-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PLnq6OP7D2iArvWRdV716tEiznjlgD/Wj99bfmq7rt6sfME8M/PZWssAEaOOysNN +x08xDfoBjNQnqhhfKHPaQ== 0000906344-97-000098.txt : 19970912 0000906344-97-000098.hdr.sgml : 19970912 ACCESSION NUMBER: 0000906344-97-000098 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19970905 EFFECTIVENESS DATE: 19970905 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CALIFORNIA MICROWAVE INC CENTRAL INDEX KEY: 0000016357 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 941668412 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-35025 FILM NUMBER: 97676014 BUSINESS ADDRESS: STREET 1: 985 ALMANOR AVE CITY: SUNNYVALE STATE: CA ZIP: 94086 BUSINESS PHONE: 4087324000 MAIL ADDRESS: STREET 1: 985 ALMANOR AVENUE CITY: SUNNYVALE STATE: CA ZIP: 94086 S-8 1 FORM S-8 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on September 5, 1997 Registration Statement No. 333-____ =========================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _________________________ CALIFORNIA MICROWAVE, INC. (Exact name of registrant as specified in its charter) Delaware 94-1668412 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 555 Twin Dolphin Drive, Redwood City, California 94065 (Address of Principal Executive Offices) (Zip Code) 1992 STOCK OPTION PLAN NON-QUALIFIED STOCK OPTION AGREEMENT (Full title of the plans) George L. Spillane, Vice President and Chief Financial Officer California Microwave, Inc. 555 Twin Dolphin Drive Redwood City, California 94065 (Name and address, including zip code, of agent for service) (415) 596-9000 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE ___________________________________________________________________________ Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of to be be Offering Price Aggregate Registration Registered Registered per Share* Offering Price* Fee ___________________________________________________________________________ Common Stock, par value $.10 per share: 1992 Stock Option Plan 1,500,000 $16.07 $24,105,000 $7,304.00 Non-Qualified Stock Option 300,000 $16.07 $ 4,821,000 $1,461.00 TOTAL $8,765.00 *Estimated solely for the purpose of computing the registration fee pursuant to Rule 457, on the basis of the average of the high and low prices of the Registrant's Common Stock as reported on the Nasdaq National Market on August 29, 1997 -2- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents are incorporated by reference in this registration statement: (a) Registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1996, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) Registrant's Quarterly Report on Form 10-Q for the quarters ended September 30, 1996, December 31, 1996 and March 31, 1997, filed pursuant to Section 13(a) of the Exchange Act; (c) All other reports, if any, filed by Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year ended June 30, 1996; (d) The description of Registrant's Common Stock contained in the Registration Statement on Form 8-A dated September 25, 1973, as amended by the Form 8 dated February 19, 1993, as filed pursuant to the Exchange Act; the Company's description of its Common Stock Purchase Rights appearing in the Company's Registration Statement on Form 8-A dated August 1, 1989; and any amendment or report filed for the purpose of updating any such description. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereunder have been sold, or which deregisters all securities then remaining unsold under this registration statement, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. DESCRIPTION OF SECURITIES. Not applicable; the class of securities to be offered is registered under Section 12 of the Exchange Act. -1- Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL. Not applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. As permitted by sections 102 and 145 of the Delaware General Corporation Law, the Registrant's certificate of incorporation eliminates a director's personal liability for monetary damages to the Registrant and its stockholders arising from a breach or alleged breach of a director's fiduciary duty, except for liability under section 174 of the Delaware General Corporation Law or liability for any breach of the director's duty of loyalty to the Registrant or its stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or for any transaction from which the director derived an improper personal benefit. The effect of this provision in the certificate of incorporation is to eliminate the rights of the Registrant and its stockholders (through stockholders' derivative suits on behalf of the Registrant) to recover monetary damages against a director for breach of fiduciary duty as a director (including breaches resulting from negligent or grossly negligent behavior) except in the situations described above. The Registrant's bylaws provide for indemnification of officers, directors and employees, and the Company has entered into an indemnification agreement with each officer and director of the Registrant (an "Indemnitee"). Under the bylaws and such indemnification agreements, the Registrant must indemnify an Indemnitee to the fullest extent permitted by Delaware law for losses and expenses incurred in connection with actions in which the Indemnitee is involved by reason of having been a director or employee of the Registrant. In certain circumstances, the Registrant is also obligated to advance expenses an Indemnitee may incur in connection with such actions before any resolution of the action, and the Indemnitee may sue to enforce his or her right to indemnification or advancement of expenses. The Registrant also maintains an insurance policy insuring its directors and officers against liability for certain acts and omissions while acting in their official capacities. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. -2- Item 8. EXHIBITS. Exhibit Number Description of Document 4.1 1992 Stock Option Plan, as amended through July 11, 1997 4.2 Non-Qualified Stock Option Agreement between California Microwave, Inc. and Frederick D. Lawrence, dated effective as of July 16, 1997 5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation 23.1 Consent of Ernst & Young LLP, independent auditors 23.2 Consent of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation (included in Exhibit 5.1) 24.1 Powers of Attorney Item 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more -3- than a 20% change in the maximum offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in -4- 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 Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. -5- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements of filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Redwood City, State of California, on the 29 day of August, 1997. CALIFORNIA MICROWAVE, INC. By/s/ Frederick D. Lawrence ________________________________ Frederick D. Lawrence, Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated. /s/ Frederick D. Lawrence Chief Executive August 29, 1997 ______________________________ Officer, FREDERICK D. LAWRENCE President, Chairman of the Board (principal executive officer) /s/ George L. Spillane Vice President, August 29, 1997 ______________________________ Chief Financial GEORGE L. SPILLANE Officer (principal financial officer and principal accounting officer) /s/ Edward E. David, Jr.* Director August 29, 1997 ______________________________ EDWARD E. DAVID, JR. /s/ Alfred M. Gray* Director August 29, 1997 ______________________________ ALFRED M. GRAY /s/ Arthur H. Hausman* Director August 29, 1997 ______________________________ ARTHUR H. HAUSMAN -6- /s/ J.J. Adorjan* Director August 29, 1997 ______________________________ J.J. ADORJAN /s/ David B. Leeson* Director August 29, 1997 ______________________________ DAVID B. LEESON /s/ William B. Marx, Jr.* Director August 29, 1997 ______________________________ WILLIAM B. MARX, JR. /s/ Terry W. Ward* Director August 29, 1997 ______________________________ TERRY W. WARD /s/ Frederick W. Whitridge,Jr.* Director August 29, 1997 ______________________________ FREDERICK W. WHITRIDGE, JR. By:/s/ George L. Spillane ______________________________ George L. Spillane, Attorney-in-fact -7- INDEX TO EXHIBITS Exhibit Number Description of Document 4.1 1992 Stock Option Plan, as amended. 4.2 Non-Qualified Stock Option Agreement between California Microwave, Inc. and Frederick D. Lawrence, dated effective as of July 17, 1997 5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation. 23.1 Consent of Ernst & Young LLP, independent auditors. 23.2 Consent of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A Professional Corporation (included in Exhibit 5.1). 24.1 Powers of Attorney. -8- EX-4.1 2 EXHIBIT 4.1 - 1992 STOCK OPTION PLAN 1992 Stock Option Plan of CALIFORNIA MICROWAVE, INC. (as amended through July 11, 1997) 1. PURPOSE The purpose of the 1992 Stock Option Plan (the "Plan") is to enable California Microwave, Inc. (the "Company") and its subsidiaries to attract and retain officers and other key employees, directors, and consultants and to provide them with additional incentive to advance the interests of the Company. Options qualifying as incentive stock options under Section 422 of the Internal Revenue Code of 1954, as amended, and non-qualified options may be granted under the Plan. 2. ADMINISTRATION (a) The Plan shall be administered by the Board of Directors of the Company, or by a committee (the "Committee") of two or more directors selected by the Board. (b) The Board of Directors or the Committee shall have the power, subject to the express provisions of the Plan: (1) To determine the recipients of options under the Plan, the time of grant of the options, and the number of shares covered by the grant. (2) To prescribe the terms and provisions of each option granted (which need not be identical). (3) To construe and interpret the Plan and options, to establish, amend, and revoke rules and regulations for the Plan's administration, and to make all other determinations necessary or advisable for the administration of the Plan. 3. SHARES SUBJECT TO THE PLAN Subject to the provisions of Paragraph 7 (relating to the adjustment upon changes in stock), the number of shares which may be sold pursuant to options granted under the Plan shall not exceed in the aggregate 3,100,000 shares of Common Stock of the Company. Shares sold pursuant to options granted under the Plan may be unissued shares or reacquired shares. If any options granted under the Plan shall for any reason terminate or expire without having been exercised in full, the shares not purchased under such -1- options shall be available again for the purposes of the Plan. 4. ELIGIBILITY (a) Options under this Plan may be granted to officers and other key employees and consultants of the Company and/or of its subsidiaries, provided that incentive stock options may be granted hereunder only to officers and other key employees (including directors who are also officers or employees). No officer or key employee may receive options under this Plan covering in excess of 100,000 shares in any fiscal year of the Company (subject to adjustment in accordance with the provisions of paragraph 7 of the Plan), except that such limit is 200,000 shares with respect to options granted in connection with inducing an individual to become an employee of the Company. (b) Each director of the Company who is not an employee of the Company shall receive a non-qualified stock option under the Plan immediately following each annual meeting of shareholders of the Company. The first option received by a director under this paragraph 4(b) shall cover 10,000 shares of common stock of the Company and each option received by a director under this Plan thereafter shall cover 5,000 shares of common stock in the case of a director who is a chair of a committee of the Board of Directors and 3,000 shares in the case of a director who is not. Each such option shall have an exercise price equal to the fair market value of the common stock of the Company on the date of the annual meeting of shareholders to which it relates, determined in accordance with the provisions of paragraph 5(a)(2) of this Plan. The number of options that directors may receive pursuant to this paragraph 4(b) shall be appropriately adjusted in accordance with the provisions of paragraph 7 of this Plan. This paragraph 4(b) shall not be amended more than once every six months, other than to comply with changes in the Internal Revenue Code, the Employee Retirement Income Security Act or the rules or regulations thereunder. (c) Persons to whom options to purchase shares are granted are hereinafter referred to as "optionee(s)." 5. TERMS OF OPTION AGREEMENTS (a) All Option Agreements. Options granted pursuant to the Plan shall be evidenced by agreements specifying the number of shares covered thereby, in such form as the Board of Directors or Committee shall from time to time establish, which agreements may incorporate all or any -2- of the terms hereof by reference and shall comply with and be subject to the following terms and conditions: (1) The Board of Directors or Committee shall have the power to set the time or times within which each option shall be exercisable and to at any time accelerate the time or times of exercise (notwithstanding the terms of the option). Unless the stock option agreement executed by the optionee expressly otherwise provides, (i) an option granted to an officer or other key employees or consultant shall become exercisable on a cumulative basis as to one-quarter of the total number of shares covered thereby on each of the first, second, third, and fourth anniversary dates of the date of grant of the option, (ii) an option granted to a director who is not an employee of the Company shall vest fully on the date of grant, and (iii) an option shall not be exercisable after the expiration of ten years from the date of grant. Any option granted to an executive officer or director of the Company shall in no event be exercisable until the elapse of six months from the date of its grant. (2) Except as provided in Paragraph 5(b) below, the exercise price of any stock option granted under this Plan shall not be less than 100% of the fair market value of the shares of common stock of the Company on the date of the granting of the option. The fair market value per share shall be the last sale price on the day the option is granted as reported on the National Market System, or, if such stock is not then reported on the National Market System but quotations are reported on the National Association of Securities Dealers Automated Quotations System, the average of the bid and asked prices on the day the option is granted, in either event as such price quotes are listed in The Wall Street Journal, Western Edition (or if not so reported in The Wall Street Journal, any other listing service or publication known to the Board of Directors). If the stock is listed upon an established stock exchange or exchanges, such fair market value shall be deemed to be the closing price of the common stock on the largest such stock exchange upon which such stock is listed on the day the option is granted. (3) To the extent that the right to purchase shares has accrued hereunder, options may be exercised from time to time by written notice to the Company, stating the number of shares being purchased and accompanied by the payment in full of the option price for such shares. Such payment shall be made in cash or in shares of the outstanding common stock of the Company which have been held by the optionee for at least six months or in a combination of cash and such stock, except that the Board of Directors or the Committee in its sole discretion may authorize payment by any optionee (for all or part of his or her purchase price) by a -3- promissory note or such other from of legal consideration that may be acceptable to the Board or Committee. If shares of common stock are used in part or full payment for the shares to be acquired upon exercise of the option, such shares shall be valued for the purpose of such exchange as of the date of exercise of the option in accordance with the provisions of Subparagraph (2) above. Any certificates for shares of outstanding common stock used to pay the option price shall be accompanied by stock powers duly endorsed in blank by the registered holder of the certificate (with the signature thereon guaranteed). In the event the certificates tendered by the optionee in such payment cover more shares than are required for such payment, the certificates shall also be accompanied by instructions from the optionee to the Company's transfer agent with regard to disposition of the balance of the shares covered thereby. If payment by promissory note is authorized, the interest rate, term, repayment schedule and other provisions of such note shall be as specified by the Board of Directors or the Committee; provided, however, that such note shall bear interest at a rate not less than the applicable test rate of interest prescribed by Regulation 1.483-1(d)(1) of the Income Tax Regulations, as in effect at the time the stock is purchased. The Board of Directors or Committee may require that the optionee pledge his or her stock to the Company for the purpose of securing the payment of such note, and the Company may hold the certificate(s) representing such stock in order to perfect its security interest. An option may be exercised by a securities broker acting on behalf of an optionee pursuant to authorization instructions approved by the Company, provided that the notice of exercise of such option shall be delivered, and the exercise price of such option shall be paid in full, as specified above. (4) The Company at all times shall keep available the number of shares of stock required to satisfy options granted under the Plan. (5) The Company may require any person to whom an option is granted, his or her legal representative, heir, legatee, or distributee, as a condition of exercising any option granted hereunder, to give written assurance satisfactory to the Company to the effect that such person is acquiring the shares subject to the option for his or her own account for investment and not with any present intention of selling or otherwise distributing the same. The Company reserves the right to place a legend on any share certificate issued pursuant to this Plan to assure compliance with this -4- paragraph. No shares of common stock of the Company shall be required to be distributed until the Company shall have taken such action, if any, as is then required to comply with the provisions of the Securities Act of 1933 or any other then applicable securities law. (6) Neither a person to whom an option is granted, nor such person's legal representative, heir, legatee, or distributee, shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such option unless and until such person has exercised his or her option pursuant to the terms thereof. (7) No stock option shall be transferrable by the optionee otherwise than by will, or if the optionee dies intestate, by the laws of descent and distribution of the state of domicile of the optionee at the time of death, provided that a non-qualified stock option may be transferred by the optionee to a trust or other entity established by the optionee for estate planning purposes. Except for exercises of non-qualified stock options by trusts or entities established by the optionee for estate planning purposes, all stock options shall be exercisable during the lifetime of the optionee only by the optionee. (8) An option granted to an employee or director shall terminate and may not be exercised if the person to whom it is granted ceases to be employed by the Company or by a subsidiary of the Company, or ceases to be a director (unless such person continues as an employee), with the following exceptions: (i) If the employment or directorship is terminated for any reason other than the person's death or disability, he or she may at any time within not more than three months after such termination exercise the option, but only to the extent that it was exercisable by such person on the date of such termination, or (ii) If such person dies or becomes disabled while in the employ of the Company or of a subsidiary, or while a director, his or her option may be exercised by his or her personal representatives, heirs or legatees at any time within not more than twelve (12) months following the date of death or disability, but only to the extent such option was exercisable by such person on the date of death or disability. An option granted to a consultant shall terminate in accordance with the terms specified in the option. -5- (9) In no event may an option be exercised by anyone after the expiration of the term of the option established pursuant to Subparagraph 5(a)(1) hereof. (10) Each option granted pursuant to this Plan shall specify whether it is a non-qualified or an incentive stock option, provided that the Board of Directors or Committee may give the optionee the right to elect to receive either an incentive or a non-qualified stock option. (11) An option granted pursuant to this Plan may have such other terms as the Board of Directors or Committee in its discretion may deem necessary or appropriate and shares issued upon exercise of any option hereunder may be subject to such restrictions as the Board of Directors or Committee deems appropriate. (b) Incentive Stock Options. In addition to the terms and conditions specified above, incentive stock options granted under this Plan shall be subject to the following terms and conditions: (1) The aggregate fair market value (determined as of the time the option is granted) of the stock with respect to which incentive stock options are exercisable for the first time by any optionee during any calendar year (under all option plans of the Company or its parent and subsidiary corporations) shall not exceed $100,000. (2) As to individuals otherwise eligible under this Plan who own more than 10 percent of the total combined voting power of all classes of stock of the Company and its parent and subsidiary corporations, an incentive option can be granted under this Plan to any such individual only if at the time such option is granted the option price is at least 110 percent of the fair market value of the stock subject to the option and such option by its terms is not exercisable after the expiration of five years from the date such option is granted. 6. USE OF PROCEEDS FROM SHARES Proceeds from the sale of shares pursuant to options granted under the Plan shall be used for general corporate purposes. 7. ADJUSTMENT UPON CHANGES IN SHARES (a) If any change is made in the shares subject to the Plan, or subject to any option granted under the Plan (through merger, consolidation, reorganization, -6- recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise), appropriate adjustments shall be made by the Board of Directors or Committee in the maximum number of shares subject to the Plan and the number of shares and price per share of stock subject to outstanding options. (b) Other than in the case of a reincorporation of the Company in another state, in the event of (i) dissolution or liquidation of the Company, (ii) a transaction in which more than 50 percent of the shares of the Company that are entitled to vote are exchanged, or (iii) any merger or consolidation or other reorganization in which the Company is not the surviving corporation (or in which the Company becomes a subsidiary of another corporation), outstanding options under this Plan shall become fully exercisable immediately prior to any such event. 8. RIGHTS AS AN EMPLOYEE. Nothing in this Plan or in any options awarded hereunder shall confer upon any employee any right to continue in the employ of the Company or of any of its subsidiaries or interfere in any way with the right of the Company or any such subsidiary to terminate such employee's employment at any time. 9. WITHHOLDING TAX There shall be deducted from the compensation of any employee holding options under this Plan the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of the person with respect to such options. 10. TERMINATION AND AMENDMENT OF PLAN The Board of Directors may at any time terminate this Plan or make such modifications of the Plan as it shall deem advisable. Any modification which increases the number of shares which may be issued under the Plan (other than pursuant to Paragraph 7 hereof ), or changes the requirements as to eligibility for participation in the Plan, and any repricing of outstanding options (other than pursuant to Paragraph 7 hereof), shall become effective only upon approval of the holders of a majority of the securities of the Company present, or represented, and entitled to vote at a meeting duly held in accordance with the laws of the State of Delaware. -7- 11. INDEMNIFICATION In addition to such other rights of indemnification as they may have as directors, the members of the Board of Directors or Committee administering the Plan shall be indemnified by the Company against the reasonable expenses, including attorneys' fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any option granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such member is liable for negligence or misconduct in the performance of his duties; provided that within 60 days after institution of any such action, suit or proceeding, the member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same. 12. EFFECTIVE DATE AND DURATION OF THE PLAN The 1992 Stock Option Plan shall become effective on July 23, 1992. Any rights granted under this Plan must be granted within ten (10) years of such effective date. -8- EX-4.2 3 EXHIBIT 4.2 - NON-QUALIFIED STOCK OPTION AGREEMENT NON-QUALIFIED STOCK OPTION AGREEMENT THIS NON-QUALIFIED STOCK OPTION AGREEMENT entered into effective as of July 16, 1997 by and between California Microwave, Inc., a Delaware corporation ("Company") and Frederick D. Lawrence ("Optionee"). WITNESSETH: WHEREAS, in connection with the employment of Optionee the Company has granted to Optionee, effective as of July 16, 1997, a non-qualified option to purchase certain shares of its common stock, which option is not granted under the Company's 1992 Stock Option Plan (the "Plan") but nevertheless will be subject to the terms and conditions that are contained in the Plan. NOW, THEREFORE, Company and Optionee mutually agree as follows: 1. Company hereby grants Optionee a non-qualified option (the "Option") to acquire up to 300,000 shares of the Company's common stock (the "Shares") at a price of $16.25 per share. 2. The Option shall terminate on, and shall not be exercisable after, 5:00 P.M. Pacific Time on July 16, 2007. The other terms of the Option shall be the same as those provided for in the Plan, including the provisions of paragraph 5(a)(1) of the Plan which specify the dates on which the right to acquire shares under this option will vest. The date of grant of this option is July 16, 1997. The Plan is attached hereto as Exhibit A and is incorporated herein by this reference. Optionee acknowledges that he has read the Plan and agrees to be bound by its terms. 3. Any notice to be given by Optionee under the terms of the Plan shall be deemed to have been duly given if sent by certified mail, postage and certification prepaid, to the Company at 555 Twin Dolphin Drive, Redwood City, California 94065 Attention: Chief Financial Officer. -1- IN WITNESS WHEREOF, the Company and Optionee have caused this Agreement to be executed as of the day and year first referred to above. CALIFORNIA MICROWAVE, INC. By:_____________________________ Name: Title: OPTIONEE ________________________________ Frederick D. Lawrence Attachment A: California Microwave, Inc. 1992 Stock Option Plan -2- EX-5.1 4 EXHIBIT 5.1 - OPINION OF HOWARD, RICE ET AL. Exhibit 5.1 September 4, 1997 California Microwave, Inc. 555 Twin Dolphin Drive Redwood City, California 94065 Ladies and Gentlemen: You have requested our opinion as counsel for California Microwave, Inc., a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder, and the public offering by the Company of up to 1,500,000 shares of Common Stock issuable under the Company's 1992 Stock Option Plan and up to 300,000 shares issuable under the Company's Non-Qualified Stock Option Agreement with Frederick D. Lawrence dated effective as of July 16, 1997. We have examined the Company's Registration Statement of Form S-8 in the form to be filed with the Securities and Exchange Commission on or about September 5, 1997 (the "Registration Statement"). We further have examined the Restated Certificate of Incorporation of the Company as certified by the Secretary of State of the State of Delaware, the Bylaws and the minute books of the Company as a basis for the opinion hereafter expressed. Based on the foregoing examination, we are of the opinion that, upon issuance and sale in the manner described in the Registration Statement, the shares of Common Stock covered by the Registration Statement will be legally issued, fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, HOWARD, RICE, NEMEROVSKI, CANADY, FALK & RABKIN A Professional Corporation By: /s/ Richard W. Canady _____________________________ RICHARD W. CANADY EX-23 5 EXHIBIT 23.1 - CONSENT OF ERNST & YOUNG LLP Exhibit 23.1 [Letterhead of Ernst & Young LLP] CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1992 Stock Option Plan of California Microwave, Inc. and the Non- Qualified Stock Option Agreement between California Microwave, Inc. and Fred Lawrence dated effective as of July 16, 1997, of our reports dated August 5, 1996 with respect to the consolidated financial statements and schedule of California Microwave, Inc. included in and incorporated by reference in its Annual Report (Form 10-K) for the year ended June 30, 1996, filed with the Securities and Exchange Commission. Ernst & Young LLP Palo Alto, California September 2, 1997 EX-24 6 EXHIBIT 24.1 - POWERS OF ATTORNEY Exhibit 24.1 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below, being a member of the Board of Directors of California Microwave, Inc. (the "Company"), hereby constitutes and appoints Frederick D. Lawrence and George L. Spillane, and each of them, as his true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for and in his name, place and stead, in any and all capacities, to sign on his behalf the Company's Registration Statement on Form S-8 with respect to up to 1,500,000 shares of its common stock issuable under the Company's 1992 Stock Option Plan and up to 300,000 shares of its common stock issuable under the Non-Qualified Stock Option Agreement between the Company and Frederick D. Lawrence dated effective as of July 17, 1997, and any and all amendments (including post-effective amendments) thereto and any Registration Statement relating to the same offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith and with such Registration Statements, with the Securities and Exchange Commission, with the full power and authority to do and perform each and every act and thing necessary or advisable to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. DATED: July 29, 1997 /s/ Edward E. David, Jr. /s/ David B. Leeson _______________________________ ________________________________ EDWARD E. DAVID, JR. DAVID B. LEESON /s/ Alfred M. Gray /s/ Arthur H. Hausman _______________________________ ________________________________ ALFRED M. GRAY ARTHUR H. HAUSMAN /s/ William B. Marx, Jr. /s/ Terry W. Ward _______________________________ ________________________________ WILLIAM B. MARX, Jr. TERRY W. WARD /s/ Frederick W. Whitridge, Jr. /s/ J. J. Adorjan _______________________________ ________________________________ FREDERICK W. WHITRIDGE, JR. J.J. ADORJAN -----END PRIVACY-ENHANCED MESSAGE-----