0000950144-01-504951.txt : 20011018 0000950144-01-504951.hdr.sgml : 20011018 ACCESSION NUMBER: 0000950144-01-504951 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010730 EFFECTIVENESS DATE: 20010730 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WJ COMMUNICATIONS INC CENTRAL INDEX KEY: 0000105006 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 941402710 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-66244 FILM NUMBER: 1692555 BUSINESS ADDRESS: STREET 1: 3333 HILLVIEW AVE CITY: PALO ALTO STATE: CA ZIP: 94304-1223 BUSINESS PHONE: 6504934141 MAIL ADDRESS: STREET 1: 3333 HILLVIEW AVENUE CITY: PALO ALTO STATE: CA ZIP: 94304-1223 FORMER COMPANY: FORMER CONFORMED NAME: WATKINS JOHNSON CO DATE OF NAME CHANGE: 19920703 S-8 1 g70728s-8.txt WJ COMMUNICATIONS, INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 2001. REGISTRATION NO. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 WJ COMMUNICATIONS, INC. (Exact name of registrant as specified in its charter) DELAWARE 94-1402710 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 401 RIVER OAKS PARKWAY SAN JOSE, CALIFORNIA 95134 (408) 577-6200 (Address, including zip code, and telephone number, including area code of registrant's principal executive offices) WJ COMMUNICATIONS, INC. 2001 EMPLOYEE STOCK INCENTIVE PLAN WJ COMMUNICATIONS, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN (Full Title of the Plans) William T. Freeman Executive Vice President and Chief Financial Officer WJ Communications, Inc. 401 River Oaks Parkway San Jose, CA 95134 (408) 577-6200 (Name, Address and Telephone number of Agent for Service) Copies to: Darrell C. Smith, Esquire Shumaker, Loop & Kendrick, LLP 101 E. Kennedy Blvd., Suite 2800 Tampa, Florida 33602 (813) 229-7600 CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE REGISTRATION FEE ---------------------------------------------------------------------------------------------------------------------------------- Common Stock $.01 Par Value ... 3,500,000 shares(1) $3.83(2) $13,405,000 $3,351.25 ----------------------------------------------------------------------------------------------------------------------------------
-------------------- (1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement also covers any additional number of shares as may be available under the Plans in the event of a stock dividend, stock split, recapitalization or other similar change to the Common Stock. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457. Pursuant to Rule 457(h)(1), the fee is calculated based on the average of the high and low market price of the Company's shares on July 26, 2001, a date within 5 business days prior to the filing of this registration statement. 2 PART I INFORMATION REQUIRED IN THE PROSPECTUS ITEM 1. PLAN INFORMATION. The documents containing the information concerning the WJ Communications, Inc. 2001 Employee Stock Incentive Plan and the WJ Communications, Inc. 2001 Employee Stock Purchase Plan (collectively, the "Plans") required by Item 1 of Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"), and the statement of availability of the registrant information, and other information required by Part I of Form S-8 will be sent or given to participants as specified in Securities Act Rule 428. In accordance with Rule 428 and the requirements of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission either as part of this registration statement on Form S-8 or as prospectuses or prospectus supplements pursuant to Rule 424. The Company will maintain a file of such documents in accordance with the provisions of Rule 428. Upon written or oral request to Mr. Rainer N. Growitz, Vice President-Finance and Secretary, WJ Communications, Inc., 401 River Oaks Parkway, San Jose, California 95134 (telephone number (408) 577-6200), the Company shall furnish, without charge, to employees, the Commission or its staff a copy or copies of all of the documents included in such file. ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. See Item 1. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents are hereby incorporated by reference in this Prospectus, all of which were previously filed with the Commission: 1. The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000. 2. The Company's Definitive Proxy Statement relating to the Annual Meeting of Shareholders held on May 23, 2001. 3. The Company's Quarterly Report on Form 10-Q for the quarter ended April 1, 2001. 4. The Company's current report on Form 8-K dated February 17, 2001. 5. The description of securities to be registered contained in the Registration Statement filed with the Commission on the Company's Form 8-A under the Exchange Act dated August 4, 2000. All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which registers all such securities then remaining unsold, shall be deemed to be incorporated in this Registration Statement by reference and to be a part hereof from the date of filing of such documents. Any statement contained in this Registration Statement, in a supplement to this Registration Statement or in documents incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any document that is subsequently incorporated by reference herein modifies such statement. Any statement so modified or superseded shall not be deemed, except as to be modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. 1 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Certificate of Incorporation of the Company, as permitted in Section 102 of the General Corporation Law of the State of Delaware (the "GCL"), eliminates the personal liability of a director to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for (i) any breach of the director's duty of loyalty to the Company or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) paying a dividend or approving a stock repurchase in violation of Delaware law, or (iv) any transaction from which the director derived any improper personal benefit. Under the Certificate of Incorporation of the Company, each director and officer of the Company is entitled to indemnification, as a matter of contractual right, to the fullest extent permitted by the GCL as the same exists or may hereafter be amended, against all expenses, liability and loss incurred in connection with any action, suit or proceeding in which he or she may be involved by reason of the fact that he or she is or was a director or officer of the Company. Section 145 of the GCL empowers a corporation to indemnify any director or officer, or former director or officer against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding (other than a derivative action) by reason of the fact that he or she is or was a director or officer or is or was serving at the request of the corporation as an agent of another entity, if he or she acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action, had no reasonable cause to believe his conduct was unlawful. In regard to a derivative action, indemnification may not be made in respect of any matter as to which an officer or director is adjudged to be liable unless the Delaware Court of Chancery, or the court in which such action was brought, shall determine such person is fairly and reasonably entitled to indemnity. The Company maintains directors and officers liability insurance for the benefit of its directors and certain of its officers. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
EXHIBIT NUMBER EXHIBIT DESCRIPTION ------- ------------------- 4.1 WJ Communications, Inc. 2001 Employee Stock Incentive Plan. 4.2 WJ Communications, Inc. 2001 Employee Stock Purchase Plan. 5.1 Opinion of Shumaker, Loop & Kendrick, LLP, as to the legality of the securities being registered. 23.1 Consent of Shumaker, Loop & Kendrick, LLP to the use of their opinion as an Exhibit to this Registration Statement is included in their opinion filed herewith as Exhibit 5.1. 23.2 Consent of Arthur Andersen LLP., Independent Public Accountants. 23.3 Consent of Deloitte & Touche, LLP, Independent Auditors. 24.1 Power of Attorney (included with the signature page to this Registration Statement).
------------------ * Document has been filed with the Commission and is incorporated by reference. ITEM 9. UNDERTAKINGS. (a) The Company hereby undertakes: 2 4 (1) To file, during any period in which offers of sales are being made, a post-effective amendment to this registration statement that includes any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. (b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be in the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or controlling persons of the Company, pursuant to the foregoing provisions, or otherwise, the Company has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act, and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the act and will be governed by the final adjudication of such issue. 3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California this 27th day of July, 2001. WJ COMMUNICATIONS, INC. By: /s/ William T. Freeman ---------------------------------------------------- William T. Freeman, Executive Vice President and Chief Financial Officer POWER OF ATTORNEY Each of the undersigned officers and directors of WJ Communications, Inc., hereby constitutes and appoints William T. Freeman, Executive Vice President and Chief Financial Officer of the Company, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in any and all capacities, to sign his name to any and all amendments to this Registration Statement on Form S-8, including post-effective amendments and other related documents, and to cause the same to be filed with the Securities and Exchange Commission, granting unto said attorneys, full power and authority to do and perform any act and thing necessary and proper to be done in the premises, as fully to all intents and purposes as the undersigned could do if personally present, and the undersigned for himself hereby ratifies and confirms all that said attorney shall lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this S-8 Registration Statement has been signed by the following persons (or by their duly authorized attorney-in-fact) in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Malcolm J. Caraballo President and Chief Executive Officer July 27, 2001 ------------------------ Malcolm J. Caraballo /s/ William T. Freeman Executive Vice President and July 27, 2001 ---------------------- Chief Financial Officer William T. Freeman /s/ David R. Pulvino Controller July 27, 2001 -------------------- David R. Pulvino /s/ W. Dexter Paine, III Chairman of the Board July 27, 2001 ------------------------ W. Dexter Paine, III /s/ Saul A. Fox Director July 27, 2001 --------------- Saul A. Fox /s/ Jason B. Hurwitz Director July 27, 2001 -------------------- Jason B. Hurwitz /s/ Wray T. Thorn Director July 27, 2001 ----------------- Wray T. Thorn /s/ James R. Kroner Director July 27, 2001 ------------------- James R. Kroner /s/ J. Thomas Bentley Director July 27, 2001 --------------------- J. Thomas Bentley /s/ Charles E. Robinson Director July 27, 2001 ----------------------- Charles E. Robinson /s/ Christopher B. Paisley Director July 27, 2001 -------------------------- Christopher B. Paisley
4 6 EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT DESCRIPTION ------- ------------------- 4.1 WJ Communications, Inc. 2001 Employee Stock Incentive Plan. 4.2 WJ Communications, Inc. 2001 Employee Stock Purchase Plan. 5.1 Opinion of Shumaker, Loop & Kendrick, LLP, as to the legality of the securities being registered. 23.1 Consent of Shumaker, Loop & Kendrick, LLP to the use of their opinion as an Exhibit to this Registration Statement is included in their opinion filed herewith as Exhibit 5.1. 23.2 Consent of Arthur Andersen LLP, Independent Public Accountants. 23.3 Consent of Deloitte & Touche LLP, Independent Auditors. 24.1 Powers of Attorney (included with the signature page to this Registration Statement).
5 EX-4.1 3 g70728ex4-1.txt EMPLOYEE STOCK INCENTIVE PLAN 1 EXHIBIT 4.1 WJ COMMUNICATIONS, INC. 2001 EMPLOYEE STOCK INCENTIVE PLAN SECTION 1. PURPOSE; DEFINITIONS The purpose of the Plan is to give WJ Communications, Inc. (the "COMPANY") and its Affiliates (as defined below) a competitive advantage in attracting, retaining and motivating employees and to provide the Company and its subsidiaries or Affiliates with a stock plan providing incentives linked to the financial results of the Company's businesses and increases in shareholder value. For purposes of the Plan, the following terms are defined as set forth below: "AFFILIATE" of a Person means a Person directly or indirectly controlled by, controlling or under common control with such Person. "AWARD" means a Stock Appreciation Right, Stock Option or Restricted Stock. "AWARD AGREEMENT" means a Restricted Stock Agreement or Option Agreement. An Award Agreement may consist of provisions of an employment agreement. "BOARD" means the Board of Directors of the Company. "CAUSE" shall have the meaning given in any written employment or services agreement between the Company and the Participant, if any, or, in the absence of such an agreement, shall mean any of the following acts or circumstances: (i) willful destruction by the Participant of Company property having a material value to the Company; (ii) fraud, embezzlement, theft, or comparable dishonest activity committed by the Participant against the Company; (iii) the Participant's conviction of or entering a plea of guilty or nolo contendere to any crime constituting a felony or any misdemeanor involving fraud, dishonesty or moral turpitude; (iv) the Participant's breach, neglect, refusal or failure to discharge, in each case in any material respect, his or her duties (other than due to Disability) commensurate with his or her title and function or failure to comply with the lawful directions of the Board; or (v) a willful and knowing material misrepresentation by the Participant to the Board. "CODE" means the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto. "COMMITTEE" means such committee of the Board as the Board may designate, which shall be composed of not less than two Non-Employee Directors, each of whom shall be appointed by and serve at the pleasure of the Board. "COMMON STOCK" means the Common Stock, $.01 par value per share, of the Company. "COMPANY" means WJ Communications, Inc., a Delaware corporation. -1- 2 "DISABILITY" means total and permanent disability as defined in Section 22(e)(3) of the Code. "EFFECTIVE DATE" has the meaning set forth in Section 13 hereof. "EMPLOYMENT" means, unless otherwise defined in an applicable Restricted Stock Agreement, Option Agreement or employment agreement, employment with the Company or any of its Affiliates. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from time to time, and any successor thereto. "FAIR MARKET VALUE" of the Common Stock means, as of any given date, the mean between the highest and lowest reported sales prices of the Common Stock on the Nasdaq National Market. If such sales prices are not so available, the Fair Market Value of the Common Stock shall be determined by the Committee in good faith in light of all circumstances (including, without limitation, historical and projected earnings and revenues of the Company and the Company's future prospects). "INCENTIVE STOCK OPTION" means any Stock Option designated as, and qualified as, an "incentive stock option" within the meaning of Section 422 of the Code. "NASDAQ" means the Nasdaq Stock Market, Inc. "NON-EMPLOYEE DIRECTOR" means a member of the Board who qualifies as a Non-Employee Director as defined in Rule 16b-3(b)(3), as promulgated by the SEC under the Exchange Act, or any successor definition adopted by the SEC. "NONQUALIFIED STOCK OPTION" means any Stock Option that is not an Incentive Stock Option. "OPTION AGREEMENT" means an agreement setting forth the terms and conditions of an Award of Stock Options and, if applicable, Stock Appreciation Rights. "PARENT" means a "parent corporation" with respect to the Company, whether now or later existing, as defined in Section 424 of the Code. "PARTICIPANT" has the meaning set forth in Section 4. "PERSON" means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, government (or any department or agency thereof) or other entity. "PLAN" means the WJ Communications, Inc. 2001 Employee Stock Incentive Plan, as set forth herein and as hereinafter amended from time to time. "PLAN SHARES" has the meaning set forth in Section 12(b). "RESTRICTED STOCK" means an Award granted under Section 7. -2- 3 "RESTRICTED STOCK AGREEMENT" means an agreement setting forth the terms and conditions of an Award of Restricted Stock. "RULE 13D-3" means Rule 13d-3, as promulgated by the SEC under the Exchange Act, as amended from time to time. "SEC" means the Securities and Exchange Commission or any successor agency. "SECURITIES ACT" means the Securities Act of 1933, as amended from time to time, and any successor thereto. "STOCK APPRECIATION RIGHT" means a right granted under Section 6. "STOCK OPTION" means an option granted under Section 5. "SUBSIDIARY" means a "subsidiary corporation" with respect to the Company, whether now or later existing, as defined in Section 424(f) of the Code. In addition, certain other terms used herein have definitions otherwise ascribed to them herein. SECTION 2. ADMINISTRATION The Plan shall be administered by the Committee, or, if no Committee has been designated or appointed, by the Board (in which case all references herein to the Committee shall include the Board). Among other things, the Committee shall have the authority, subject to the terms of the Plan, to: (a) select the Participants to whom Awards may from time to time be granted; (b) determine whether and to what extent Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation Rights and Restricted Stock or any combination thereof are to be granted hereunder; (c) determine the number of shares of Common Stock to be covered by each Award granted hereunder; (d) determine the terms and conditions of any Award granted hereunder (including, but not limited to, the option price, any vesting conditions, restrictions or limitations (which may be related to the performance of the Participant, the Company or any of its Affiliates)) and any acceleration of vesting or waiver or forfeiture regarding any Award and the shares of Common Stock relating thereto, based on such factors as the Committee shall determine; (e) modify, amend or adjust the terms and conditions of any Award, at any time or from time to time; -3- 4 (f) determine to what extent and under what circumstances Common Stock and other amounts payable with respect to an Award shall be deferred; (g) determine under what circumstances an Award may be settled in cash or Common Stock under Sections 5(g) and 6(b)(ii); (h) adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable; (i) interpret the terms and provisions of the Plan and any Award issued under the Plan (and any agreement relating thereto); and (j) otherwise supervise the administration of the Plan. The Committee may act only by a majority of its members then in office, except that the members thereof may authorize any one or more of their number or any officer of the Company to execute and deliver documents on behalf of the Committee. Any dispute or disagreement which may arise under, or as a result of, or in any way relate to, the interpretation, construction or application of the Plan or an Award (or related Award Agreement) granted hereunder shall be determined by the Committee. Any determination made by the Committee pursuant to the provisions of the Plan with respect to the Plan, any Award or Award Agreement shall be made in the sole discretion of the Committee and, with respect to an Award, at the time of the grant of the Award or, unless in contravention of any express term of the Plan, at any time thereafter. All decisions made by the Committee shall be final and binding on all persons, including the Company and the Participants. SECTION 3. COMMON STOCK SUBJECT TO PLAN The total number of shares of Common Stock reserved and available for grant under the Plan shall be 2,000,000. Shares subject to an Award under the Plan may be authorized and unissued shares or may be treasury shares. If any shares of Restricted Stock are forfeited or if any Stock Option (and related Stock Appreciation Right, if any) terminates without being exercised, or if any Stock Appreciation Right is exercised or settled for cash, the shares subject to such Awards shall again be available for distribution in connection with Awards under the Plan. In the event of any merger, reorganization, consolidation, recapitalization, spinoff, stock dividend, stock split, reverse stock split, extraordinary distribution with respect to the Common Stock or other change in corporate structure affecting the Common Stock, the Committee or the Board may make such substitution or adjustment in the aggregate number and kind of shares or other property reserved for issuance under the Plan, in the number, kind and exercise price of shares or other property subject to outstanding Stock Options and Stock Appreciation Rights, in the number and kind of shares or other property subject to Restricted Stock Awards, and/or such other equitable substitution or adjustments as it may determine to be fair and appropriate in its sole discretion; provided, however, that the number of shares of common stock subject to an Award shall always be a whole number. -4- 5 Any such adjusted exercise price shall also be used to determine the amount payable by the Company upon the exercise of any Stock Appreciation Right associated with any Stock Option. SECTION 4. PARTICIPANTS Each employee of the Company or any of its Affiliates who is not a director of the Company nor an officer of the Company or any of its Affiliates at the time that a particular Award is granted shall be a "Participant" eligible to be granted such Award under the Plan. SECTION 5. STOCK OPTIONS The Committee shall have the authority to grant Incentive Stock Options, Nonqualified Stock Options or both types of Stock Options (in each case with or without Stock Appreciation Rights) to any Participant. Incentive Stock Options may be granted only to employees of the Company and its Subsidiaries (within the meaning of Section 424(f) of the Code). To the extent that any Stock Option is not designated as an Incentive Stock Option or even if so designated does not qualify as an Incentive Stock Option, it shall constitute a Nonqualified Stock Option. Stock Options shall be evidenced by Option Agreements, which shall include such terms and provisions as the Committee may determine from time to time. An Option Agreement shall expressly indicate whether it is intended to be an agreement for an Incentive Stock Option or a Nonqualified Stock Option. The grant of a Stock Option shall occur on the date the Committee by resolution selects an individual to be a Participant in any grant of a Stock Option, determines the number of shares of Common Stock to be subject to such Stock Option to be granted to such individual and specifies the terms and provisions of the Stock Option, or on such other date as the Committee may determine. The Company shall notify a Participant of any grant of a Stock Option, and a written Option Agreement shall be duly executed and delivered by the Company to the Participant. Subject to Section 12(a), such agreement shall become effective upon execution by the Company and the Participant. Anything in the Plan to the contrary notwithstanding, no term of the Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify the Plan under Section 422 of the Code or, without the consent of the Participant affected, to disqualify any Incentive Stock Option under such Section 422. Stock Options shall be subject to the following terms and conditions and shall contain such additional terms and conditions as the Committee shall deem desirable: (a) Exercise Price for Incentive Stock Options. The exercise price for shares of Common Stock to be issued pursuant to the exercise of an Incentive Stock Option will be determined by the Committee provided that the per share exercise price will be no less than 100% of the Fair Market Value per share on the date of grant; provided, further, that in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of capital stock of the Company or any Subsidiary, the per -5- 6 Share exercise price will be no less than 110% of the Fair Market Value per share on the date of grant. (b) Exercise Price for Nonqualified Stock Options. In the case of a Nonqualified Stock Option, the exercise price will be determined by the Committee provided that the per Share exercise price will be no less than 85% of the Fair Market Value per Share on the date of grant; provided, further, that in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of capital stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no less than 110% of the Fair Market Value per Share on the date of grant. (c) Option Term. The term of each Stock Option shall be fixed by the Committee and stated in the Option Agreement; provided, however, that in no event may the term be more than ten (10) years from the date of grant. In addition, in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of capital stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option will be five (5) years from the date of grant or any shorter term specified in the Option Agreement. (d) Exercisability. Except as otherwise provided herein, Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee. If the Committee provides that any Stock Option is exercisable only in installments, the Committee may at any time waive such installment exercise provisions, in whole or in part, based on such factors as the Committee may determine. In addition, the Committee may at any time accelerate the exercisability of any Stock Option. (e) Method of Exercise. Subject to the provisions of this Section 5, vested Stock Options may be exercised, in whole or in part, at any time during the option term by giving written notice of exercise to the Company specifying the number of shares of Common Stock subject to the Stock Option to be purchased. Such notice shall be accompanied by payment in full of the purchase price by certified or bank check or such other instrument as the Company may accept. If approved by the Committee, payment, in full or in part, may also be made in the form of unrestricted Common Stock already owned by the Participant (for at least six (6) months) of the same class as the Common Stock subject to the Stock Option (based on the Fair Market Value of the Common Stock on the date the Stock Option is exercised); provided, however, that, in the case of an Incentive Stock Option the right to make a payment in the form of already owned shares of Common Stock of the same class as the Common Stock subject to the Stock Option may be authorized only at the time the Stock Option is granted. In the discretion of the Committee, payment for any shares subject to a Stock Option may also be made by delivering a properly executed exercise notice to the Company, together with a copy of irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds to pay the purchase price, and, if requested by -6- 7 the Company, the amount of any federal, state, local or foreign withholding taxes. To facilitate the foregoing, the Company may enter into agreements for coordinated procedures with one or more brokerage firms. In addition, in the discretion of the Committee, payment for any shares subject to a Stock Option may also be made by instructing the Committee to withhold a number of such shares having a Fair Market Value on the date of exercise equal to the aggregate exercise price of such Stock Option, or in accordance with such other payment methods as may be permitted by the Committee in its sole discretion. No shares of Common Stock shall be issued until full payment therefor has been made. Except as otherwise provided in the applicable Option Agreement, subject to a Participant's compliance with Section 12(a) hereof, a Participant shall have all of the rights of a shareholder of the Company holding the class or series of Common Stock that is subject to such Stock Option (including, if applicable, the right to vote the shares and the right to receive dividends and distributions), when the Participant has given written notice of exercise, has paid in full for such shares and, if requested, has given the representations referred to in Section 12(c). (f) Nontransferability of Stock Options. A Stock 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, subject to the terms of this Plan, during the lifetime of the Participant, only by the Participant or any Person to whom such Stock Option is transferred pursuant to this Section 5(e), including such Participant's guardian, lead representative or other transferee. A Participant may file a written designation of a beneficiary who is to receive any Stock Options that remain unexercised in the event of the Participant's death. If a Participant is married and the designated beneficiary is not the spouse, spousal consent will be required for the designation to be effective. The Participant may change such designation of beneficiary at any time by written notice to the Committee, subject to the above spousal consent requirement. If a Participant dies and there is no beneficiary, validly designated and living at the time of the Participant's death, the Company will deliver such Participant's Stock Options to the executor or committee of his or her estate, or if no such executor or committee has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such Stock Options 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. If a Participant designates his or her spouse as beneficiary, that designation will be deemed automatically revoked if the Participant's marriage is later dissolved. Similarly, any designation of a beneficiary will be deemed automatically revoked upon the death of the beneficiary if the beneficiary predeceases the Participant. Without limiting the generality of the preceding sentence, the interest in Stock Options of a spouse of a Participant who has predeceased the Participant or whose marriage has been dissolved will automatically pass to the Participant, and will not be transferable by such spouse in any manner, including but not limited to such spouse's will, nor will any such interest pass under the laws of intestate succession. -7- 8 The term "PARTICIPANT" includes the estate of the Participant or the legal representative of the Participant named in the Option Agreement and any person to whom an Option is otherwise transferred in accordance with this Section 5(e), by will or the laws of descent and distribution; provided, however, that references herein to Employment of a Participant or termination of Employment of a Participant shall continue to refer to the Employment or termination of Employment of the applicable grantee of an Award hereunder. (g) Termination of Employment. If a Participant's Employment is terminated for Cause, then all Stock Options held by such Participant shall immediately be terminated and cancelled. Except as otherwise provided by the Committee or in the applicable Option Agreement, upon the Participant's death or when the Participant's Employment is terminated for any reason other than for Cause, the Participant: a. shall forfeit all Stock Options that have not previously vested; b. shall have ninety (90) days to exercise the Participant's vested Stock Options that are vested on the date of the Participant's termination of Employment if such termination is for any reason other than the Participant's Disability or death; and c. shall have one (1) year to exercise the Participant's vested Stock Options that are vested on the date of Disability or death if the Participant's termination of Employment is due to the Participant's Disability or death. Any vested Stock Options not exercised within the permissible period of time shall be forfeited by the Participant. Notwithstanding any of the foregoing, the Participant shall not be permitted to exercise any Stock Option at a time beyond the initial option term. (h) Cashing Out of Stock Option. On receipt of written notice of exercise, the Committee may elect to cash out all or any portion of the shares of Common Stock for which a Stock Option is being exercised by paying the Participant an amount, in cash or Common Stock, equal to the excess of the Fair Market Value of one share of Common Stock over the Exercise Price per share times the number of shares of Common Stock having such Exercise Price for which the Option is being exercised on the effective date of such cash-out. SECTION 6. STOCK APPRECIATION RIGHTS (a) Grant and Exercise. Stock Appreciation Rights may be granted in conjunction with all or part of any Stock Option granted under the Plan. In the case of a Nonqualified Stock Option, such rights may be granted either at or after the time of grant of such Stock Option. In the case of an Incentive Stock Option, such rights may be granted only at the time of grant of such Stock Option. A Stock Appreciation Right shall terminate and no longer be exercisable upon the termination or exercise of the related Stock Option. In either case, the terms and conditions of a Stock Appreciation Right shall be set forth in the Option Agreement for the related Stock Option or an amendment thereto. A Stock Appreciation Right may be exercised by a Participant in accordance with Section 6(b) by surrendering the applicable portion of the related Stock Option in -8- 9 accordance with procedures established by the Committee. Upon such exercise and surrender, the Participant shall be entitled to receive an amount determined in the manner prescribed in Section 6(b). Stock Options which have been so surrendered shall no longer be exercisable to the extent the related Stock Appreciation Rights have been exercised. (b) Terms and Conditions. Stock Appreciation Rights shall be subject to such terms and conditions as shall be determined by the Committee, including the following: (i) Stock Appreciation Rights shall be exercisable only at such time or times and to the extent that the Stock Options to which they relate are exercisable in accordance with the provisions of Section 5 and this Section 6; (ii) upon the exercise of a Stock Appreciation Right, a Participant shall be entitled to receive an amount equal to the product of (a) the excess of the Fair Market Value of one share of Common Stock over the Exercise Price per share specified in the related Stock Option times (b) the number of shares in respect of which the Stock Appreciation Right shall have been exercised, in cash, shares of Common Stock or both, with the Committee having the right to determine the form of payment; (iii) Stock Appreciation Rights shall be transferable only with the related Stock Option in accordance with Section 5(e); and (iv) upon the exercise of a Stock Appreciation Right (other than an exercise for cash), the Stock Option or part thereof to which such Stock Appreciation Right is related shall be deemed to have been exercised for the purpose of the limitation set forth in Section 3 on the number of shares of Common Stock to be issued under the Plan, but only to the extent of the number of shares covered by the Stock Appreciation Right at the time of exercise. SECTION 7. RESTRICTED STOCK The Committee shall determine the Participants to whom and the time or times at which grants of Restricted Stock will be awarded, the number of shares to be awarded to any Participant, the conditions for vesting, the time or times within which such Awards may be subject to forfeiture and restrictions on transfer and any other terms and conditions of the Awards (including provisions (i) relating to placing legends on certificates representing shares of Restricted Stock, (ii) permitting the Company to require that shares of Restricted Stock be held in custody by the Company with a stock power from the owner thereof until restrictions lapse and (iii) relating to any rights to purchase the Restricted Stock on the part of the Company and its Affiliates). The terms and conditions of Restricted Stock Awards shall be set forth in a Restricted Stock Agreement, which shall include such terms and provisions as the Committee may determine from time to time. Except as provided in this Section 7, the Restricted Stock Agreement and any other relevant agreements, the Participant shall have, with respect to the shares of Restricted Stock, all of the rights of a shareholder of the Company holding the class or series of Common Stock that is the subject of the Restricted Stock Award, including, if applicable, the right to vote the shares and, subject to the following sentence, the right to receive any cash dividends or distributions (but, subject to the third paragraph of Section 3, not the right to receive non-cash dividends -9- 10 or distributions). If so determined by the Committee in the applicable Restricted Stock Agreement, cash dividends and distributions on the class or series of Common Stock that is the subject of the Restricted Stock Award shall be automatically deferred and reinvested in additional Restricted Stock, held subject to the vesting of the underlying Restricted Stock, or held subject to meeting conditions applicable only to dividends and distributions. SECTION 8. TAX OFFSET BONUSES At the time an Award is made hereunder or at any time thereafter, the Committee may grant to the Participant receiving such Award the right to receive a cash payment in an amount specified by the Committee, to be paid at such time or times (if ever) as the Award results in compensation income to the Participant, for the purpose of assisting the Participant to pay the resulting taxes, all as determined by the Committee, and on such other terms and conditions as the Committee shall determine. SECTION 9. CERTAIN EVENTS Upon the happening of a merger, reorganization or sale of substantially all of the assets of the Company, the Committee, may, in its sole discretion, do one or more of the following: (i) shorten the period during which Stock Options are exercisable (provided they remain exercisable for at least 30 days after the date notice of such shortening is given to the Participants); (ii) accelerate any vesting schedule to which an Stock Option or Restricted Stock Award is subject; (iii) arrange to have the surviving or successor entity or any parent entity thereof assume the Restricted Stock Awards and the Stock Options or grant replacement options with appropriate adjustments in the exercise prices and adjustments in the number and kind of securities issuable upon exercise or adjustments so that the Stock Options or their replacements represent the right to purchase the shares of stock, securities or other property (including cash) as may be issuable or payable as a result of such transaction with respect to or in exchange for the number of shares of Common Stock purchasable and receivable upon exercise of the Stock Options had such exercise occurred in full prior to such transaction; or (iv) cancel Stock Options or unvested Stock Awards upon payment to the Participants in cash, with respect to each Stock Option or Restricted Stock Award to the extent then exercisable or vested (including, if applicable, any Stock Options or Restricted Stock Awards as to which the vesting schedule has been accelerated as contemplated in clause (ii) above), of an amount that is the equivalent of the excess of the Fair Market Value of the Common Stock (at the effective time of the merger, reorganization, sale or other event) over (in the case of Stock Options) the exercise price of the Stock Option. The Committee may also provide for one or more of the foregoing alternatives in any particular Option Agreement or agreement governing a Restricted Stock Award. SECTION 10. TERM, AMENDMENT AND TERMINATION The Plan will terminate ten (10) years after the Effective Date of the Plan. Awards outstanding as of such date shall not be affected or impaired by the termination of the Plan. The Board may amend, alter, or discontinue the Plan, prospectively or retroactively, but no amendment, alteration or discontinuation shall be made which would impair the -10- 11 rights of any Participant under an Award theretofore granted without the Participant's consent. The Committee may amend the terms of any Award theretofore granted, prospectively or retroactively, but no such amendment shall be made which would impair the rights of any Participant thereunder without the Participant's consent. SECTION 11. UNFUNDED STATUS OF PLAN It is presently intended that the Plan constitute an "unfunded" plan for incentive and deferred compensation. The Committee may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan to deliver Common Stock or make payments; provided, however, that, unless the Committee otherwise determines, the existence of such trusts or other arrangements is consistent with the "unfunded" status of the Plan. SECTION 12. GENERAL PROVISIONS (a) Awards and Certificates. Shares of Restricted Stock and shares of Common Stock issuable upon the exercise of a Stock Option or Stock Appreciation Right (together, "PLAN SHARES") shall be evidenced in such manner as the Committee may deem appropriate, including book-entry registration or issuance of one or more stock certificates. Any certificate issued in respect of Plan Shares shall be registered in the name of such Participant and shall bear appropriate legends referring to the terms, conditions, and restrictions applicable to such Award, substantially in the following form: "The transferability of this certificate and the shares of stock represented hereby are subject to the terms, conditions and restrictions (including forfeiture) of the WJ Communications, Inc. 2001 Employee Stock Incentive Plan and a Restricted Stock Agreement and/or a Stock Option Agreement, as the case may be, between the issuer and the registered holder hereof. Copies of such Plan and Agreement(s) are on file at the offices of WJ Communications, Inc., 401 River Oaks Parkway, San Jose, CA 95134." "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or under the securities laws of any state, and may not be sold or otherwise disposed of except pursuant to an effective registration statement under said Act and applicable state securities laws or an applicable exemption to the registration requirements of such Act and laws." Such Plan Shares may bear other legends to the extent the Committee or the Board determines it to be necessary or appropriate, including any required pursuant to any applicable Restricted Stock Agreement or Option Agreement. If and when all restrictions expire without a prior forfeiture of the Plan Shares theretofore subject to such restrictions, upon surrender of legended certificates representing such shares, new certificates for such shares shall be delivered to the Participant without the first legend listed above. -11- 12 The Committee may require that any certificates evidencing Plan Shares be held in custody by the Company until the restrictions thereon shall have lapsed and that the Participant deliver a stock power, endorsed in blank, relating to the Plan Shares. (b) Representations and Warranties. The Committee may require each person purchasing or receiving Plan Shares to (i) represent to and agree with the Company in writing that such person is acquiring the shares without a view to the distribution thereof and (ii) make any other representations and warranties that the Committee deems appropriate. (c) Additional Compensation. Nothing contained in the Plan shall prevent the Company or any of its Affiliates from adopting other or additional compensation arrangements for its employees. (d) No Right of Employment. Adoption of the Plan or grant of any Award shall not confer upon any employee any right to continued Employment, nor shall it interfere in any way with the right of the Company or any of its Affiliates thereof to terminate the Employment of any employee at any time. (e) Withholding Taxes. No later than the date as of which an amount first becomes includible in the gross income of a Participant for federal income tax purposes with respect to any Award under the Plan, such Participant shall pay to the Company or, if appropriate, any of its Affiliates, or make arrangements satisfactory to the Committee regarding the payment of, any federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. If approved by the Committee, withholding obligations may be settled with Common Stock, including Common Stock that is part of the Award that gives rise to the withholding requirement. The obligations of the Company under the Plan shall be conditional on such payment or arrangements, and the Company and its Affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Participant. The Committee may establish such procedures as it deems appropriate, including making irrevocable elections, for the settlement of withholding obligations with Common Stock. (f) Beneficiaries. The Committee shall establish such procedures as it deems appropriate for a Participant to designate a beneficiary to whom any amounts payable in the event of the Participant's death are to be paid or by whom any rights of the Participant, after the Participant's death, may be exercised. (g) Governing Law. The Plan and all Awards made and actions taken thereunder shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to the principles of conflicts of law thereof. (h) Compliance with Laws. If any law or any regulation of any commission or agency having jurisdiction shall require the Company or a Participant seeking to exercise Stock Options or Stock Appreciation Rights to take any action with respect to the Plan Shares to be issued upon the exercise of Stock Options or Stock Appreciation Rights then the date upon which the Company shall issue or cause to be issued the certificate or certificates for the Plan Shares shall be postponed until full compliance has -12- 13 been made with all such requirements of law or regulation; provided, that the Company shall use its reasonable efforts to take all necessary action to comply with such requirements of law or regulation. Moreover, in the event that the Company shall determine that, in compliance with the Securities Act or other applicable statutes or regulations, it is necessary to register any of the Plan Shares with respect to which an exercise of a Stock Option or Stock Appreciation Right has been made, or to qualify any such Plan Shares for exemption from any of the requirements of the Securities Act or any other applicable statute or regulation, no Stock Options or Stock Appreciation Rights may be exercised and no Plan Shares shall be issued to the exercising Participant until the required action has been completed; provided, that the Company shall use its reasonable efforts to take all necessary action to comply with such requirements of law or regulation. Notwithstanding anything to the contrary contained herein, neither the Board nor the members of the Committee owes a fiduciary duty to any Participant in his or her capacity as such. SECTION 13. EFFECTIVE DATE OF PLAN The Plan shall be effective as of the date it is approved by the Board (such date the "EFFECTIVE DATE"). -13- EX-4.2 4 g70728ex4-2.txt EMPLOYEE STOCK PURCHASE PLAN 1 EXHIBIT 4.2 WJ COMMUNICATIONS, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN I. PURPOSE OF THE PLAN This Employee Stock Purchase Plan is intended to promote the interests of WJ Communications, Inc. and its stockholders by providing Eligible Employees with the opportunity to acquire a proprietary interest in the Corporation through participation in a payroll-deduction based employee stock purchase plan designed to qualify under Section 423 of the Code. Capitalized terms herein shall have the meanings assigned to such terms in the attached Appendix. II. ADMINISTRATION OF THE PLAN A. The Plan Administrator shall have full authority to interpret and construe any provision of the Plan and any form of agreement or other document employed by the Corporation in the administration of the Plan in a manner consistent with the requirements of Code Section 423. The Plan Administrator shall determine all of the relevant terms and conditions of purchase rights granted under the Plan; provided, however, that all Participants granted purchase rights shall have the same rights and privileges within the meaning of Code Section 423(b)(5). Decisions of the Plan Administrator shall be final and binding on all parties having an interest in the Plan. B. The Plan Administrator may, consistent with the Plan and Code Section 423, establish, change or terminate such rules, guidelines, policies, procedures, limitations or adjustments as deemed advisable by the Plan Administrator, in its discretion, for the proper administration of the Plan. III. STOCK SUBJECT TO PLAN A. The stock purchasable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares of Common Stock purchased on the open market. The maximum number of shares of Common Stock which may be issued over the term of the Plan shall not exceed One Million Five Hundred Thousand (1,500,000) shares. If any outstanding purchase right for any reason expires or is terminated or cancelled, the Common Stock allocable to the unexercised portion of that purchase right shall again be available for issuance under the Plan. B. Should any change be made to the Common Stock by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Corporation's receipt of consideration, then appropriate adjustments shall be made to (i) the maximum number and class of securities issuable under the Plan, (ii) the maximum number and class of securities purchasable per Participant on any one Purchase Date, (iii) the maximum number and class of securities purchasable in the aggregate on any one Purchase Date and (iv) the 2 number and class of securities and the price per share in effect under each outstanding purchase right in order to prevent the dilution or enlargement of benefits thereunder. Notwithstanding the foregoing, any fractional shares resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number, and in no event may the purchase price be decreased to an amount less than par value; if any, of the Common Stock subject to the purchase right. C. If the outstanding shares of Common Stock are increased, decreased, changed into or exchanged for a different number or kind of shares or securities of the Corporation or a successor entity, or for other property (including without limitation, cash), through reorganization, merger, recapitalization, reclassification, stock combination, stock dividend, stock split, reverse stock split, spin off or other similar transaction, an appropriate and proportionate adjustment will be made in the maximum number and kind of shares as to which purchase rights may be granted under this Plan. A corresponding adjustment changing the number or kind of shares allocated to purchase rights that have been granted prior to any such change will likewise be made. Any such adjustment in the outstanding purchase rights will be made without change in the aggregate purchase price applicable to the unexercised portion of the purchase rights but with a corresponding adjustment in the price for each share or other unit of any security covered by the purchase right. Where an adjustment under this Section is made, the adjustment will be made in a manner which will not be considered a "modification" under the provisions of subsection 424(h)(3) of the Code. D. The adjustments determined by the Plan Administrator pursuant to this Article shall be final, binding and conclusive. IV. OFFERING PERIODS A. Shares of Common Stock shall be offered for purchase under the Plan through a series of successive offering periods until such time as (i) the maximum number of shares of Common Stock available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner terminated. B. Each offering period shall be of approximately six (6) months duration or such other duration as the Plan Administrator may determine. The initial offering period shall commence at the Effective Time and terminate on the last payroll on or before October 31, 2001. The next offering period shall commence on the first payroll day on or after November 1, 2001 and terminate on the last payroll day on or prior to April 30, 2002. Subsequent offering periods shall commence as designated by the Plan Administrator; provided, however, that no offering period may have a duration exceeding twenty-seven (27) months. V. ELIGIBILITY AND PARTICIPATION A. Each individual who is an Eligible Employee on the first day of any offering period under the Plan may enter that offering period on such date, provided he or she (1) remains an Eligible Employee, (2) completes the forms prescribed by the Plan Administrator, and (3) files such forms with the Plan Administrator (or its designate) on or before his or her scheduled Entry Date. -2- 3 B. A Participant shall automatically participate in the next offering period commencing immediately after the Purchase Date of each offering period in which the Participant participates provided that the Participant remains an Eligible Employee on the first day of the of the new offering period and has not either (a) withdrawn from the Plan pursuant to Article VII.7.(i), or (b) terminated employment with a Participating Corporation. A Participant who may automatically participate in a subsequent offering period, as provided in this section, is not required to deliver any additional forms to the Plan Administrator for the subsequent offering period in accordance with the procedures set forth in Article V.A. However, a Participant may deliver a new enrollment/change form for a subsequent offering period, in accordance with the procedures set forth in Article VI if the Participant desires to change any elections contained in the Participant's then effective enrollment/change form. C. Each individual who first becomes an Eligible Employee after the first day of an offering period may not enter that offering period, but may enter the next offering period, provided he or she (1) remains an Eligible Employee, (2) completes the forms prescribed by the Plan Administrator, and (3) files such forms with the Plan Administrator (or its designate) on or before his or her scheduled Entry Date. VI. PAYROLL DEDUCTIONS A. The payroll deduction authorized by the Participant for purposes of acquiring shares of Common Stock during an offering period may be any multiple of one percent (1%) of the Total Compensation paid to the Participant during such offering period, up to a maximum of fifteen percent (15%); provided that, the amount of Participant's deferral may not exceed Ten Thousand Six Hundred Twenty-Five Dollars ($10,625.00) per offering period. Except that for the initial offering period, the amount of Participant's deferral may not exceed Seventeen Thousand Five Hundred Dollars ($17,500.00). The deduction rate so authorized shall continue in effect throughout the offering period, except to the extent the Participant makes a new election to change such rate. The number of times a Participant may, during any offering period, elect to reduce or increase his or her rate of payroll deduction shall be one time during any one offering period. B. Payroll deductions shall begin on the first pay day following the Participant's Entry Date into the offering period and shall (unless sooner terminated by the Participant) continue through the pay day ending with or immediately prior to the last day of that offering period. The amounts so collected shall be credited to the Participant's book account under the Plan, but no interest shall be paid on the balance from time to time outstanding in such account. The amounts collected from the Participant shall not be required to be held in any segregated account or trust fund and may be commingled with the general assets of the Corporation and used for general corporate purposes. C. The Participant's acquisition of Common Stock under the Plan on any Purchase Date shall neither limit nor require the Participant's acquisition of Common Stock on any subsequent Purchase Date of a different offering period. D. The Participant's payroll deductions shall cease during military leave or other approved leave of absence. -3- 4 VII. PURCHASE RIGHTS A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a separate purchase right for each offering period in which he or she participates. The purchase right shall be granted on the Participant's Entry Date into the offering period and shall provide the Participant with the right to purchase shares of Common Stock on the Purchase Date of the offering period, upon the terms set forth below. If the Plan Administrator so requests, the Participant shall execute a stock purchase agreement embodying such terms and such other provisions (not inconsistent with the Plan) as the Plan Administrator may deem advisable. Under no circumstances shall purchase rights be granted under the Plan to any Eligible Employee if such individual would, immediately after the grant, own (within the meaning of Code Section 424(d)) or hold outstanding options or other rights to purchase, stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Corporation or any Corporate Affiliate, as determined in accordance with Code Section 423(b). B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be automatically exercised on the Purchase Date of the offering period, and shares of Common Stock shall accordingly be purchased on behalf of each Participant on each such Purchase Date. The purchase shall be effected by applying the Participant's payroll deductions for the offering period ending on such Purchase Date to the purchase of whole shares of Common Stock at the purchase price in effect for the Participant for that Purchase Date. Shares of Common Stock acquired pursuant to the exercise of purchase right may be paid only by means of payroll deductions from the Participant's Total Compensation accumulated during an offering period for which such purchase right was granted. C. PURCHASE PRICE. The purchase price at which each share of Common Stock may be acquired in an offering period upon the exercise of any or all outstanding purchase rights shall be established by the Plan Administrator; provided, however, that the purchase price shall not be less than to eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of Common Stock on the Participant's Entry Date into that offering period or (ii) the Fair Market Value per share of Common Stock on that Purchase Date. Unless otherwise provided by the Plan Administrator prior to the commencement of an offering period, the purchase price per share at which Common Stock will be purchased on the Participant's behalf on the Purchase Date of an offering period shall be equal to eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of Common Stock on the Participant's Entry Date into that offering period or (ii) the Fair Market Value per share of Common Stock on that Purchase Date. D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common Stock purchasable by a Participant on the Purchase Date of an offering period shall be the number of whole shares obtained by dividing the amount collected from the Participant through payroll deductions during the offering period ending with that Purchase Date by the purchase price in effect for the Participant for that Purchase Date; provided that, the Participant may not purchase more than 25,000 shares of Common Stock. -4- 5 E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied to the purchase of shares of Common Stock on any Purchase Date because they are not sufficient to purchase a whole share of Common Stock shall be held for the purchase of Common Stock on the next Purchase Date. F. TERMINATION OF PURCHASE RIGHT. The following provisions shall govern the termination of outstanding purchase rights: (i) A Participant may, at any time prior to the Purchase Date of an offering period, terminate his or her outstanding purchase right by filing the appropriate form with the Plan Administrator (or its designate), and no further payroll deductions shall be collected from the Participant with respect to the terminated purchase right. Any payroll deductions collected during the offering period in which such termination occurs shall, at the Participant's election, be immediately refunded or held for the purchase of shares on the next Purchase Date. If no such election is made at the time such purchase right is terminated, then the payroll deductions collected with respect to the terminated right shall be refunded as soon as possible. (ii) The termination of such purchase right shall be irrevocable, and the Participant may not subsequently rejoin the offering period for which the terminated purchase right was granted. In order to resume participation in any subsequent offering period, such individual must re-enroll in the Plan (by making a timely filing of the prescribed enrollment forms) on or before his or her scheduled Entry Date into that offering period. (iii) Should the Participant cease to remain an Eligible Employee for any reason (including death, disability or change in status) while his or her purchase right remains outstanding, then that purchase right shall immediately terminate, and all of the Participant's payroll deductions for the offering period in which the purchase right so terminates shall be immediately refunded. G. CHANGE IN CONTROL. The Board may, in its sole discretion, provide that in the event of a Change in Control one or more of the following will occur: (1) each outstanding purchase right shall automatically be exercised, immediately prior to the effective date of any Change in Control, by applying the payroll deductions of each Participant for the offering period in which such Change in Control occurs to the purchase of whole shares of Common Stock at a purchase price per share equal to eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of Common Stock on the Participant's Entry Date into the offering period in which such Change in Control occurs or (ii) the Fair Market Value per share of Common Stock immediately prior to the effective date of such Change in Control (the Corporation shall use its best efforts to provide at least ten (10)-days prior written notice of the occurrence of any Change in Control, and Participants shall, following the receipt of such notice, have the right to terminate their outstanding purchase rights prior to the effective date of the Change in Control); (2) provide that all outstanding purchase rights shall terminate effective the date of any Change in Control, or such other date as the Plan Administrator may deem advisable, and all payroll deductions for the offering period in which such Change in Control occurs shall be returned -5- 6 to each Participant as soon as possible; (3) the surviving, continuing, successor, or purchasing corporation or parent corporation, thereof, as the case may be, may assume the Corporation's rights and obligations under the Plan; or (4) such other alternative the Board deems advisable and which is in accordance with the Plan and Code Section 423. H. PRORATION OF PURCHASE RIGHTS. Should the total number of shares of Common Stock to be purchased pursuant to outstanding purchase rights on any particular date exceed the number of shares then available for issuance under the Plan, the Plan Administrator shall make a pro-rata allocation of the available shares on a uniform and nondiscriminatory basis, and the payroll deductions of each Participant, to the extent in excess of the aggregate purchase price payable for the Common Stock pro-rated to such individual, shall be refunded. I. ASSIGNABILITY. The purchase right shall be exercisable only by the Participant during the Participant's lifetime, and shall not be assignable or transferable by the Participant other than by the laws of descent and distribution. J. STOCKHOLDER RIGHTS. A Participant shall have no stockholder rights with respect to the shares subject to his or her outstanding purchase right until the shares are purchased on the Participant's behalf in accordance with the provisions of the Plan and the Participant has become a holder of record of the purchased shares. VIII. ACCRUAL LIMITATIONS A. No Participant shall be entitled to accrue rights to acquire Common Stock pursuant to any purchase right outstanding under this Plan if and to the extent such accrual, when aggregated with (i) rights to purchase Common Stock accrued under any other purchase right granted under this Plan and (ii) similar rights accrued under other employee stock purchase plans (within the meaning of Code Section 423) of the Corporation or any Corporate Affiliate, would otherwise permit such Participant to purchase more than Twenty-Five Thousand Dollars ($25,000) worth of stock of the Corporation or any Corporate Affiliate (determined on the basis of the Fair Market value per share on the date or dates such rights are granted) for each calendar year such rights are at any time outstanding. B. For purposes of applying such accrual limitations to the purchase rights granted under the Plan, the following provisions shall be in effect: (i) The right to acquire Common Stock under each outstanding purchase right shall accrue on the Purchase Date of an offering period on which such right remains outstanding. (ii) No right to acquire Common Stock under any outstanding purchase right shall accrue to the extent the Participant has already accrued in the same calendar year the right to acquire Common Stock under one (1) or more other purchase rights at a rate equal to Twenty-Five Thousand Dollars ($25,000) worth of Common Stock (determined on the basis of the Fair Market Value per share on the date or dates of grant) for each calendar year such rights were at any time outstanding. -6- 7 C. If by reason of such accrual limitations, any purchase right of a Participant does not accrue for a particular Purchase Date, then the payroll deductions which the Participant made during that offering period with respect to such purchase right shall be promptly refunded. D. In the event there is any conflict between the provisions of this Article and one or more provisions of the Plan or any instrument issued thereunder, the provisions of this Article shall be controlling. IX. EFFECTIVE DATE AND TERM OF THE PLAN A. The Plan was adopted by the Board on February 13, 2001 and shall become effective at the Effective Time, provided no purchase rights granted under the Plan shall be exercised, and no shares of Common Stock shall be issued hereunder, until the Corporation shall have complied with all applicable requirements of the 1933 Act (including the registration of the shares of Common Stock issuable under the Plan on a Form S-8 registration statement filed with the Securities and Exchange Commission), all applicable listing requirements of any Stock Exchange or the Nasdaq National Market on which the Common Stock is listed for trading and all other applicable requirements established by law or regulation. In the event such stockholder approval is not obtained, or such compliance is not effected, within twelve (12) months after the date on which the Plan is adopted by the Board, the Plan shall terminate and have no further force or effect, and all sums collected from Participants during the initial offering period hereunder shall be refunded. B. Unless sooner terminated by the Board, the Plan shall terminate upon the earliest of (i) the date on which all shares available for issuance under the Plan shall have been sold pursuant to purchase rights exercised under the Plan or (ii) the date on which all purchase rights are exercised or terminate in connection with a Change in Control. No further purchase rights shall be granted or exercised, and no further payroll deductions shall be collected, under the Plan, following such termination. X. AMENDMENT OF THE PLAN The Board may alter, amend, suspend or discontinue the Plan at any time to become effective immediately following the close of any offering period. However, the Board may not, without the approval of the Corporation's stockholders, (i) increase the number of shares of Common Stock issuable under the Plan, except for permissible adjustments in the event of certain changes in the Corporation's capitalization, (ii) alter the purchase price formula so as to reduce the purchase price payable for the shares of Common Stock purchasable under the Plan or (iii) modify eligibility requirements for participation in the Plan. -7- 8 XI. GENERAL PROVISIONS A. The Corporation shall pay all costs and expenses incurred in the administration of the Plan; however, each Plan Participant shall bear all costs and expenses incurred by such individual in the sale or other disposition of any shares purchased under the Plan. B. Nothing in the Plan shall confer upon the Participant any right to continue in the employ of the Corporation or any Corporate Affiliate for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Corporation (or any Corporate Affiliate employing such person) or of the Participant, which rights are hereby expressly reserved by each, to terminate such person's employment at any time for any reason, with or without cause. C. The laws of the State of Delaware shall govern the provisions of the Plan without resort to that State's conflict-of-laws rules. D. The Corporation and each Participating Corporation shall have the right to take whatever steps the Plan Administrator deems necessary or appropriate to comply with all applicable federal, state, local, employment or other tax withholding requirements, and the Corporation's obligations to deliver shares under this Plan shall be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, the Corporation and each Participating Employer shall have the right to withhold taxes from any other compensation or other amounts which it may owe to the Participant, or to require the Participant to pay to the Corporation or the Participating Corporation the amount of any taxes which the Corporation or the Participating Corporation may be required to withhold with respect to such shares. In this connection, the Plan Administrator may require the Participant to notify the Plan Administrator, the Corporation, or a Participating Corporation before the Participant sells or otherwise disposes of any shares acquired under the Plan. -8- 9 SCHEDULE A CORPORATIONS PARTICIPATING IN EMPLOYEE STOCK PURCHASE PLAN AS OF THE EFFECTIVE TIME _____________________________, a ____________ corporation 10 APPENDIX The following definitions shall be in effect under the Plan: A. BOARD shall mean the Corporation's Board of Directors. B. TOTAL COMPENSATION shall mean the (i) base salary payable to a Participant by one or more Participating Companies during such individual's period of participation in one or more offering periods under the Plan plus (ii) all overtime payments, bonuses, commissions, current profit-sharing distributions and other incentive-type payments. Such Total Compensation shall be calculated before deduction of (A) any income or employment tax withholdings or (B) any pre-tax contributions made by the Participant to any Code Section 401(k) salary deferral plan or any Code Section 125 cafeteria benefit program now or hereafter established by the Corporation or any Corporate Affiliate. However, Total Compensation shall NOT include any contributions (other than Code Section 401(k) or Code Section 125 contributions) made on the Participant's behalf by the Corporation or any Corporate Affiliate to any employee benefit or welfare plan now or hereafter established. C. CHANGE IN CONTROL shall mean the occurrence of any of the following: (i) Any "Person" or "Group" (as such terms are defined in Section 13(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations promulgated thereunder), other than the Corporation or a person that directly or indirectly controls, is controlled by, or is under common control with, the Corporation, becomes the "Beneficial Owner" (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Corporation, or of any entity resulting from a merger or consolidation involving the Corporation, representing more than fifty percent (50%) of the combined voting power of the then outstanding securities of the Corporation or such entity. (ii) The consummation of (x) a merger, consolidation or reorganization to which the Corporation is a party, whether or not the Corporation is the Person surviving or resulting therefrom, or (y) a sale, assignment, lease, conveyance or other disposition of all or substantially all of the assets of the Corporation, in one transaction or a series of related transactions, to any Person other than the Corporation, where any such transaction or series of related transactions as is referred to in clause (x) or clause (y) above in this subparagraph (ii) (singly or collectively, a "Transaction") does not otherwise result in a "Change in Control" pursuant to subparagraph (i) of this definition of "Change in Control"; provided, however, that no such Transaction shall constitute a "Change in Control" under this subparagraph (ii) if the Persons who were the stockholders of the Corporation immediately before the consummation of such Transaction are the Beneficial Owners, immediately following the consummation of such Transaction, of fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the Person surviving or resulting from any merger, consolidation or reorganization referred to in clause (x) above in this subparagraph (ii) or the Person to whom the assets of the Corporation are sold, assigned, leased, conveyed or 11 disposed of in any transaction or series of related transactions referred in clause (y) above in this subparagraph (ii), in substantially the same proportions in which such Beneficial Owners held voting stock in the Corporation immediately before such Transaction. D. CODE shall mean the Internal Revenue Code of 1986, as amended. E. COMMON STOCK shall mean the Corporation's common stock. F. CORPORATE AFFILIATE shall mean any parent or subsidiary corporation of the Corporation (as determined in accordance with Code Section 424), whether now existing or subsequently established. G. CORPORATION shall mean WJ Communications, Inc., a Delaware corporation, and any corporate successor to all or substantially all of the assets or voting stock of WJ Communications, Inc. which shall by appropriate action adopt the Plan. H. EFFECTIVE TIME shall mean May 1, 2001. Any Corporate Affiliate which becomes a Participating Corporation after such Effective Time shall designate a subsequent Effective Time with respect to its employee-Participants. I. ELIGIBLE EMPLOYEE shall mean any Employee who has completed 3 months of service with a Participating Corporation. J. EMPLOYEE shall mean a person treated as an employee of a Participating Corporation for purposes of Code Section 423. A Participant shall be deemed to have ceased to be an Employee either upon actual termination of employment or upon a Corporate Affiliate or Affiliates employing the Participant ceasing to be a Participating Corporation. For purposes of the Plan, an individual shall not de deemed to have ceased to be an Employee while on any military leave, sick leave, or other bona fide leave of absence approved by the Corporation of ninety (90) days or less. If an individual's leave of absence exceeds ninety (90) days, the individual shall be deemed to have ceased to be an Employee under the Plan on the ninety-first (91) day of such leave unless the individuals right to reemployment with the Participating Corporation is guaranteed either by statute or by contract. The Plan Administrator shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee and the effective date of such individual's employment or termination of employment, as the case may be, and such determination shall be final, binding and conclusive. K. ENTRY DATE shall mean the date an Eligible Employee first commences participation in the offering period in effect under the Plan. The earliest Entry Date under the Plan shall be the Effective Time. L. FAIR MARKET VALUE per share of Common Stock on any relevant date shall be determined in accordance with the following provisions: (i) If the Common Stock is at the time traded on the Nasdaq National Market, then the Fair Market value shall be the closing selling price per share of Common Stock on the date in question, as such price is reported by the National -2- 12 Association of Securities Dealers on the Nasdaq National Market. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists. (ii) If the Common Stock is at the time listed on any Stock Exchange, then the Fair market Value shall be the closing selling price per share of Common Stock on the date in question on the Stock Exchange determined by the Plan Administrator to be the primary market for the Common stock, as such price is officially quoted in the composite tape of transactions on such exchange. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists. M. 1933 ACT shall mean the Securities Act of 1933, as amended. N. PARTICIPANT shall mean any Eligible Employee of a Participating Corporation who is actively participating in the Plan. O. PARTICIPATING CORPORATION shall mean the Corporation and such Corporate Affiliate or Affiliates as may be authorized from time to time by the Board to extend the benefits of the Plan to their Eligible Employees. The Participating Corporations in the Plan are listed in attached Schedule A. P. PLAN shall mean the Corporation's 2001 Employee Stock Purchase Plan, as set forth in this document. Q. PLAN ADMINISTRATOR shall mean the Board, or a committee designated by the Board, which committee shall consist solely of two (2) or more persons who are "non-employee directors" within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended. R. PURCHASE DATE shall mean the last payroll day of each offering period. S. STOCK EXCHANGE shall mean either the American Stock Exchange, or the New York Stock Exchange. -3- EX-5.1 5 g70728ex5-1.txt OPINION OF SHUMAKER, LOOP & KENDRICK, LLP 1 EXHIBIT 5.1 SHUMAKER, LOOP & KENDRICK, LLP 2800 BANK OF AMERICA PLAZA 101 EAST KENNEDY BOULEVARD POST OFFICE BOX 172609 TAMPA, FLORIDA 33672-0609 July 27, 2001 WJ Communications, Inc. 401 River Oaks Parkway San Jose, California 95134 Re: Registration Statement on Form S-8 of WJ Communications, Inc. Ladies and Gentlemen: We have assisted WJ Communications, Inc. (the "Company") in connection with the preparation and filing of its Registration Statement on Form S-8 with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of 1933, as amended, for the registration of an aggregate of 3,500,000 shares of the common stock of the Company, par value $.01 per share (the "Shares"), to be offered pursuant to: (1) the WJ Communications, Inc. 2001 Employee Stock Incentive Plan, and (2) the WJ Communications, Inc. 2001 Employee Stock Purchase Plan (collectively the "Plans"). This opinion is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Act"). In connection with the following opinion, we have examined and have relied upon such documents, records, certificates, statements and instruments as we have deemed necessary and appropriate to render the opinion herein set forth. Based upon the foregoing, it is our opinion that the Shares, when issued, delivered and paid for in accordance with the terms of the Plans, will be legally issued, fully paid and nonassessable. This opinion letter is limited to the federal laws of the United States and the general corporation laws of the State of Delaware, as such laws presently exist and to the facts as they presently exist. We express no opinion with respect to the effect or applicability of the laws of any other jurisdiction. We assume no obligation to revise or supplement this opinion letter should the laws of such jurisdictions be changed after the date hereof by legislative action, judicial decision or otherwise. The undersigned hereby consents to the filing this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 and to the use of its name in the Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 17 of the Act. Very truly yours, /s/ Shumaker, Loop & Kendrick, LLP --------------------------------------- SHUMAKER, LOOP & KENDRICK, LLP EX-23.2 6 g70728ex23-2.txt CONSENT OF ARTHUR ANDERSEN LLP, PUBLIC ACCOUNTANTS 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated January 25, 2001 included in WJ Communications, Inc.'s Form 10-K for the year ended December 31, 2000 and to all references to our Firm included in this registration statement. San Jose, California /s/ ARTHUR ANDERSEN LLP July 27, 2001 ----------------------- Arthur Andersen LLP EX-23.3 7 g70728ex23-3.txt CONSENT OF DELOITTE & TOUCHE, LLP 1 EXHIBIT 23.3 Consent Of Deloitte & Touche LLP, Independent Auditors We consent to the incorporation by reference in this Registration Statement of WJ Communications, Inc. on Form S-8 of our report dated January 31, 2000 on the consolidated financial statements for the year ended December 31, 1998, appearing in the Annual Report on Form 10-K of WJ Communications, Inc. for the year ended December 31, 2000. July 27, 2001 San Jose, California