS .............................. C-12
7.1 MAINTENANCE AND INSPECTION OF RECORDS .................... C-12
7.2 INSPECTION BY DIRECTORS .................................. C-12
7.3 ANNUAL STATEMENT TO STOCKHOLDERS ......................... C-12
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS .......... C-13
7.5 CERTIFICATION AND INSPECTION OF BYLAWS ................... C-13
ARTICLE VIII -- GENERAL MATTERS ................................. C-13
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING..... C-13
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS ................ C-13
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED ....... C-13
8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES ........ C-13
8.5 SPECIAL DESIGNATION ON CERTIFICATES ...................... C-14
8.6 LOST CERTIFICATES ........................................ C-14
8.7 TRANSFER AGENTS AND REGISTRARS ........................... C-15
8.8 CONSTRUCTION; DEFINITIONS ................................ C-15
ARTICLE IX -- AMENDMENTS ...................................... C-15
C-ii
<PAGE>
BYLAWS
OF
SPECTRIAN CORPORATION
(A DELAWARE CORPORATION)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be fixed in the certificate of
incorporation of the corporation.
1.2 OTHER OFFICES
The board of directors may at any time establish branch or subordinate
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside the
State of Delaware designated by the board of directors. In the absence of any
such designation, stockholders' meetings shall be held at the principal
executive office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date and at a
time designated by the board of directors. At the meeting, directors shall be
elected, and any other proper business may be transacted.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be: (A) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (B) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (C) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than thirty (30)
calendar days in advance of the estimated mailing date for the proxy statement
relating to the corporation's next annual meeting as specified in the
corporation's proxy statement released to stockholders in connection with the
previous year's annual meeting of stockholders; provided, however, that in the
event that no annual meeting was held in the previous year or the date of the
annual meeting has been changed by more than thirty (30) days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholder to be timely must be so received a reasonable time before the
solicitation is made. A stockholder's notice to the Secretary shall set forth as
to each matter the stockholder proposes to bring before the annual meeting: (i)
a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (ii)
the name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (iii) the class and number of shares of the
corporation which are beneficially owned by the stockholder, (iv) any material
interest of the stockholder in such business and (v) any other information that
is required to be provided by the stockholder pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), in his
capacity as a proponent to a stockholder proposal. Notwithstanding the
foregoing, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholder's meeting,
stockholders must provide notice as required by the regulations promulgated
under the 1934 Act. Notwithstanding anything in these
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<PAGE>
Bylaws to the contrary, no business shall be conducted at any annual meeting
except in accordance with the procedures set forth in this paragraph. The
chairman of the annual meeting shall, if the facts warrant, determine and
declare at the meeting that business was not properly brought before the meeting
and in accordance with the provisions of this paragraph, and, if he should so
determine, he shall so declare at the meeting that any such business not
properly brought before the meeting shall not be transacted.
Only persons who are nominated in accordance with the procedures set forth in
this paragraph shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors of the corporation may be made at
a meeting of stockholders by or at the direction of the Board of Directors or by
any stockholder of the corporation entitled to vote in the election of Directors
at the meeting who complies with the notice procedures set forth in this
paragraph. Such nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the corporation in accordance with the provisions of the prior
paragraph of this Section 2.2. Such stockholder's notice shall set forth (i) as
to each person, if any, whom the stockholder proposes to nominate for election
or re-election as a Director: (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the corporation which are
beneficially owned by such person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nominations are to
be made by the stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of proxies for
elections of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the 1934 Act (including without limitation such person's
written consent to being named in the proxy statement, if any, as a nominee and
to serving as a Director if elected); and (ii) as to such stockholder giving
notice, the information required to be provided pursuant to the preceding
paragraph of this Section 2.2. At the request of the Board of Directors, any
person nominated by a stockholder for election as a Director shall furnish to
the Secretary of the corporation that information required to be set forth in
the stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the corporation unless nominated
in accordance with the procedures set forth in this paragraph (c). The chairman
of the meeting shall, if the facts warrants, determine and declare at the
meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
at the meeting, and the defective nomination shall be disregarded.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the board
of directors, or by the chairman of the board, or by the president, or by one or
more stockholders holding shares in the aggregate entitled to cast not less than
ten percent (10%) of the votes of all shares of stock owned by stockholders
entitled to vote at that meeting.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise given in
accordance with Section 2.5 of these bylaws not less than ten (10) nor more than
sixty (60) days before the date of the meeting. The notice shall specify the
place, date and hour of the meeting and (i) in the case of a special meeting,
the purpose or purposes for which the meeting is called (no business other than
that specified in the notice may be transacted) or (ii) in the case of the
annual meeting, those matters which the board of directors, at the time of
giving the notice, intends to present for action by the stockholders (but any
proper matter may be presented at the meeting for such action). The notice of
any meeting at which directors are to be elected shall include the name of any
nominee or nominees who, at the time of the notice, the board intends to present
for election.
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS
To be properly brought before an annual meeting or special meeting,
nominations for the election of directors or other business must be (a)
specified in the notice of meeting (or any supplement thereto)
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<PAGE>
given by or at the direction of the board of directors, (b) otherwise properly
brought before the meeting by or at the direction of the board of directors or
(c) otherwise properly brought before the meeting by a stockholder.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2.7 QUORUM
The holders of a majority in voting power of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum is not present or represented at any
meeting of the stockholders, then either (i) the chairman of the meeting or (ii)
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting in accordance with Section 2.7 of
these bylaws.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the laws of the State of Delaware or
of the certificate of incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of the question.
If a quorum be initially present, the stockholders may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the stockholders initially constituting the quorum.
2.8 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time and place, unless these bylaws
otherwise require, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business that
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.11 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgers and joint
owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation or
these bylaws, each stockholder shall be entitled to as many votes as shall equal
the number of votes which such stockholder would be entitled to cast for the
election of directors with respect to his or her shares of stock multiplied by
the number of directors to be elected and may cast all such votes for any
director or for any two or more of them as such stockholder may see fit.
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<PAGE>
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT
Any action which may be taken at any meeting of stockholders may be taken
without a meeting and without prior notice, except as required by the Securities
Exchange Act of 1934, as amended, and the rules promulgated thereunder, if a
consent in writing, setting forth the actions so taken, shall be signed by the
holders of outstanding shares having not less than the minimum number of votes
which would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat, the board of directors may fix, in advance, a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors and which shall not be more
than sixty (60) days nor less than ten (10) days before the date of any such
meeting, and in such event only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date.
If the board of directors does not so fix a record date, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the business day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting unless
the board of directors fixes a new record date for the adjourned meeting, but
the board of directors shall fix a new record date if the meeting is adjourned
for more than thirty (30) days from the date set for the original meeting.
The record date for any other purpose shall be as provided in Section 8.1 of
these bylaws.
2.12 PROXIES
Every person entitled to vote for directors, or on any other matter, shall
have the right to do so either in person or by one or more agents authorized by
a written proxy signed by the person and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after 11 months from
its date, unless the proxy provides for a longer period. A proxy shall be deemed
signed if the stockholder's name is placed on the proxy (whether by manual
signature, typewriting, telegraphic transmission, tele-facsimile or otherwise)
by the stockholder or the stockholder's attorney-in-fact. The revocability of a
proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(e) of the General Corporation Law of Delaware.
2.13 ORGANIZATION
The president, or in the absence of the president, the chairman of the board,
shall call the meeting of the stockholders to order, and shall act as chairman
of the meeting. In the absence of the president, the chairman of the board, and
all of the vice presidents, the stockholders shall appoint a chairman for such
meeting. The chairman of any meeting of stockholders shall determine the order
of business and the procedures at the meeting, including such matters as the
regulation of the manner of voting and the conduct of business. The secretary of
the corporation shall act as secretary of all meetings of the stockholders, but
in the absence of the secretary at any meeting of the stockholders, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the
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meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware and to
any limitations in the certificate of incorporation or these bylaws relating to
action required to be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
3.2 NUMBER OF DIRECTORS
The board of directors shall consist of five (5) members. The number of
directors may be changed by an amendment to this bylaw, duly adopted by the
board of directors or by the stockholders, or by a duly adopted amendment to the
certificate of incorporation.
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors shall be elected
at each annual meeting of stockholders to hold office until the next annual
meeting. Each director, including a director elected or appointed to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
3.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to the chairman of
the board, the president, the secretary or the board of directors, unless the
notice specifies a later time for that resignation to become effective. If the
resignation of a director is effective at a future time, the board of directors
may elect a successor to take office when the resignation becomes effective.
Vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director. Each director so elected shall hold office until the next annual
meeting of the stockholders and until a successor has been elected and
qualified.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting from any increase
in the authorized number of directors elected by all of the stockholders
having the right to vote as a single class may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director.
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a
sole remaining director so elected.
(iii) A vacancy created by the removal of a director, except a removal by
the stockholders for cause, may be filled by a majority of directors then in
office or the stockholders.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship, the
directors then in office constitute less than a majority of the whole board (as
constituted immediately prior to any such increase),
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then the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten (10) percent of the total number of the shares
at the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office as aforesaid, which election shall be governed by the provisions of
Section 211 of the General Corporation Law of Delaware as far as applicable.
3.5 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of incorporation
or by these bylaws, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors; provided, however, that, if and so
long as stockholders of the corporation are entitled to cumulative voting, if
less than the entire board is to be removed, no director may be removed without
cause if the votes cast against his removal would be sufficient to elect him if
then cumulatively voted at an election of the entire board of directors,
pursuant to Delaware General Corporation Law Section 141(k)(2).
For purposes of the foregoing paragraph, "cause" shall mean (i) continued
willful failure to perform obligations of a director, (ii) gross negligence by a
director, (iii) engaging in transactions that defraud the corporation, (iv)
fraud or intentional misrepresentation, including falsifying use of funds and
intentional misstatements made in financial statements, books, records or
reports to stockholders or governmental agencies, (v) material violation of any
agreement between the director and the corporation, (vi) knowingly causing the
corporation to commit violations of applicable law (including by failure to
act), (vii) acts of moral turpitude or (viii) conviction of a felony.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director's term of office.
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any place within or
outside the State of Delaware that has been designated from time to time by
resolution of the board. In the absence of such a designation, regular meetings
shall be held at the principal executive office of the corporation. Special
meetings of the board may be held at any place within or outside the State of
Delaware that has been designated in the notice of the meeting or, if not stated
in the notice or if there is no notice, at the principal executive office of the
corporation.
Any meeting of the board, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such participating
directors shall be deemed to be present in person at the meeting.
3.7 FIRST MEETINGS
The first meeting of each newly elected board of directors shall be held at
such time and place as shall be fixed by the vote of the stockholders at the
annual meeting. In the event of the failure of the stockholders to fix the time
or place of such first meeting of the newly elected board of directors, or in
the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
3.8 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice at such
time as shall from time to time be determined by the board of directors. If any
regular meeting day shall fall on a legal holiday, then the meeting shall be
held at the same time and place on the next succeeding full business day.
3.9 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes may be
called at any time by the chairman of the board, the president, any vice
president, the secretary or any two directors.
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Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
telecopy or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of the holding of the meeting. If the notice is
delivered personally or by telephone, telecopy or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated either to the
director or to a person at the office of the director who the person giving the
notice has reason to believe will promptly communicate it to the director. The
notice need not specify the purpose or the place of the meeting, if the meeting
is to be held at the principal executive office of the corporation.
3.10 QUORUM
A majority of the authorized number of directors shall constitute a quorum
for the transaction of business, except to adjourn as provided in Section 3.12
of these bylaws. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of the
certificate of incorporation and applicable law.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the quorum for that meeting.
3.11 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) who signs a waiver
of notice, whether before or after the meeting, or (ii) who attends the meeting
other than for the express purposed of objecting at the beginning of the meeting
to the transaction of any business because the meeting is not lawfully called or
convened. All such waivers shall be filed with the corporate records or made
part of the minutes of the meeting. A waiver of notice need not specify the
purpose of any regular or special meeting of the board of directors.
3.12 ADJOURNMENT
A majority of the directors present, whether or not constituting a quorum,
may adjourn any meeting of the board to another time and place.
3.13 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting of the board
need not be given unless the meeting is adjourned for more than twenty-four (24)
hours. If the meeting is adjourned for more than twenty-four (24) hours, then
notice of the time and place of the adjourned meeting shall be given before the
adjourned meeting takes place, in the manner specified in Section 3.9 of these
bylaws, to the directors who were not present at the time of the adjournment.
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the board of directors may be
taken without a meeting, provided that all members of the board individually or
collectively consent in writing to that action. Such action by written consent
shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent and any counterparts thereof shall be filed with
the minutes of the proceedings of the board of directors.
3.15 FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such compensation, if any,
for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the board of directors. This Section 3.15 shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
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3.16 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or any of its
subsidiaries, including any officer or employee who is a director of the
corporation or any of its subsidiaries, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
3.17 SOLE DIRECTOR PROVIDED BY CERTIFICATE OF INCORPORATION
In the event only one director is required by these bylaws or the certificate
of incorporation, then any reference herein to notices, waivers, consents,
meetings or other actions by a majority or quorum of the directors shall be
deemed to refer to such notice, waiver, etc., by such sole director, who shall
have all the rights and duties and shall be entitled to exercise all of the
powers and shall assume all the responsibilities otherwise herein described as
given to the board of directors.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one (1) or more committees, each
consisting of two or more directors, to serve at the pleasure of the board. The
board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any
committee, to the extent provided in the resolution of the board, shall have and
may exercise all the powers and authority of the board, but no such committee
shall have the power or authority to (i) amend the certificate of incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the board
of directors as provided in Section 151(a) of the General Corporation Law of
Delaware, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), (ii) adopt an agreement of
merger or consolidation under Sections 251 or 252 of the General Corporation Law
of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, (iv)
recommend to the stockholders a dissolution of the corporation or a revocation
of a dissolution or (v) amend the bylaws of the corporation; and, unless the
board resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and taken
in accordance with, the following provisions of Article III of these bylaws:
Section 3.6 (place of meetings; meetings by telephone), Section 3.8 (regular
meetings), Section 3.9 (special meetings; notice), Section 3.10 (quorum),
Section 3.11 (waiver of notice), Section 3.12 (adjournment), Section 3.13
(notice of adjournment) and Section 3.14 (board action by written consent
without meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of directors
and its members; provided, however, that the time of regular meetings of
committees may be determined either by resolution of the board of directors or
by resolution of the committee, that special meetings of committees may also be
called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
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4.3 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the same
to the board of directors when required.
ARTICLE V
OFFICERS
5.1 OFFICERS
The Corporate Officers of the corporation shall be a chief executive officer
and president, a secretary and a chief financial officer. The corporation may
also have, at the discretion of the board of directors, a chairman of the board,
one or more vice presidents (however denominated), one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these bylaws. Any
number of offices may be held by the same person.
In addition to the Corporate Officers of the Company described above, there
may also be such Administrative Officers of the corporation as may be designated
and appointed from time to time by the president of the corporation in
accordance with the provisions of Section 5.12 of these bylaws.
5.2 ELECTION OF OFFICERS
The Corporate Officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 or Section 5.5 of
these bylaws, shall be chosen by the board of directors, subject to the rights,
if any, of an officer under any contract of employment, and shall hold their
respective offices for such terms as the board of directors may from time to
time determine.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or may empower the president to appoint,
such other Corporate Officers as the business of the corporation may require,
each of whom shall hold office for such period, have such power and authority,
and perform such duties as are provided in these bylaws or as the board of
directors may from time to time determine.
The president may from time to time designate and appoint Administrative
Officers of the corporation in accordance with the provisions of Section 5.12 of
these bylaws.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of a Corporate Officer under any contract of
employment, any Corporate Officer may be removed, either with or without cause,
by the board of directors at any regular or special meeting of the board or,
except in case of a Corporate Officer chosen by the board of directors, by any
Corporate Officer upon whom such power of removal may be conferred by the board
of directors.
Any Corporate Officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the Corporate
Officer is a party.
Any Administrative Officer designated and appointed by the president may be
removed, either with or without cause, at any time by the president. Any
Administrative Officer may resign at any time by giving written notice to the
president or to the secretary of the corporation.
5.5 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to that office.
5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if present,
preside at meetings of the board of directors and exercise such other powers and
perform such other duties as may from time to time
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be assigned to him by the board of directors or as may be prescribed by these
bylaws. If there is no president, then the chairman of the board shall also be
the chief executive officer of the corporation and shall have the powers and
duties prescribed in Section 5.7 of these bylaws.
5.7 CHIEF EXECUTIVE OFFICER AND PRESIDENT
Subject to such supervisory powers, if any, as may be given by the board of
directors to the chairman of the board, if there be such an officer, the
president shall be the chief executive officer of the corporation and shall,
subject to the control of the board of directors, have general supervision,
direction and control of the business and the officers of the corporation. He or
she shall preside at all meetings of the stockholders and, in the absence or
nonexistence of a chairman of the board, at all meetings of the board of
directors. He or she shall have the general powers and duties of management
usually vested in the office of president of a corporation, and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or these bylaws.
5.8 VICE PRESIDENTS
In the absence or disability of the president, and if there is no chairman of
the board, the vice presidents, if any, in order of their rank as fixed by the
board of directors or, if not ranked, a vice president designated by the board
of directors, shall perform all the duties of the president and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors, these bylaws, the president or the chairman of the board.
5.9 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of the board of directors,
committees of directors and stockholders. The minutes shall show the time and
place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office of the corporation or at the office of the corporation's transfer agent
or registrar, as determined by resolution of the board of directors, a share
register or a duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates evidencing such shares and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the
stockholders and of the board of directors required to be given by law or by
these bylaws. He or she shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or by these bylaws.
5.10 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts of the properties
and business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings
and shares. The books of account shall at all reasonable times be open to
inspection by any director for a purpose reasonably related to his position as a
director.
The chief financial officer shall deposit all money and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the board of directors. He or she shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his or
her transactions as chief financial officer and of the financial condition of
the corporation, and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or these bylaws.
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5.11 ASSISTANT SECRETARY
The assistant secretary, if any, or, if there is more than one, the assistant
secretaries in the order determined by the board of directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the secretary or in the event of his or her inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
5.12 ADMINISTRATIVE OFFICERS
In addition to the Corporate Officers of the corporation as provided in
Section 5.1 of these bylaws and such subordinate Corporate Officers as may be
appointed in accordance with Section 5.3 of these bylaws, there may also be such
Administrative Officers of the corporation as may be designated and appointed
from time to time by the president of the corporation. Administrative Officers
shall perform such duties and have such powers as from time to time may be
determined by the president or the board of directors in order to assist the
Corporate Officers in the furtherance of their duties. In the performance of
such duties and the exercise of such powers, however, such Administrative
Officers shall have limited authority to act on behalf of the corporation as the
board of directors shall establish, including but not limited to limitations on
the dollar amount and on the scope of agreements or commitments that may be made
by such Administrative Officers on behalf of the corporation, which limitations
may not be exceeded by such individuals or altered by the president without
further approval by the board of directors.
5.13 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing powers, authority and duties, all officers of
the corporation shall respectively have such authority and powers and perform
such duties in the management of the business of the corporation as may be
designated from time to time by the board of directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted by
the General Corporation Law of Delaware as the same now exists or may hereafter
be amended, indemnify any person against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending or completed action, suit,
or proceeding in which such person was or is a party or is threatened to be made
a party by reason of the fact that such person is or was a director or officer
of the corporation. For purposes of this Section 6.1, a "director" or "officer"
of the corporation shall mean any person (i) who is or was a director or officer
of the corporation, (ii) who is or was serving at the request of the corporation
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise, or (iii) who was a director or officer of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
The corporation shall be required to indemnify a director or officer in
connection with an action, suit, or proceeding (or part thereof) initiated by
such director or officer only if the initiation of such action, suit, or
proceeding (or part thereof) by the director or officer was authorized by the
board of directors of the corporation.
The corporation shall pay the expenses (including attorney's fees) incurred
by a director or officer of the corporation entitled to indemnification
hereunder in defending any action, suit or proceeding referred to in this
Section 6.1 in advance of its final disposition; provided, however, that payment
of expenses incurred by a director or officer of the corporation in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it should ultimately be determined that the director or officer is
not entitled to be indemnified under this Section 6.1 or otherwise.
The rights conferred on any person by this Article shall not be exclusive of
any other rights which such person may have or hereafter acquire under any
statute, provision of the corporation's Certificate of Incorporation, these
bylaws, agreement, vote of the stockholders or disinterested directors or
otherwise.
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Any repeal or modification of the foregoing provisions of this Article shall
not adversely affect any right or protection hereunder of any person in respect
of any act or omission occurring prior to the time of such repeal or
modification.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware as the same now exists or
may hereafter be amended, to indemnify any person (other than directors and
officers) against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred in connection with
any threatened, pending or completed action, suit, or proceeding, in which such
person was or is a party or is threatened to be made a party by reason of the
fact that such person is or was an employee or agent of the corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the corporation (other
than a director or officer) shall mean any person (i) who is or was an employee
or agent of the corporation, (ii) who is or was serving at the request of the
corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at such
place or places as designated by the board of directors, keep a record of its
stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these bylaws as amended to date,
accounting books and other records of its business and properties.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock ledger,
a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
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7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, if any, the president, any vice president, the
chief financial officer, the secretary or any assistant secretary of this
corporation, or any other person authorized by the board of directors or the
president or a vice president, is authorized to vote, represent and exercise on
behalf of this corporation all rights incident to any and all shares of the
stock of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
7.5 CERTIFICATION AND INSPECTION OF BYLAWS
The original or a copy of these bylaws, as amended or otherwise altered to
date, certified by the secretary, shall be kept at the corporation's principal
executive office and shall be open to inspection by the stockholders of the
corporation, at all reasonable times during office hours.
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the board of directors may fix, in advance, a record date, which shall not
precede the date upon which the resolution fixing the record date is adopted and
which shall not be more than sixty (60) days before any such action. In that
case, only stockholders of record at the close of business on the date so fixed
are entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided by law.
If the board of directors does not so fix a record date, then the record date
for determining stockholders for any such purpose shall be at the close of
business on the day on which the board of directors adopts the applicable
resolution.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by resolution which
person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED
The board of directors, except as otherwise provided in these bylaws, may
authorize and empower any officer or officers, or agent or agents, to enter into
any contract or execute any instrument in the name of and on behalf of the
corporation; such power and authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or within
the agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES
The shares of the corporation shall be represented by certificates, provided
that the board of directors of the corporation may provide by resolution or
resolutions that some or all of any or all classes or series of its stock shall
be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and, upon request,
every holder of uncertificated shares, shall be entitled to have a certificate
signed by, or in the name of the
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corporation by, the chairman or vice-chairman of the board of directors, or the
president or vice- president, and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of such corporation representing the
number of shares registered in certificate form. Any or all of the signatures on
the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the
date of issue.
Certificates for shares shall be of such form and device as the board of
directors may designate and shall state the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; a summary statement or reference to the powers,
designations, preferences or other special rights of such stock and the
qualifications, limitations or restrictions of such preferences and/or rights,
if any; a statement or summary of liens, if any; a conspicuous notice of
restrictions upon transfer or registration of transfer, if any; a statement as
to any applicable voting trust agreement; if the shares be assessable, or, if
assessments are collectible by personal action, a plain statement of such facts.
Upon surrender to the secretary or transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
The corporation may issue the whole or any part of its shares as partly paid
and subject to call for the remainder of the consideration to be paid therefor.
Upon the face or back of each stock certificate issued to represent any such
partly paid shares, or upon the books and records of the corporation in the case
of uncertificated partly paid shares, the total amount of the consideration to
be paid therefor and the amount paid thereon shall be stated. Upon the
declaration of any dividend on fully paid shares, the corporation shall declare
a dividend upon partly paid shares of the same class, but only upon the basis of
the percentage of the consideration actually paid thereon.
8.5 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock or
more than one series of any class, then the powers, the designations, the
preferences and the relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
8.6 LOST CERTIFICATES
Except as provided in this Section 8.6, no new certificates for shares shall
be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and canceled at the same time. The board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board may require; the board
may require indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
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8.7 TRANSFER AGENTS AND REGISTRARS
The board of directors may appoint one or more transfer agents or transfer
clerks, and one or more registrars, each of which shall be an incorporated bank
or trust company -- either domestic or foreign, who shall be appointed at such
times and places as the requirements of the corporation may necessitate and the
board of directors may designate.
8.8 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the General Corporation Law of Delaware shall
govern the construction of these bylaws. Without limiting the generality of this
provision, as used in these bylaws, the singular number includes the plural, the
plural number includes the singular, and the term "person" includes both an
entity and a natural person.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended or
repealed by the stockholders entitled to vote; provided, however, that the
corporation may, in its certificate of incorporation, confer the power to adopt,
amend or repeal bylaws upon the directors. The fact that such power has been so
conferred upon the directors shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws.
Whenever an amendment or new bylaw is adopted, it shall be copied in the book
of bylaws with the original bylaws, in the appropriate place. If any bylaw is
repealed, the fact of repeal with the date of the meeting at which the repeal
was enacted or the filing of the operative written consent(s) shall be stated in
said book.
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CERTIFICATE OF ADOPTION OF BYLAWS
OF
SPECTRIAN CORPORATION
A DELAWARE CORPORATION
CERTIFICATE BY SECRETARY OF ADOPTION BY BOARD OF DIRECTORS
The undersigned hereby certifies that he is the duly elected, qualified, and
acting Secretary of Spectrian Corporation, a Delaware corporation, and that the
foregoing Bylaws, comprising twenty-seven (27) pages, were adopted as the Bylaws
of the corporation on May 21, 1997, by the members of the corporation's Board of
Directors.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed
the corporate seal this 21st day of May, 1997.
/s/ Bruce R. Wright
-------------------------------------------
Bruce R. Wright, Executive Vice President,
Chief Financial Officer and Secretary
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APPENDIX D
SPECTRIAN CORPORATION
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of , 1997 by and
between Spectrian Corporation, a Delaware corporation (the "Company"), and [name
of director/officer to be indemnified], ("Indemnitee").
WHEREAS, effective as of the date hereof, Spectrian Corporation, a California
corporation, is reincorporating into Delaware;
WHEREAS, the Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve the Company and its related
entities;
WHEREAS, in order to induce Indemnitee to continue to provide services to the
Company, the Company wishes to provide for the indemnification of, and the
advancement of expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, the Company and Indemnitee recognize the continued difficulty in
obtaining liability insurance for the Company's directors, officers, employees,
agents and fiduciaries, the significant increases in the cost of such insurance
and the general reductions in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries to expensive litigation risks at the same time
as the availability and coverage of liability insurance has been severely
limited; and
WHEREAS, in connection with the Company's reincorporation, the Company and
Indemnitee desire to continue to have in place the additional protection
provided by an indemnification agreement to provide indemnification and
advancement of expenses to the Indemnitee to the maximum extent permitted by
Delaware law;
WHEREAS, in view of the considerations set forth above, the Company desires
that Indemnitee shall be indemnified and advanced expenses by the Company as set
forth herein;
NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth below.
1. Certain Definitions.
1. "Change in Control" shall mean, and shall be deemed to have occurred
if, on or after the date of this Agreement, (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) or group acting in concert, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company acting in
such capacity or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, becomes the "beneficial owner" (as defined
in Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing more than 50% of the total voting power represented by
the Company's then outstanding Voting Securities, (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by the
Company's stockholders was approved by a vote of at least two thirds (2/3) of
the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation other than a merger or consolidation which would
result in the Voting Securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80% of the
total voting power
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represented by the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one
transaction or a series of related transactions) all or substantially all of the
Company's assets.
(b) "Claim" shall mean with respect to a Covered Event: any threatened,
pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution mechanism, whether
civil, criminal, administrative, investigative or other.
(c) References to the "Company" shall include, in addition to Spectrian
Corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which Spectrian
Corporation (or any of its wholly owned subsidiaries) is a party which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees, agents or fiduciaries, so that
if Indemnitee is or was a director, officer, employee, agent or fiduciary of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, agent or fiduciary
of another corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise, Indemnitee shall stand in the same position under
the provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(d) "Covered Event" shall mean any event or occurrence related to the fact
that Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or any subsidiary of the Company, or is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary
of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of Indemnitee
while serving in such capacity.
(e) "Expenses" shall mean any and all expenses (including attorneys' fees
and all other costs, expenses and obligations incurred in connection with
investigating, defending, being a witness in or participating in (including
on appeal), or preparing to defend, to be a witness in or to participate in,
any action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and amounts
paid in settlement (if such settlement is approved in advance by the Company,
which approval shall not be unreasonably withheld) of any Claim and any
federal, state, local or foreign taxes imposed on the Indemnitee as a result
of the actual or deemed receipt of any payments under this Agreement.
(f) "Expense Advance" shall mean a payment to Indemnitee pursuant to
Section 3 of Expenses in advance of the settlement of or final judgement in
any action, suit, proceeding or alternative dispute resolution mechanism,
hearing, inquiry or investigation which constitutes a Claim.
(g) "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or Indemnitee
within the last three years (other than with respect to matters concerning
the rights of Indemnitee under this Agreement, or of other Indemnitees under
similar indemnity agreements).
(h) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to
"serving at the request of the Company" shall include any service as a
director, officer, employee, agent or fiduciary of the Company which imposes
duties on, or involves services by, such director, officer, employee, agent
or fiduciary with respect to an employee benefit plan, its participants or
its beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner "not opposed to the best interests of the Company" as
referred to in this Agreement.
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(i) "Reviewing Party" shall mean, subject to the provisions of Section
2(d), any person or body appointed by the Board of Directors in accordance
with applicable law to review the Company's obligations hereunder and under
applicable law, which may include a member or members of the Company's Board
of Directors, Independent Legal Counsel or any other person or body not a
party to the particular Claim for which Indemnitee is seeking
indemnification.
(j) "Section" refers to a section of this Agreement unless otherwise
indicated.
(k) "Voting Securities" shall mean any securities of the Company that vote
generally in the election of directors.
2. Indemnification.
(a) Indemnification of Expenses. Subject to the provisions of Section 2(b)
below, the Company shall indemnify Indemnitee for Expenses to the fullest extent
permitted by law if Indemnitee was or is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or witness or other
participant in, any Claim (whether by reason of or arising in part out of a
Covered Event), including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses.
(b) Review of Indemnification Obligations. Notwithstanding the foregoing, in
the event any Reviewing Party shall have determined (in a written opinion, in
any case in which Independent Legal Counsel is the Reviewing Party) that
Indemnitee is not entitled to be indemnified hereunder under applicable law, (i)
the Company shall have no further obligation under Section 2(a) to make any
payments to Indemnitee not made prior to such determination by such Reviewing
Party, and (ii) the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all Expenses theretofore paid
to Indemnitee to which Indemnitee is not entitled hereunder under applicable
law; provided, however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee is entitled to be indemnified hereunder under applicable law,
any determination made by any Reviewing Party that Indemnitee is not entitled to
be indemnified hereunder under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any Expenses
theretofore paid in indemnifying Indemnitee until a final judicial determination
is made with respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed). Indemnitee's obligation to reimburse the Company for
any Expenses shall be unsecured and no interest shall be charged thereon.
(c) Indemnitee Rights on Unfavorable Determination; Binding Effect. If any
Reviewing Party determines that Indemnitee substantively is not entitled to be
indemnified hereunder in whole or in part under applicable law, Indemnitee shall
have the right to commence litigation seeking an initial determination by the
court or challenging any such determination by such Reviewing Party or any
aspect thereof, including the legal or factual bases therefor, and, subject to
the provisions of Section 15, the Company hereby consents to service of process
and to appear in any such proceeding. Absent such litigation, any determination
by any Reviewing Party shall be conclusive and binding on the Company and
Indemnitee.
(d) Selection of Reviewing Party; Change in Control. If there has not been a
Change in Control, any Reviewing Party shall be selected by the Board of
Directors, and if there has been such a Change in Control (other than a Change
in Control which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in Control), any
Reviewing Party with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnification of Expenses under this Agreement or any
other agreement or under the Company's Certificate of Incorporation or Bylaws as
now or hereafter in effect, or under any other applicable law, if desired by
Indemnitee, shall be Independent Legal Counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld).
Such counsel, among other things, shall render its written opinion to the
Company and Indemnitee as to whether and to what extent Indemnitee would be
entitled to be indemnified hereunder under applicable law and the Company agrees
to abide by such opinion. The Company agrees to pay the reasonable fees of the
Independent Legal Counsel referred to above and to indemnify fully such counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto. Notwithstanding
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any other provision of this Agreement, the Company shall not be required to pay
Expenses of more than one Independent Legal Counsel in connection with all
matters concerning a single Indemnitee, and such Independent Legal Counsel shall
be the Independent Legal Counsel for any or all other Indemnitees unless (i) the
employment of separate counsel by one or more Indemnitees has been previously
authorized by the Company in writing, or (ii) an Indemnitee shall have provided
to the Company a written statement that such Indemnitee has reasonably concluded
that there may be a conflict of interest between such Indemnitee and the other
Indemnitees with respect to the matters arising under this Agreement.
(e) Mandatory Payment of Expenses. Notwithstanding any other provision of
this Agreement other than Section 10 hereof, to the extent that Indemnitee has
been successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any Claim, Indemnitee
shall be indemnified against all Expenses incurred by Indemnitee in connection
therewith.
3. Expense Advances.
(a) Obligation to Make Expense Advances. Upon receipt of a written
undertaking by or on behalf of the Indemnitee to repay such amounts if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
therefore by the Company hereunder under applicable law, the Company shall make
Expense Advances to Indemnitee.
(b) Form of Undertaking. Any obligation to repay any Expense Advances
hereunder pursuant to a written undertaking by the Indemnitee shall be unsecured
and no interest shall be charged thereon.
(c) Determination of Reasonable Expense Advances. The parties agree that for
the purposes of any Expense Advance for which Indemnitee has made written demand
to the Company in accordance with this Agreement, all Expenses included in such
Expense Advance that are certified by affidavit of Indemnitee's counsel as being
reasonable shall be presumed conclusively to be reasonable.
4. Procedures for Indemnification and Expense Advances.
(a) Timing of Payments. All payments of Expenses (including without
limitation Expense Advances) by the Company to the Indemnitee pursuant to this
Agreement shall be made to the fullest extent permitted by law as soon as
practicable after written demand by Indemnitee therefor is presented to the
Company, but in no event later than thirty (30) business days after such written
demand by Indemnitee is presented to the Company, except in the case of Expense
Advances, which shall be made no later than ten (10) business days after such
written demand by Indemnitee is presented to the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to Indemnitee's right to be indemnified or Indemnitee's right to
receive Expense Advances under this Agreement, give the Company notice in
writing as soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the
address shown on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee). In addition, Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by this Agreement or applicable
law. In addition, neither the failure of any Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by any
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
this Agreement under applicable law, shall be a defense to Indemnitee's claim or
create a presumption that Indemnitee has not met any particular standard of
conduct or did not have any particular belief. In connection with any
determination by any Reviewing Party or otherwise as to whether the Indemnitee
is entitled to be indemnified hereunder under applicable law, the burden of
proof shall be on the Company to establish that Indemnitee is not so entitled.
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(d) Notice to Insurers. If, at the time of the receipt by the Company of a
notice of a Claim pursuant to Section 4(b) hereof, the Company has liability
insurance in effect which may cover such Claim, the Company shall give prompt
notice of the commencement of such Claim to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such Claim in accordance
with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be obligated
hereunder to provide indemnification for or make any Expense Advances with
respect to the Expenses of any Claim, the Company, if appropriate, shall be
entitled to assume the defense of such Claim with counsel approved by Indemnitee
(which approval shall not be unreasonably withheld) upon the delivery to
Indemnitee of written notice of the Company's election to do so. After delivery
of such notice, approval of such counsel by Indemnitee and the retention of such
counsel by the Company, the Company will not be liable to Indemnitee under this
Agreement for any fees or expenses of separate counsel subsequently retained by
or on behalf of Indemnitee with respect to the same Claim; provided that, (i)
Indemnitee shall have the right to employ Indemnitee's separate counsel in any
such Claim at Indemnitee's expense and (ii) if (A) the employment of separate
counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such defense,
or (C) the Company shall not continue to retain such counsel to defend such
Claim, then the fees and expenses of Indemnitee's separate counsel shall be
Expenses for which Indemnitee may receive indemnification or Expense Advances
hereunder.
5. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification is
not specifically authorized by the other provisions of this Agreement, the
Company's Certificate of Incorporation, the Company's Bylaws or by statute. In
the event of any change after the date of this Agreement in any applicable law,
statute or rule which expands the right of a Delaware corporation to indemnify a
member of its board of directors or an officer, employee, agent or fiduciary, it
is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits afforded by such change. In the event of any
change in any applicable law, statute or rule which narrows the right of a
Delaware corporation to indemnify a member of its board of directors or an
officer, employee, agent or fiduciary, such change, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or the parties' rights and obligations
hereunder except as set forth in Section 10(a) hereof.
(b) Nonexclusivity. The indemnification and the payment of Expense Advances
provided by this Agreement shall be in addition to any rights to which
Indemnitee may be entitled under the Company's Certificate of Incorporation, its
Bylaws, any other agreement, any vote of stockholders or disinterested
directors, the General Corporation Law of the State of Delaware, or otherwise.
The indemnification and the payment of Expense Advances provided under this
Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though subsequent thereto
Indemnitee may have ceased to serve in such capacity.
6. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Company's Certificate of
Incorporation, Bylaws or otherwise) of the amounts otherwise payable hereunder.
7. Partial Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such Expenses to which Indemnitee is entitled.
8. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the
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Securities and Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the Company's right
under public policy to indemnify Indemnitee.
9. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Company's directors, if Indemnitee is a director; or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company's key employees, agents or fiduciaries, if Indemnitee
is not an officer or director but is a key employee, agent or fiduciary.
10. Exceptions. Notwithstanding any other provision of this Agreement, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify or make Expense Advances to
Indemnitee with respect to Claims arising out of acts, omissions or transactions
for which Indemnitee is prohibited from receiving indemnification under
applicable law.
(b) Claims Initiated by Indemnitee. To indemnify or make Expense Advances to
Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee
and not by way of defense, counterclaim or crossclaim, except (i) with respect
to actions or proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other agreement or insurance policy
or under the Company's Certificate of Incorporation or Bylaws now or hereafter
in effect relating to Claims for Covered Events, (ii) in specific cases if the
Board of Directors has approved the initiation or bringing of such Claim, or
(iii) as otherwise required under Section 145 of the Delaware General
Corporation Law, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, Expense Advances, or insurance recovery, as
the case may be.
(c) Lack of Good Faith. To indemnify Indemnitee for any Expenses incurred by
the Indemnitee with respect to any action instituted (i) by Indemnitee to
enforce or interpret this Agreement, if a court having jurisdiction over such
action determines as provided in Section 13 that each of the material assertions
made by the Indemnitee as a basis for such action was not made in good faith or
was frivolous, or (ii) by or in the name of the Company to enforce or interpret
this Agreement, if a court having jurisdiction over such action determines as
provided in Section 13 that each of the material defenses asserted by Indemnitee
in such action was made in bad faith or was frivolous.
(d) Claims Under Section 16(b). To indemnify Indemnitee for Expenses and the
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
11. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors, assigns (including any direct or indirect successor
by purchase, merger, consolidation or otherwise to all or substantially all of
the business or assets of the Company), spouses, heirs and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect, and whether by purchase, merger, consolidation or otherwise)
to all, substantially all, or a substantial part, of the business or assets of
the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director, officer,
employee, agent or fiduciary (as applicable) of the Company or of any other
enterprise at the Company's request.
13. Expenses Incurred in Action Relating to Enforcement or Interpretation. In
the event that any action is instituted by Indemnitee under this Agreement or
under any liability insurance policies maintained by the Company to enforce or
interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee with respect to such action
(including without limitation attorneys' fees), regardless of whether Indemnitee
is ultimately successful in such
D-6
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action, unless as a part of such action a court having jurisdiction over such
action makes a final judicial determination (as to which all rights of appeal
therefrom have been exhausted or lapsed) that each of the material assertions
made by Indemnitee as a basis for such action was not made in good faith or was
frivolous; provided, however, that until such final judicial determination is
made, Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee in defense of such action
(including without limitation costs and expenses incurred with respect to
Indemnitee's counterclaims and cross-claims made in such action), unless as a
part of such action a court having jurisdiction over such action makes a final
judicial determination (as to which all rights of appeal therefrom have been
exhausted or lapsed) that each of the material defenses asserted by Indemnitee
in such action was made in bad faith or was frivolous; provided, however, that
until such final judicial determination is made, Indemnitee shall be entitled
under Section 3 to receive payment of Expense Advances hereunder with respect to
such action.
14. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
15. Notice. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
16. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
17. Severability. The provisions of this Agreement shall be severable in the
event that any of the provisions hereof (including any provision within a single
section, paragraph or sentence) are held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law. Furthermore, to the
fullest extent possible, the provisions of this Agreement (including without
limitation each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
18. Choice of Law. This Agreement, and all rights, remedies, liabilities,
powers and duties of the parties to this Agreement, shall be governed by and
construed in accordance with the laws of the State of Delaware as applied to
contracts between Delaware residents entered into and to be performed entirely
in the State of Delaware without regard to principles of conflicts of laws.
19. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
20. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by both the parties hereto. No waiver of any of
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the provisions of this Agreement shall be deemed to be or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver.
21. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
22. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
SPECTRIAN CORPORATION
By:
----------------------------------
Print Name:
-------------------------
Title:
-----------------------------
Address: 350 West Java Drive
Sunnyvale, California 94089
AGREED TO AND ACCEPTED
INDEMNITEE:
-------------------------------------------------
(signature)
Print Name:
------------------------------------
Address:
-------------------------------------
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PROXY SPECTRIAN CORPORATION PROXY
1997 ANNUAL MEETING OF SHAREHOLDERS
JULY 31, 1997
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned shareholder of SPECTRIAN CORPORATION, a California
corporation, hereby acknowledges receipt of the Notice of Annual Meeting of
Shareholders and Proxy Statement, each dated June 25, 1997, and hereby appoints
Garrett A. Garrettson and Bruce R. Wright, and each of them, proxies and
attorneys-in-fact, with full power to each of substitution, on behalf and in the
name of the undersigned, to represent the undersigned at the 1997 Annual Meeting
of Shareholders of SPECTRIAN CORPORATION to be held on July 31, 1997 at 10:00
a.m. local time, at 160 Gibraltar Court, Sunnyvale, California 94089 and at any
adjournment or adjournments thereof, and to vote all shares of Common Stock
which the undersigned would be entitled to vote if then and there personally
present, on the matters set forth on the reverse side.
(Continued, and to be signed on the other side)
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<PAGE>
<TABLE>
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<CAPTION>
<S> <C>
[ x ] Please mark
your votes
as this
1. ELECTION OF DIRECTORS: WITHHOLD
NOMINEES: FOR FOR ALL 2. Reincorporation of the Company as a FOR AGAINST ABSTAIN
Garrett A. Garrettson, [ ] [ ] Delaware Corporation: [ ] [ ] [ ]
James A. Cole, Eric A. Young,
Robert C. Wilson, Martin Cooper 3. Amendment of 1994 Employee Stock [ ] [ ] [ ]
Purchase Plan to increase the number of
INSTRUCTION: To withhold authority shares reserved for issuance thereunder:
to vote for any individual nominee,
write that nominee's name in the 4. Amendment of 1994 Director Option [ ] [ ] [ ]
space provided below. Plan to increase the number of shares
reserved for grant thereunder, increase
___________________________________ the size of the annual grant and
decrease the number of shares vesting
monthly with respect to such annual
grants:
5. Amendment of 1992 Stock Plan to [ ] [ ] [ ]
increase the number of shares reserved
for grant thereunder:
6. Appointment of KPMG Peat Marwick as [ ] [ ] [ ]
independent auditors of Spectrian
Corporation for the fiscal year ending
March 31, 1998.
and, in their discretion, upon such
other matter or matters which may
properly come before the meeting or any
adjournment or adjournments thereof.
THIS PROXY WILL BE VOTED AS DIRECTED OR,
IF NO CONTRARY DIRECTION IS INDICATED,
WILL BE VOTED FOR THE REINCOPORATION OF
THE COMPANY INTO DELAWARE, AS SAID
PROXIES DEEM ADVISABLE ON SUCH OTHER
MATTERS AS MAY PROPERLY COME BEFORE THE
MEETING, INCLUDING, AMONG OTHER THINGS,
CONSIDERATION OF ANY MOTION MADE FOR
ADJOURNMENT OF THE MEETING (INCLUDING,
WITHOUT LIMITATION, FOR PURPOSES OF
SOLICITING ADDITIONAL VOTES TO APPROVE
THE REINCORPORATION).
Signature(s) ____________________________________________________________________________ Dated ____________________, 1997
This proxy should be marked, dated and signed by the shareholder(s) exactly as his or her name appears hereon, and returned promptly
in the enclosed envelope. Persons signing in a fiduciary capacity should so indicate. If shares are held by joint tenants or as
community property, both should sign.
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</TABLE>
<PAGE>
Appendix 1
SPECTRIAN CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN
As Amended through June 1997
The following constitute the provisions of the 1994 Employee Stock
Purchase Plan of Spectrian Corporation.
1. Purpose. The purpose of the Plan is to provide employees of the Company and
its Designated Subsidiaries with an opportunity to purchase Common Stock of the
Company through accumulated payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Internal Revenue Code of 1986, as amended. The provisions of
the Plan, accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" shall mean the Common Stock of the Company.
(d) "Company" shall mean Spectrian Corporation and any
Designated Subsidiary of the Company.
(e) "Compensation" shall mean all base straight time gross
earnings, commissions, payments for overtime, shift premium, variable
compensation, incentive payments, bonuses, and other cash compensation.
(f) "Designated Subsidiaries" shall mean the Subsidiaries
which have been designated by the Board from time to time in its sole discretion
as eligible to participate in the Plan.
(g) "Employee" shall mean any individual who is an Employee of
the Company for tax purposes whose customary employment with the Company is at
least twenty (20) hours per week and more than five (5) months in any calendar
year. For purposes of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds 90 days and
the individual's right to reemployment is not guaranteed either by statute or by
contract, the employment relationship will be deemed to have terminated on the
91st day of such leave.
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<PAGE>
(h) "Enrollment Date" shall mean the first day of each
Offering Period.
(i) "Exercise Date" shall mean the last day of each Purchase
Period.
(j) "Fair Market Value" shall mean, as of any date, the value
of Common Stock determined as follows:
(1) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market of the National Association of Securities Dealers, Inc.
Automated Quotation ("Nasdaq") System, its Fair Market Value shall be the
closing sale price for the Common Stock (or the mean of the closing bid and
asked prices, if no sales were reported), as quoted on such exchange (or the
exchange with the greatest volume of trading in Common Stock) or system on the
date of such determination, as reported in The Wall Street Journal or such other
source as the Board deems reliable, or;
(2) If the Common Stock is quoted on the Nasdaq
System (but not on the National Market thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean of the closing bid and asked prices for the
Common Stock on the date of such determination, as reported in The Wall Street
Journal or such other source as the Board deems reliable, or;
(3) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Board.
For purposes of the Enrollment Date under the first Offering
Period under the Plan, the Fair Market Value shall be the initial price to the
public as set forth in the final Prospectus included within the Registration
Statement on Form S-1 filed with the Securities and Exchange Commission for the
initial public offering of the Company's Common Stock.
(k) "Offering Period" shall mean the period of approximately
twenty-four (24) months during which an option granted pursuant to the Plan may
be exercised, commencing on the first Trading Day on or after December 31 and
June 30 of each year and terminating on the last Trading Day in the periods
ending twenty-four months later. The first Offering Period shall begin on the
effective date of the Company's initial public offering of its Common Stock that
is registered with the Securities and Exchange Commission and shall end on the
last Trading Day on or before June 30, 1996. The duration and timing of Offering
Periods may be changed pursuant to Section 4 of this Plan.
(l) "Plan" shall mean this Employee Stock Purchase Plan.
(m) "Purchase Price" shall mean an amount equal to 85% of the
Fair Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
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(n) "Purchase Period" shall mean the approximately six month
period commencing after one Exercise Date and ending with the next Exercise
Date, except that the first Purchase Period of any Offering Period shall
commence on the Enrollment Date and end with the next Exercise Date. The first
Purchase Period of the first Offering Period shall begin on the effective date
of the Company's initial public offering of its Common Stock that is registered
with the Securities and Exchange Commission and shall end on the last Trading
Day on or before December 31, 1994.
(o) "Reserves" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(p) "Subsidiary" shall mean a corporation, domestic or
foreign, of which not less than 50% of the voting shares are held by the Company
or a Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
(q) "Trading Day" shall mean a day on which national stock
exchanges and the National Association of Securities Dealers Automated Quotation
(Nasdaq) System are open for trading.
3. Eligibility.
(a) Any Employee (as defined in Section 2(g)) who shall be
employed by the Company on the 1st day of April or the 1st day of October
immediately preceding a given Enrollment Date shall be eligible to participate
in the Plan; provided, however, that with respect to the first Offering Period,
any Employee who shall be employed by the Company five (5) business days prior
to the first Enrollment Date shall be eligible to participate in the Plan.
(b) Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under the Plan (i) if,
immediately after the grant, such Employee (or any other person whose stock
would be attributed to such Employee pursuant to Section 424(d) of the Code)
would own capital stock of the Company and/or hold outstanding options to
purchase such stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of the capital stock of the Company or of
any Subsidiary, or (ii) which permits his or her rights to purchase stock under
all employee stock purchase plans of the Company and its subsidiaries to accrue
at a rate which exceeds twenty-five thousand dollars ($25,000) worth of stock
(determined at the fair market value of the shares at the time such option is
granted) for each calendar year in which such option is outstanding at any time.
4. Offering Periods. The Plan shall be implemented by consecutive,
overlapping Offering Periods. Except for the first Offering Period, a new
Offering Period shall commence on the first Trading Day on or after December 31
and June 30 each year, or on such other date as the Board shall determine, and
continue thereafter until terminated in accordance with Section 19 hereof. The
first Offering Period shall begin on the effective date of the Company's initial
public offering of its
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Common Stock that is registered with the Securities and Exchange Commission. The
Board shall have the power to change the duration of Offering Periods (including
the commencement dates thereof) with respect to future offerings without
shareholder approval if such change is announced at least five (5) days prior to
the scheduled beginning of the first Offering Period to be affected thereafter.
5. Participation.
(a) An eligible Employee may become a participant in the Plan
by completing a subscription agreement authorizing payroll deductions in the
form of Exhibit A to this Plan and filing it with the Company's payroll office
five (5) business days prior to the applicable Enrollment Date.
(b) Payroll deductions for a participant shall commence on the
first payroll following the Enrollment Date and shall end on the last payroll in
the Offering Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in Section 10 hereof.
6. Payroll Deductions.
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each pay day
during the Offering Period in an amount not exceeding fifteen percent (15%) of
the Compensation which he or she receives on each pay day during the Offering
Period, and the aggregate of such payroll deductions during the Offering Period
shall not exceed fifteen percent (15%) of the participant's Compensation during
said Offering Period.
(b) All payroll deductions made for a participant shall be
credited to his or her account under the Plan and will be withheld in whole
percentages only. A participant may not make any additional payments into such
account.
(c) A participant may discontinue his or her participation in
the Plan as provided in Section 10 hereof. A participant may decrease the rate
of his or her payroll deductions to 0% at any time during the Offering Period by
completing and filing with the Company a new subscription agreement authorizing
the reduction in payroll deduction rate. At the beginning of each Purchase
Period, a participant may increase the rate of his or her payroll deductions by
completing or filing with the Company a new subscription agreement authorizing a
change in payroll deduction rate. A participant may resume participation by
completing and filing with the Company a new subscription agreement at least
five (5) days prior to the commencement of the next Offering Period or Purchase
Period, as applicable. A participant's subscription agreement shall remain in
effect for successive Offering Periods unless terminated as provided in Section
10 hereof.
(d) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) hereof, a
participant's payroll deductions may be decreased to 0% at such time during any
Purchase Period which is scheduled to end during the current calendar
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<PAGE>
year (the "Current Purchase Period") that the aggregate of all payroll
deductions which were previously used to purchase stock under the Plan in a
prior Purchase Period which ended during that calendar year plus all payroll
deductions accumulated with respect to the Current Purchase Period equal
$21,250. Payroll deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the first Purchase
Period which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in Section 10 hereof.
(e) At the time the option is exercised, in whole or in part,
or at the time some or all of the Company's Common Stock issued under the Plan
is disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon
the exercise of the option or the disposition of the Common Stock. At any time,
the Company may, but will not be obligated to, withhold from the participant's
compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefits attributable to sale or early disposition of
Common Stock by the Employee.
7. Grant of Option. On the Enrollment Date of each Offering Period,
each eligible Employee participating in such Offering Period shall be granted an
option to purchase on each Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Exercise Date and retained in the Participant's account as of the
Exercise Date by the applicable Purchase Price; provided that in no event shall
an Employee be permitted to purchase during each Purchase Period more than a
number of Shares determined by dividing $12,500 by the Fair Market Value of a
share of the Company's Common Stock on the Enrollment Date, and provided further
that such purchase shall be subject to the limitations set forth in Sections
3(b) and 12 hereof. Exercise of the option shall occur as provided in Section 8
hereof, unless the participant has withdrawn pursuant to Section 10 hereof, and
shall expire on the last day of the Offering Period.
8. Exercise of Option. Unless a participant withdraws from the Plan as
provided in Section 10 hereof, his or her option for the purchase of shares will
be exercised automatically on the Exercise Date, and the maximum number of full
shares subject to option shall be purchased for such participant at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account. No fractional shares will be purchased; any payroll deductions
accumulated in a participant's account which are not sufficient to purchase a
full share shall be retained in the participant's account for the subsequent
Purchase Period or Offering Period, subject to earlier withdrawal by the
participant as provided in Section 10 hereof. Any other monies left over in a
participant's account after the Exercise Date shall be returned to the
participant. During a participant's lifetime, a participant's option to purchase
shares hereunder is exercisable only by him or her.
9. Delivery. As promptly as practicable after each Exercise Date on
which a purchase of shares occurs, the Company shall arrange the delivery to
each participant, as appropriate, of the shares purchased upon exercise of his
or her option.
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<PAGE>
10. Withdrawal; Termination of Employment.
(a) A participant may withdraw all but not less than all the
payroll deductions credited to his or her account and not yet used to exercise
his or her option under the Plan at any time by giving written notice to the
Company in the form of Exhibit B to this Plan. All of the participant's payroll
deductions credited to his or her account will be paid to such participant
promptly after receipt of notice of withdrawal and such participant's option for
the Offering Period will be automatically terminated, and no further payroll
deductions for the purchase of shares will be made for such Offering Period. If
a participant withdraws from an Offering Period, payroll deductions will not
resume at the beginning of the succeeding Offering Period unless the participant
delivers to the Company a new subscription agreement.
(b) Upon a participant's ceasing to be an Employee (as defined
in Section 2(g) hereof), for any reason, he or she will be deemed to have
elected to withdraw from the Plan and the payroll deductions credited to such
participant's account during the Offering Period but not yet used to exercise
the option will be returned to such participant or, in the case of his or her
death, to the person or persons entitled thereto under Section 14 hereof, and
such participant's option will be automatically terminated.
11. Interest. No interest shall accrue on the payroll deductions of a
participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall be four hundred
seventy five thousand (475,000) shares, subject to adjustment upon changes in
capitalization of the Company as provided in Section 18 hereof. If, on a given
Exercise Date, the number of shares with respect to which options are to be
exercised exceeds the number of shares then available under the Plan, the
Company shall make a pro rata allocation of the shares remaining available for
purchase in as uniform a manner as shall be practicable and as it shall
determine to be equitable.
(b) The participant will have no interest or voting right in
shares covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan
will be registered in the name of the participant or in the name of the
participant and his or her spouse.
13. Administration.
(a) Administrative Body. The Plan shall be administered by the
Board or a committee of members of the Board appointed by the Board. The Board
or its committee shall have full and exclusive discretionary authority to
construe, interpret and apply the terms of the Plan, to determine eligibility
and to adjudicate all disputed claims filed under the Plan. Every finding,
decision and
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determination made by the Board or its committee shall, to the full extent
permitted by law, be final and binding upon all parties.
(b) Rule 16b-3 Limitations. Notwithstanding the provisions of
Subsection (a) of this Section 13, in the event that Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any successor provision ("Rule 16b-3") provides specific requirements for the
administrators of plans of this type, the Plan shall be only administered by
such a body and in such a manner as shall comply with the applicable
requirements of Rule 16b-3. Unless permitted by Rule 16b-3, no discretion
concerning decisions regarding the Plan shall be afforded to any committee or
person that is not "disinterested" as that term is used in Rule 16b-3.
14. Designation of Beneficiary.
(a) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such partici pant's death
subsequent to an Exercise Date on which the option is exercised but prior to
delivery to such participant of such shares and cash. In addition, a participant
may file a written designation of a beneficiary who is to receive any cash from
the participant's account under the Plan in the event of such participant's
death prior to exercise of the option. If a participant is married and the
designated beneficiary is not the spouse, spousal consent shall be required for
such designation to be effective.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such shares and/or cash to the executor or administrator of the estate
of the participant, or if no such executor or administrator has been appointed
(to the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known to
the Company, then to such other person as the Company may designate.
15. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds from an Offering Period in accordance with Section 10 hereof.
16. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts will be maintained for each
participant in the Plan. Statements of account will be given to participating
Employees at least annually, which statements
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will set forth the amounts of payroll deductions, the Purchase Price, the number
of shares purchased and the remaining cash balance, if any.
18. Adjustments Upon Changes in Capitalization, Dissolution,
Liquidation, Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required action
by the shareholders of the Company, the Reserves as well as the price per share
of Common Stock covered by each option under the Plan which has not yet been
exercised shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration". Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Offering Periods will end
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board, and all options granted thereunder will be exercised at
such time. Such exercise shall take place according to the provisions of Section
8 hereof.
(c) Merger or Asset Sale. In the event of a proposed sale of
all or substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each option under the Plan shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Board determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, to shorten the Offering Periods then in progress by
setting a new Exercise Date (the "New Exercise Date"). If the Board shortens the
Offering Periods then in progress in lieu of assumption or substitution in the
event of a merger or sale of assets, the Board shall notify each participant in
writing, at least ten (10) business days prior to the New Exercise Date, that
the Exercise Date for his option has been changed to the New Exercise Date and
that his option will be exercised automatically on the New Exercise Date, unless
prior to such date he has withdrawn from the Offering Period as provided in
Section 10 hereof. For purposes of this paragraph, an option granted under the
Plan shall be deemed to be assumed if, following the sale of assets or merger,
the option confers the right to purchase, for each share of option stock subject
to the option immediately prior to the sale of assets or merger, the
consideration (whether stock, cash or other securities or property) received in
the sale of assets or merger by holders of Common Stock for each share of Common
Stock held on the effective date of the transaction (and if such holders were
offered a choice of consideration, the type of consideration
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chosen by the holders of a majority of the outstanding shares of Common Stock);
provided, however, that if such consideration received in the sale of assets or
merger was not solely common stock of the successor corporation or its parent
(as defined in Section 424(e) of the Code), the Board may, with the consent of
the successor corporation, provide for the consideration to be received upon
exercise of the option to be solely common stock of the successor corporation or
its parent equal in fair market value to the per share consideration received by
holders of Common Stock and the sale of assets or merger.
19. Amendment or Termination.
(a) The Board of Directors of the Company may at any time and
for any reason terminate or amend the Plan. Except as provided in Section 18
hereof, no such termination can affect options previously granted, provided that
an Offering Period may be terminated by the Board of Directors on any Exercise
Date if the Board determines that the termination of the Plan is in the best
interests of the Company and its shareholders. Except as provided in Section 18
hereof, no amendment may make any change in any option theretofore granted which
adversely affects the rights of any participant. To the extent necessary to
comply with Rule 16b-3 or under Section 423 of the Code (or any successor rule
or provision or any other applicable law or regulation), the Company shall
obtain shareholder approval in such a manner and to such a degree as required.
(b) Without shareholder consent and without regard to whether
any participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock
for each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan.
20. Notices. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
21. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act
of 1934, as amended, the rules and regulations promulgated thereunder, and the
requirements of any
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stock exchange upon which the shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an option, the Company may
require the person exercising such option to represent and warrant at the time
of any such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
22. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 19 hereof.
24. Automatic Transfer to Low Price Offering Period. To the extent
permitted by Rule 16b-3 of the Exchange Act, if the Fair Market Value of the
Common Stock on any Exercise Date in an Offering Period is lower than the Fair
Market Value of the Common Stock on the Enrollment Date of such Offering Period,
then all participants in such Offering Period shall be automatically withdrawn
from such Offering Period immediately after the exercise of their option on such
Exercise Date and automatically re-enrolled in the immediately following
Offering Period as of the first day thereof.
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EXHIBIT A
SPECTRIAN CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
Enrollment Date: ____________________
_____ Original Application
_____ Change in Payroll Deduction Rate
_____ Change of Beneficiary(ies)
1. ______________ hereby elects to participate in the Spectrian
Corporation 1994 Employee Stock Purchase Plan (the "Employee Stock
Purchase Plan") and subscribes to pur chase shares of the Company's
Common Stock in accordance with this Subscription Agreement and the
Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount
of ____% of my Compensation on each payday (1-15%) during the Offering
Period in accordance with the Employee Stock Purchase Plan. (Please
note that no fractional percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase Price
determined in accordance with the Employee Stock Purchase Plan. I
understand that if I do not withdraw from an Offering Period, any
accumulated payroll deductions will be used to automatically exercise
my option.
4. I have received a copy of the complete "Spectrian Corporation 1994
Employee Stock Purchase Plan." I understand that my participation in
the Employee Stock Purchase Plan is in all respects subject to the
terms of the Plan. I understand that my ability to exercise the option
under this Subscription Agreement is subject to obtaining shareholder
approval of the Employee Stock Purchase Plan.
5. Shares purchased for me under the Employee Stock Purchase Plan should
be issued in the name(s) of (Employee or Employee and spouse only):
________________________________ .
6. I understand that if I dispose of any shares received by me pursuant to
the Plan within 2 years after the Enrollment Date (the first day of the
Offering Period during which I purchased such shares) or one year after
the Exercise Date, I will be treated for federal income tax purposes as
having received ordinary income at the time of such disposition in an
amount equal to the excess of the fair market value of the shares at
the time such shares were purchased over the price which I paid for the
shares. I hereby agree to notify the Company in writing within
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30 days after the date of any disposition of my shares and I will make
adequate provision for Federal, state or other tax withholding
obligations, if any, which arise upon the disposition of the Common
Stock. The Company may, but will not be obligated to, withhold from my
compensation the amount necessary to meet any applicable withholding
obligation including any withholding necessary to make available to the
Company any tax deductions or benefits attributable to sale or early
disposition of Common Stock by me. If I dispose of such shares at any
time after the expiration of the 2-year and 1-year holding periods, I
understand that I will be treated for federal income tax purposes as
having received income only at the time of such disposition, and that
such income will be taxed as ordinary income only to the extent of an
amount equal to the lesser of (1) the excess of the fair market value
of the shares at the time of such disposition over the purchase price
which I paid for the shares, or (2) 15% of the fair market value of the
shares on the first day of the Offering Period. The remainder of the
gain, if any, recognized on such disposition will be taxed as capital
gain.
7. I hereby agree not to sell or otherwise transfer any shares or other
securities of the Company during the 180-day period following the
effective date of a registration statement of the Company filed under
the 1933 Act; provided, however, that such restriction shall only apply
to the first two registration statements of the Company to become
effective under the 1933 Act which include securities to be sold on
behalf of the Company to the public in an underwritten public offering
under the 1933 Act. I hereby acknowledge that the Company may impose
stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such 180-day period.
8. I hereby agree to be bound by the terms of the Employee Stock Purchase
Plan. The effectiveness of this Subscription Agreement is dependent
upon my eligibility to participate in the Employee Stock Purchase Plan.
9. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
Employee Stock Purchase Plan:
NAME: (Please print) __________________________________________________________
(First) (Middle) (Last)
______________________________________ ____________________________________
Relationship
____________________________________
(Address)
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Employee's Social
Security Number: ____________________________________________
Employee's Address: ____________________________________________
____________________________________________
____________________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:_________________________ ______________________________________
Signature of Employee
______________________________________
Spouse's Signature
(If beneficiary other than spouse)
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EXHIBIT B
SPECTRIAN CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the Spectrian
Corporation 1994 Employee Stock Purchase Plan which began on ____________,
19____ (the "Enrollment Date") hereby notifies the Company that he or she hereby
withdraws from the Offering Period. He or she hereby directs the Company to pay
to the undersigned as promptly as practicable all the payroll deductions
credited to his or her account with respect to such Offering Period. The
undersigned understands and agrees that his or her option for such Offering
Period will be automatically termi nated. The undersigned understands further
that no further payroll deductions will be made for the purchase of shares in
the current Offering Period and the undersigned shall be eligible to participate
in succeeding Offering Periods only by delivering to the Company a new
Subscription Agreement.
Name and Address of Participant:
______________________________________
______________________________________
______________________________________
Signature:
______________________________________
Date: ________________________________
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Appendix 2
SPECTRIAN CORPORATION
1994 DIRECTOR OPTION PLAN
As Amended through June, 1997
1. Purposes of the Plan. The purposes of this 1994 Director Option Plan
are to attract and retain the best available personnel for service as Outside
Directors (as defined herein) of the Company, to provide additional incentive to
the Outside Directors of the Company to serve as Directors, and to encourage
their continued service on the Board.
All options granted hereunder shall be nonstatutory stock
options.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" means the Common Stock of the Company.
(d) "Company" means Spectrian Corporation, a California
corporation.
(e) "Continuous Status as a Director" means the absence of any
interruption or termination of service as a Director.
(f) "Director" means a member of the Board.
(g) "Employee" means any person, including officers and
Directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a Director's fee by the Company shall not be sufficient in and of
itself to constitute "employment" by the Company.
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(i) "Fair Market Value" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market of the National Association of Securities Dealers, Inc.
Automated Quotation ("Nasdaq") System, the Fair Market Value of a Share of
Common Stock shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such system or exchange (or the
exchange with the greatest volume of trading in Common Stock) on the date of
grant, as reported in The Wall Street Journal or such other source as the Board
deems reliable;
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(ii) If the Common Stock is quoted on the Nasdaq
System (but not on the National Market thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the day of determination, as
reported in The Wall Street Journal or such other source as the Board deems
reliable, or;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Board.
(j) "Option" means a stock option granted pursuant to the
Plan.
(k) "Optioned Stock" means the Common Stock subject to an
Option.
(l) "Optionee" means an Outside Director who receives an
Option.
(m) "Outside Director" means a Director who is neither an
Employee nor a representative of a shareholder owning more than one percent (1%)
of the outstanding shares of the Company.
(n) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(o) "Plan" means this 1994 Director Option Plan.
(p) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 10 of the Plan.
(q) "Subsidiary" means a "subsidiary corporation", whether now
or hereafter existing, as defined in Section 424(f) of the Internal Revenue Code
of 1986.
3. Stock Subject to the Plan. Subject to the provisions of Section 10
of the Plan, the maximum aggregate number of Shares which may be optioned and
sold under the Plan is 85,000 Shares (as adjusted for a one-for-two reverse
stock split approved by the Board of Directors in May 1994) (the "Pool") of
Common Stock. The Shares may be authorized but unissued, or reacquired Common
Stock.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for future grant under the Plan.
4. Administration and Grants of Options under the Plan.
(a) Procedure for Grants. The provisions set forth in this
Section 4(a) shall not be amended more than once every six months, other than to
comport with changes in the Code, the
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Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder. All grants of Options to Outside Directors under this Plan shall be
automatic and non-discretionary and shall be made strictly in accordance with
the following provisions:
(i) No person shall have any discretion to select which
Outside Directors shall be granted Options or to determine the number of Shares
to be covered by Options granted to Outside Directors.
(ii) Each Outside Director shall be automatically granted an
Option to purchase 5,000 Shares (the "First Option") on the date on which such
person first becomes an Outside Director, whether through election by the
shareholders of the Company or appointment by the Board to fill a vacancy,
following the effective date of this Plan as determined in accordance with
Section 6 hereof.
(iii) After the First Option has been granted to an Outside
Director, such Outside Director shall thereafter be automatically granted an
Option to purchase 5,000 Shares (a "Subsequent Option") at the next meeting of
the Board of Directors following the Annual Meeting of Shareholders in each year
commencing with the 1997 Annual Meeting of Shareholders, if on such date, he
shall have served on the Board for at least six (6) months.
(iv) Notwithstanding the provisions of subsections (ii) and
(iii) hereof, any exercise of an Option made before the Company has obtained
shareholder approval of the Plan in accordance with Section 16 hereof shall be
conditioned upon obtaining such shareholder approval of the Plan in accordance
with Section 16 hereof.
(v) The terms of a First Option granted hereunder shall be as
follows:
(A) the term of the First Option shall be ten (10)
years.
(B) the First Option shall be exercisable only while
the Outside Director remains a Director of the Company, except as set forth in
Section 8 hereof.
(C) the exercise price per Share shall be 100% of the
fair market value per Share on the date of grant of the First Option.
(D) the First Option shall become exercisable in
installments cumulatively as to 25% of the Shares subject to the First Option on
each anniversary of its date of grant.
(vi) The terms of a Subsequent Option granted hereunder shall
be as follows:
(A) the term of the Subsequent Option shall be ten
(10) years.
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(B) the Subsequent Option shall be exercisable only
while the Outside Director remains a Director of the Company, except as set
forth in Section 8 hereof.
(C) the exercise price per Share shall be 100% of the
fair market value per Share on the date of grant of the Subsequent Option.
(D) the Subsequent Option shall become exercisable as
to 2.08% of the Shares subject to the Subsequent Option on each monthly
anniversary of its date of grant.
(vii) In the event that any Option granted under the Plan
would cause the number of Shares subject to outstanding Options plus the number
of Shares previously purchased under Options to exceed the Pool, then the
remaining Shares available for Option grant shall be granted under Options to
the Outside Directors on a pro rata basis. No further grants shall be made until
such time, if any, as additional Shares become available for grant under the
Plan through action of the shareholders to increase the number of Shares which
may be issued under the Plan or through cancellation or expiration of Options
previously granted hereunder.
5. Eligibility. Options may be granted only to Outside Directors. All
Options shall be automatically granted in accordance with the terms set forth in
Section 4 hereof. An Outside Director who has been granted an Option may, if he
is otherwise eligible, be granted an additional Option or Options in accordance
with such provisions.
The Plan shall not confer upon any Optionee any right with
respect to continuation of service as a Director or nomination to serve as a
Director, nor shall it interfere in any way with any rights which the Director
or the Company may have to terminate his or her directorship at any time.
6. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the shareholders of the
Company as described in Section 16 of the Plan. It shall continue in effect for
a term of ten (10) years unless sooner terminated under Section 11 of the Plan.
7. Form of Consideration. The consideration to be paid for the Shares
to be issued upon exercise of an Option, including the method of payment, shall
consist of (i) cash, (ii) check, (iii) other shares which (x) in the case of
Shares acquired upon exercise of an Option, have been owned by the Optionee for
more than six (6) months on the date of surrender, and (y) have a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the
Shares as to which said Option shall be exercised, (iv) delivery of a properly
executed exercise notice together with such other documentation as the Company
and the broker, if applicable, shall require to effect an exercise of the Option
and delivery to the Company of the sale or loan proceeds required to pay the
exercise price, or (v) any combination of the foregoing methods of payment.
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8. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times as are set forth in
Section 4 hereof; provided, however, that no Options shall be exercisable until
shareholder approval of the Plan in accordance with Section 16 hereof has been
obtained.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may consist of any consideration and method of payment
allowable under Section 7 of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
A share certificate for the number of Shares so acquired shall be issued to the
Optionee as soon as practicable after exercise of the Option. No adjustment will
be made for a dividend or other right for which the record date is prior to the
date the stock certificate is issued, except as provided in Section 10 of the
Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Rule 16b-3. Options granted to Outside Directors must
comply with the applicable provisions of Rule 16b-3 promulgated under the
Exchange Act or any successor thereto and shall contain such additional
conditions or restrictions as may be required thereunder to qualify Plan
transactions, and other transactions by Outside Directors that otherwise could
be matched with Plan transactions, for the maximum exemption from Section 16 of
the Exchange Act.
(c) Termination of Continuous Status as a Director. In the
event an Optionee's Continuous Status as a Director terminates (other than upon
the Optionee's death or total and permanent disability (as defined in Section
22(e)(3) of the Code)), the Optionee may exercise his or her Option, but only
within three (3) months from the date of such termination, and only to the
extent that the Optionee was entitled to exercise it at the date of such
termination (but in no event later than the expiration of its ten (10) year
term). To the extent that the Optionee was not entitled to exercise an Option at
the date of such termination, and to the extent that the Optionee does not
exercise such Option (to the extent otherwise so entitled) within the time
specified herein, the Option shall terminate.
(d) Disability of Optionee. In the event Optionee's Continuous
Status as a Director terminates as a result of total and permanent disability
(as defined in Section 22(e)(3) of the
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Code), the Optionee may exercise his or her Option, but only within twelve (12)
months from the date of such termination, and only to the extent that the
Optionee was entitled to exercise it at the date of such termination (but in no
event later than the expiration of its ten (10) year term). To the extent that
the Optionee was not entitled to exercise an Option at the date of termination,
or if he or she does not exercise such Option (to the extent otherwise so
entitled) within the time specified herein, the Option shall terminate.
(e) Death of Optionee. In the event of an Optionee's death,
the Optionee's estate or a person who acquired the right to exercise the Option
by bequest or inheritance may exercise the Option, but only within twelve (12)
months following the date of death, and only to the extent that the Optionee was
entitled to exercise it on the date of death (but in no event later than the
expiration of its ten (10) year term). To the extent that the Optionee was not
entitled to exercise an Option at the date of death, and to the extent that the
Optionee's estate or a person who acquired the right to exercise such Option
does not exercise such Option (to the extent otherwise so entitled) within the
time specified herein, the Option shall terminate.
9. Non-Transferability of Options. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
10. Adjustments Upon Changes in Capitalization, Dissolution, Merger,
Asset Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required action
by the shareholders of the Company, the number of Shares covered by each
outstanding Option and the number of Shares which have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued Shares effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of Shares
subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, it will terminate immediately prior to the
consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option shall be assumed or an
equivalent option shall be substituted by the successor corporation or a
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Parent or Subsidiary of the successor corporation. In the event that the
successor corporation does not agree to assume the Option or to substitute an
equivalent option, each outstanding Option shall become fully vested and
exercisable, including as to Shares as to which it would not otherwise be
exercisable. If an Option becomes fully vested and exercisable in the event of a
merger or sale of assets, the Board shall notify the Optionee that the Option
shall be fully exercisable for a period of thirty (30) days from the date of
such notice, and the Option shall terminate upon the expiration of such period.
For the purposes of this paragraph, the Option shall be considered assumed if,
following the merger or sale of assets, the option or right confers the right to
purchase, for each Share of Optioned Stock subject to the Option immediately
prior to the merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares).
11. Amendment and Termination of the Plan.
(a) Amendment and Termination. Except as set forth in Section
4, the Board may at any time amend, alter, suspend, or discontinue the Plan, but
no amendment, alteration, suspension, or discontinuation shall be made which
would impair the rights of any Optionee under any grant theretofore made,
without his or her consent. In addition, to the extent necessary and desirable
to comply with Rule 16b-3 under the Exchange Act (or any other applicable law or
regulation), the Company shall obtain shareholder approval of any Plan amendment
in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated.
12. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date determined in accordance with Section 4 hereof.
13. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated there
under, state securities laws, and the requirements of any stock exchange upon
which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares, if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
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Inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
14. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
15. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
16. Shareholder Approval. Continuance of the Plan shall be subject to
approval by the shareholders of the Company at or prior to the first annual
meeting of shareholders held subsequent to the granting of an Option hereunder.
Such shareholder approval shall be obtained in the degree and manner required
under applicable state and federal law.
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Appendix 3
SPECTRIAN CORPORATION
1992 STOCK PLAN
As amended through June, 1997
1. Purposes of the Plan. The purposes of this Stock Plan are to attract
and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and Consultants of
the Company and its Subsidiaries and to promote the success of the Company's
business. Options granted under the Plan may be incentive stock options (as
defined under Section 422 of the Code) or nonstatutory stock options, as
determined by the Administrator at the time of grant of an option and subject to
the applicable provisions of Section 422 of the Code, as amended, and the
regulations promulgated thereunder.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees
as shall be administering the Plan, in accordance with Section 4 of the Plan.
(b) "Applicable Laws" means the legal requirements relating to
the administration of stock option plans of California corporate and securities
laws and of the Code.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
(e) "Committee" means a Committee appointed by the Board in
accordance with paragraph (a) of Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means Spectrian Corporation, a California
corporation.
(h) "Consultant" means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services and who is
compensated for such services. The term "Consultant" shall not include Directors
who are paid only a director's fee by the Company or who are not compensated by
the Company for their services as Directors.
(i) "Continuous Status as an Employee or Consultant" means
that the employment or consulting relationship with the Company, any Parent or
Subsidiary is not interrupted or terminated. Continuous Status as an Employee or
Consultant shall not be considered interrupted in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor. A
leave of absence approved by the Company shall include sick leave, military
leave, or any other personal leave. For purposes of
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Incentive Stock Options, no such leave may exceed 90 days, unless reemployment
upon expiration of such leave is guaranteed by statute or contract, including
Company policies. If reemployment upon expiration of a leave of absence approved
by the Company is not so guaranteed, on the 91st day of such leave any Incentive
Stock Option held by the Optionee shall cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a Nonstatutory Stock
Option.
(j) "Director" means a member of the Board.
(k) "Disability" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(l) "Employee" means any person, including Officers and
Directors, employed by the Company or any Parent or Subsidiary of the Company.
Neither service as a Director nor the payment of Director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(n) "Fair Market Value" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market of the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") System, the Fair Market Value of a Share of
Common Stock shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such system or exchange (or the
exchange with the greatest volume of trading in Common Stock) on the last market
trading day prior to the day of determination, as reported in the Wall Street
Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ
System (but not on the Nasdaq National Market thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between the high and
low asked prices for the Common Stock or on the last market trading day prior to
the day of determination, as reported in the Wall Street Journal or such other
source as the Administrator deems reliable;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Administrator.
(o) "Incentive Stock Option" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code and the regulations promulgated thereunder.
(p) "Nonstatutory Stock Option" means an Option that is not
intended to qualify as an Incentive Stock Option.
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(q) "Notice of Grant" means a written notice evidencing
certain terms and conditions of an individual Option. The Notice of Grant is
part of the Option Agreement.
(r) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(s) "Option" means a stock option granted pursuant to the
Plan.
(t) "Option Agreement" means a written agreement between the
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of the
Plan.
(u) "Option Exchange Program" means a program whereby
outstanding options are surrendered in exchange for options with a lower
exercise price.
(v) "Optioned Stock" means the Common Stock subject to an
Option.
(w) "Optionee" means an Employee or Consultant who holds an
outstanding Option.
(x) "Parent" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(y) "Plan" means this 1992 Stock Plan.
(z) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b- 3, as in effect when discretion is being exercised with
respect to the Plan.
(aa) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(bb) "Subsidiary" means a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
the Plan, the total number of Shares reserved and available for distribution
pursuant to awards made under the Plan shall be 3,300,886 (as adjusted for a
one-for-two reverse stock split approved by the Board of Directors in May 1994).
The Shares may be authorized, but unissued or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant or sale under the Plan. Should the Company reacquire vested Shares
which were issued pursuant to the exercise of an Option, such Shares shall
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not become available for future grant under the Plan. However, if unvested
Shares are repurchased by the Company at their original purchase price, and the
original purchaser of such Shares did not receive any benefits of ownership of
such Shares, such Shares shall become available for future grant under the Plan.
For purposes of the preceding sentence, voting rights shall not be considered a
benefit of Share ownership.
4. Administration of the Plan.
(a) Procedure.
(i) Administration With Respect to Directors and
Officers. With respect to grants of Options to Employees who are also Officers
or Directors of the Company, the Plan shall be administered by (A) the Board if
the Board may administer the Plan in compliance with Rule 16b-3 promulgated
under the Exchange Act or any successor rule ("Rule 16b-3") with respect to a
plan intended to qualify thereunder as a discretionary plan, or (B) a Committee
designated by the Board to administer the Plan, which Committee shall be
constituted in such a manner as to permit the Plan to comply with Rule 16b-3
with respect to a plan intended to qualify thereunder as a discretionary plan.
Once appointed, such Committee shall continue to serve in its designated
capacity until otherwise directed by the Board. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies, however caused, and remove all members of the
Committee and thereafter directly administer the Plan, all to the extent
permitted by Rule 16b-3 with respect to a plan intended to qualify thereunder as
a discretionary plan.
(ii) Administration With Respect to Consultants and
Other Employees. With respect to grants of Options to Employees or Consultants
who are neither Directors nor Officers of the Company, the Plan shall be
administered by (A) the Board or (B) a Committee designated by the Board, which
Committee shall be constituted in such a manner as to satisfy Applicable Laws.
Once appointed, such Committee shall continue to serve in its designated
capacity until otherwise directed by the Board. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies, however caused, and remove all members of the
Committee and thereafter directly administer the Plan, all to the extent
permitted by the Applicable Laws.
(iii) Multiple Administrative Bodies. If permitted by
Rule 16b-3, the Plan may be administered by different bodies with respect to
Directors, non-Director Officers and Employees who are neither Directors nor
Officers and Consultants who are not Directors.
(b) Powers of the Administrator. Subject to the provisions of the
Plan and in the case of a Committee, the specific duties delegated by the Board
to such Committee, the Administrator shall have the authority, in its
discretion:
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(i) to determine the Fair Market Value of the Common
Stock, in accordance with Section 2(n) of the Plan;
(ii) to select the Officers, Consultants and
Employees to whom Options may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options
are granted hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each award granted hereunder;
(v) to approve forms of agreement for use under the
Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted hereunder
(including, but not limited to, the share price and any restriction or
limitation or waiver of forfeiture restrictions regarding any Option and/or the
shares of Common Stock relating thereto, based in each case on such factors as
the Administra tor shall determine, in its sole discretion);
(vii) to determine whether and under what
circumstances an Option may be settled in cash under subsection 9(f) instead of
Common Stock;
(viii) to reduce the exercise price of any Option to
the then current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option shall have declined since the date the Option was
granted;
(ix) to determine the terms and restrictions
applicable to Options;
(x) to provide for the early exercise of Options for
the purchase of unvested Shares, subject to such terms and conditions as the
Administrator may determine; and
(xi) to modify or amend each Option (subject to
Section 13(b) of the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is otherwise
provided for in the Plan;
(xii) to authorize any person to execute on behalf of
the Company any instrument required to effect the grant of an Option previously
granted by the Administrator;
(xiii) to institute an Option Exchange Program; and
(xiv) to make all other determinations deemed
necessary or advisable for administering the Plan.
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(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding.
5. Eligibility.
(a) Nonstatutory Stock Options may be granted only to
Employees and Consultants. Incentive Stock Options may be granted only to
Employees. An Employee or Consultant who has been granted an Option may, if he
or she is otherwise eligible, be granted additional Options.
(b) Each Option shall be evidenced by a written Option
agreement, which shall expressly identify the Options as Incentive Stock Options
or as Nonstatutory Stock Options, and which shall be in such form and contain
such provisions as the Administrator shall from time to time deem appro priate.
However, notwithstanding such designations, to the extent that the aggregate
Fair Market Value of the Shares with respect to which Options designated as
Incentive Stock Options are exercisable for the first time by any Optionee
during any calendar year (under all plans of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options shall be treated as
Nonstatutory Stock Options.
(c) For purposes of Section 5(b) above, Incentive Stock
Options shall be taken into account in the order in which they were granted, and
the Fair Market Value of the Shares shall be determined as of the time the
Option with respect to such Shares is granted.
(d) Neither the Plan nor any Option shall confer upon any
Optionee any right with respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere in any way with the
Optionee's right or the Company's right to terminate the Optionee's employment
or consulting relationship at any time, with or without cause.
(e) The following limitations shall apply to grants of Options
to Employees:
(i) No Employee shall be granted, in any fiscal year
of the Company, Options to purchase more than 200,000 Shares.
(ii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization as
described in Section 11.
(iii) If an Option is canceled (other than in
connection with a transaction described in Section 11, the canceled Option will
be counted against the limit set forth in Section 5(e)(i). For this purpose, if
the exercise price of an Option is reduced, the transaction will be treated as a
cancellation of the Option and the grant of a new Option.
6. Term of Plan. Subject to Section 17 of this Plan, the Plan shall
become effective upon the earlier to occur of its adoption by the Board or its
approval by the shareholders of the Company as
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described in Section 17. It shall continue in effect for a term of ten (10)
years unless sooner ter minated under Section 13 of this Plan.
7. Term of Option. The term of each Option shall be the term stated in
the Notice of Grant; provided, however, that in the case of an Incentive Stock
Option, the term shall be no more than ten (10) years from the date of grant
thereof or such shorter term as may be provided in the Notice of Grant. However,
in the case of an Option granted to an Optionee who, at the time the Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, the term of
the Option shall be five (5) years from the date of grant thereof or such
shorter term as may be provided in the Notice of Grant.
8. Option Exercise Price and Consideration.
(a) The per Share exercise price for the Shares issuable
pursuant to an Option shall be such price as is determined by the Administrator,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time
of the grant of such Incentive Stock Option, owns stock representing more than
ten percent (10%) of the voting power or value of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no
less than 110% of the Fair Market Value per Share on the date of grant.
(B) granted to any other Employee, the per
Share exercise price shall be no less than 100% of the Fair Market Value per
Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of
the grant of such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power or value of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price shall be no
less than 110% of the Fair Market Value per Share on the date of grant.
(B) granted to any person, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant.
(b) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be determined
by the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant) and may consist entirely of (1) cash, (2)
check, (3) promissory note, (4) other Shares which (x) in the case of Shares
acquired upon exercise of an Option either have been owned by the Optionee for
more than six months on the date of surrender or were not acquired, directly or
indirectly, from the Company, and (y) have a Fair
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Market Value on the date of surrender equal to the aggregate exercise price of
the Shares as to which said Option shall be exercised, (6) delivery of a
properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company the amount of sale or loan proceeds
required to pay the exercise price, (7) a reduction in the amount of any Company
liability to the Optionee, including any liability attributable to the
Optionee's participation in any Company-sponsored deferred compensation program
or arrangement; (8) any combination of the foregoing methods of payment, or (9)
such other consideration and method of payment for the issuance of Shares to the
extent permitted under Applicable Laws.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator and as shall be permissible under
the terms of the Plan.
An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed to be exercised when
written notice of such exercise has been given to the Company in accordance with
the terms of the Option by the person entitled to exercise the Option and full
payment for the Shares with respect to which the Option is exercised has been
received by the Company. Full payment may, as authorized by the Administrator
(and, in the case of an Incentive Stock Option, determined at the time of grant)
and permitted by the Option Agreement consist of any consideration and method of
payment allowable under subsection 8(b) of the Plan. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate evidencing
such Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock certificate is issued,
except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter shall be available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.
(b) Rule 16b-3. Options granted to persons who are subject to
Section 16 of the Exchange Act ("Insiders") must comply with the applicable
provisions of Rule 16b-3 and shall contain such additional conditions or
restrictions as may be required thereunder to qualify for the maximum exemption
from Section 16 of the Exchange Act with respect to Plan transactions.
(c) Termination of Employment or Consulting Relationship. Upon
termination of an Optionee's Continuous Status as an Employee or Consultant
(other than upon the Optionee's death or Disability), the Optionee may, but only
within thirty (30) days (or such other period of time as is
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determined by the Administrator) after the date of such termination, exercise
his or her Option to the extent that it was exercisable at the date of such
termination. If after termination the Optionee does not exercise such Option to
the extent so entitled within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(d) Disability of Optionee. In the event of termination of an
Optionee's Continuous Status as an Employee or Consultant as a result of the
Optionee's Disability, the Optionee may, but only within twelve (12) months from
the date of such termination (but in no event later than the expiration of the
term of such Option as set forth in the Option Agreement), exercise the Option
to the extent that the Optionee was entitled to exercise it at the date of such
termination. If after termination the Optionee does not exercise such Option to
the extent so entitled within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(e) Death of Optionee. In the event of an Optionee's death,
the Option may be exercised at any time within six (6) months following the date
of death by the Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the extent of the
right to exercise that had accrued at the date of the Optionee's death (but in
no event later than the expiration of the term of such Option as set forth in
the Notice of Grant). If, after death, the Optionee's estate or a person who
acquires the right to exercise the Option by bequest or inheritance does not
exercise the Option within the time specified herein, the Option shall terminate
and the Shares covered by such Option shall revert to the Plan.
(f) The Administrator may at any time offer to buy out for a
payment in cash or Shares, an Option previously granted, based on such terms and
conditions as the Administrator shall establish and communicate to the Optionee
at the time such offer is made.
10. Non-Transferability of Options. Options may not be sold, pledged,
assigned, hypothecat ed, transferred or disposed of in any manner other than by
will or by the laws of descent or dis tribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger.
(a) Subject to any required action by the shareholders of the
Company, the number of Shares covered by each outstanding Option, and the number
of Shares which have been authorized for issuance under the Plan but as to which
no Options have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the price per Share covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued Shares resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the aggregate number of
issued Shares effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed
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to have been "effected without receipt of consideration." Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Company of Shares of stock of any class, or securities convertible into Shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of Shares subject to an Option.
In the event of the proposed dissolution or liquidation of the
Company, the Board shall notify the Optionee at least fifteen (15) days prior to
such proposed action. To the extent it has not been previously exercised, the
Option will terminate immediately prior to the consummation of such proposed
action. In the event of a merger of the Company with or into another
corporation, or the sale of substantially all of the assets of the Company, each
outstanding Option shall be assumed or an equivalent option shall be substituted
by such successor corporation or a parent or subsidiary of such successor
corporation. For the purposes of this paragraph, the Option shall be considered
assumed if, following the merger or sale of assets, the option confers the right
to purchase, for each Share of Optioned Stock subject to the Option immediately
prior to the merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets was not solely common stock of the successor corporation or its Parent,
the Administrator may, with the consent of the successor corporation, provide
for the consideration to be received upon the exercise of the Option, for each
Share of Optioned Stock subject to the Option, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale of
assets.
12. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such later date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend, or discontinue the Plan, but no amendment, alteration,
suspension, or discontinuation shall be made which would impair the rights of
any Optionee under any grant theretofore made, without his or her consent. In
addition, to the extent necessary and desirable to comply with Rule 16b-3 under
the Exchange Act or under Section 422 of the Code (or any other applicable law
or regulation), the Company shall obtain shareholder approval of any Plan
amendment in such a manner and to such a degree as required.
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(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated.
14. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an Option unless the exercise of such Option and the issuance and
delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the require ments of any stock exchange upon which the Shares may then be
listed, and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
As a condition to the exercise of an Option or the issuance of
Shares on exercise of an Option, the Company may require the person exercising
such Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present intention
to sell or distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned relevant
provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the non-issuance or
sale of such Shares as to which such requisite authority shall not have been
obtained.
16. Agreements. Options shall be evidenced by written agreements in
such form as the Board shall approve from time to time.
17. Shareholder Approval. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within twelve (12) months before or
after the date the Plan is adopted as provided in Section 6. Such shareholder
approval shall be obtained in the degree and manner required under applicable
state and federal law.
-11-
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<TABLE>
<CAPTION>
SEE REVERSE SIDE FOR STOCK OPTION AGREEMENT
name, firstname
address1
address2
address3
address4
[GRAPHIC OMITTED]
SPECTRIAN CORPORATION
NOTICE OF STOCK OPTION GRANT
You have been granted an option to purchase Common Stock of Spectrian Corporation (the "Company") under the terms of the Spectrian
Corporation 1992 Stock Plan as follows:
<S> <C> <C> <C>
Grant Number grantnumber Type of Option granttype
Date of Grant grantdate Plan plan
Option Price Per Share optionprice Term/Expiration Date p1expiredate
Total Number of Shares Granted shares Vesting Commencement Date grantdate
Vesting Schedule: This Option shall be exercisable cumulatively, to the extent of 1/48th of the total Number of Shares Granted for
each full calendar month of your Continuous Status as an Employee or Consultant since the Vesting Commencement Date; provided,
however, that this Option shall not be exercisable prior to one year from the Vesting Commencement Date. Termination Period: 3
months after termination of employment or consulting relationship (but in no event later than the Expiration Date).
SPECTRIAN CORPORATION
By: ___________________________
Title: ___________________________
This Notice of Grant does not represent a stock interest in the Company, which shall occur only upon the exercise of this stock
option pursuant to its terms.
</TABLE>
<PAGE>
SPECTRIAN CORPORATION
STOCK OPTION AGREEMENT
1. Grant of Option. The Plan Administrator of Spectrian Corporation, a
California corporation (the "Company"), hereby grants to the Optionee named in
the Notice of Grant (the "Optionee"), an option (the "Option") to purchase a
total number of shares of Common Stock (the "Shares") set forth in the Notice of
Grant, at the exercise price per share set forth in the Notice of Grant (the
"Exercise Price") subject to the terms, definitions and provisions of the
Spectrian Corporation 1992 Stock Plan (the "Plan") adopted by the Company, which
is incorporated herein by reference. Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Option.
If designated an Incentive Stock Option, this Option is intended to
qualify as an Incentive Option as defined in Section 422A of the Code.
2. Exercise of Option. This Option shall be exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and with the
provisions of Section 9 of the Plan as follows:
(i) Right to Exercise.
(a) This Option may not be exercised for a fraction of a
share.
(b) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option is governed by
Sections 7, 8 and 9 below, subject to the limitation contained in subsection
2(i)(c).
(c) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in the Notice of Grant.
(ii) Method of Exercise. This Option shall be exercisable by written
notice (in the form available from the Company) which shall state the election
to exercise the Option, the number of Shares in respect of which the Option is
being exercised, and such other representations and agreements as to the
holder's investment intent with respect to such shares of Common Stock as may be
required by the Company pursuant to the provisions of the Plan. Such written
notice shall be signed by the Optionee and shall be delivered in person or by
certified mail to the Secretary of the Company. The written notice shall be
accompanied by payment of the exercise price. This Option shall be deemed to be
exercised upon receipt by the Company of such written notice accompanied by the
Exercise Price.
No Shares will be issued pursuant to the exercise of an Option
unless such issuance and such exercise shall comply with all relevant provisions
of law and the requirements of any stock exchange upon which the Shares may then
be listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
3. Optionee's Representations. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised,
Optionee shall, if required by the Company, concurrently with the exercise of
all or any portion of this Option, deliver to the Company his Investment
Representation Statement in the form provided by the Company, and shall read the
applicable rules of the Commissioner of Corporations attached to such Investment
Representation Statement.
<PAGE>
4. Method of Payment. Payment of the Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(i) cash; or
(ii) check; or
(iii) surrender of other shares of Common Stock of the Company which (A)
either have been owned by the Optionee for more than six (6) months on the date
of surrender or were not acquired, directly or indirectly, from the Company and
(B) have a fair market value on the date of surrender equal to the Exercise
Price of the Shares as to which the Option is being exercised.
5. Restrictions on Exercise. This Option may not be exercised until such
time as the Plan has been approved by the shareholders of the Company, or if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as
promulgated by the Federal Reserve Board. As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
6. Section 16 Restrictions. Options granted to persons who are subject to
Section 16 of the Exchange Act ("Insiders") may not be exercised for a period of
at least six months from the date of grant, except in the case of death or
disability.
7. Termination of Relationship. In the event Optionee's Continuous Status
as an Employee or consultant terminates, Optionee may, to the extent otherwise
so entitled at the date of such termination (the "Termination Date"), exercise
this Option during the Termination Period set out in the Notice of Grant. To the
extent that Optionee was not entitled to exercise this Option at the date of
such termination, or if the Optionee does not exercise this Option within the
time specified herein, the Option shall terminate.
8. Disability of Optionee. Notwithstanding the provisions of Section 7
above, in the event Optionee's Continuous Status as an Employee or Consultant
terminates as a result of total and permanent disability (as defined in Section
22(e)(3) of the Code), Optionee may, but only within twelve (12) months from the
date of termination of employment or consultancy (but in no event later than the
date of expiration of the term of this Option as set forth in Section 11 below),
exercise the Option to the extent otherwise so entitled at the date of such
termination. To the extent that Optionee was not entitled to exercise the Option
at the date of termination, or if Optionee does not exercise such Option (to the
extent otherwise so entitled) within the time specified herein, the Option shall
terminate.
9. Death of Optionee. The Option may be exercised at any time within
twelve (12) months after the Optionee's death (but in no event later than the
date of expiration of the term of this Option as set forth in Section 11 below),
by Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent the Optionee could
exercise the Option at the date of death.
10. Non-Transferability of Option. This Option may not be transferred or
assigned in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Optionee only by him.
The terms of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
<PAGE>
11. Term of Option. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
12. Tax Consequences. Set forth below is a brief summary as of the date of
this Option of some of the federal tax consequences of exercise of this Option
and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE
TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX
ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(i) Exercise of ISO. If this Option qualifies as an ISO, there will be
no regular federal income tax liability upon the exercise of the Option,
although the excess, if any, of the fair market value of the Shares on the date
of exercise over the Exercise Price will be treated as an adjustment to the
alternative minimum tax for federal tax purposes and may subject the Optionee to
the alternative minimum tax.
(ii) Exercise of Nonqualified Stock Option. If this Option does not
qualify as an ISO, there may be a regular federal income tax liability upon the
exercise of the Option. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the fair market value of the Shares on the date of exercise over the
Exercise Price. If Optionee is an employee, the Company will be required to
withhold from Optionee's compensation or collect from Optionee and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(iii) Disposition of Shares. In the case of an NSO, if Shares are held
for at least one year, any gain realized on disposition of the Shares will be
treated as long-term capital gain for federal income tax purposes. In the case
of an ISO, if Shares transferred pursuant to the Option are held for at least
one year after exercise and are disposed of at least two years after the Date of
Grant, any gain realized on disposition of the Shares will also be treated as
long-term capital gain for federal income tax purposes. If Shares purchased
under an ISO are disposed of within such one-year period or within two years
after the Date of Grant, any gain realized on such disposition will be treated
as compensation income (taxable at ordinary income rates) to the extent of the
excess, if any, of the fair market value of the Shares on the date of exercise
over the Exercise Price.
(iv) Notice of Disqualifying Disposition of ISO Shares. If the Option
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the date one
year after transfer of such Shares to the Optionee upon exercise of the ISO, the
Optionee shall immediately notify the Company in writing of such disposition.
Optionee agrees that Optionee may be subject to income tax withholding by the
Company on the compensation income recognized by the Optionee from the early
disposition by payment in cash or out of the current earnings paid to the
Optionee.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
THE OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT AT THE
WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT NOTHING IN THIS OPTION, NOR IN THE COMPANY'S 1992 STOCK PLAN WHICH IS
INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY
<PAGE>
RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY,
NOR SHALL IT INTERFERE IN ANY WAY WITH HIS RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE HIS EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and certain
information, related thereto and represents that he is familiar with the terms
and provisions thereof, and hereby accepts this Option subject to all of the
terms and provisions of the Plan. Optionee has reviewed the Plan and this Option
in their entirety, has had an opportunity to obtain the advice of counsel prior
to executing this Option and fully understands all provisions relating to this
Option. Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board upon any questions arising under the
Plan or this Option.
Dated: _______________________ _______________________________
Optionee Signature
