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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant¨ Filed by a Party other than the Registrant¨
Check the appropriate box:
¨ | Preliminary Proxy Statement |
¨ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
x | Definitive Proxy Statement |
¨ | Definitive Additional Materials |
¨ | Soliciting Material Pursuant to §240.14a-12 |
POWERWAVE TECHNOLOGIES, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
x | No fee required. |
¨ | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
(1) | Title of each class of securities to which transaction applies: |
(2) | Aggregate number of securities to which transaction applies: |
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
(4) | Proposed maximum aggregate value of transaction: |
(5) | Total fee paid: |
¨ | Fee paid previously with preliminary materials. |
¨ | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Amount Previously Paid: |
(2) | Form, Schedule or Registration Statement No.: |
(3) | Filing Party: |
(4) | Date Filed: |
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EXPLANATORY NOTE
This filing was made to correct typographical errors in the document.
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NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To Be Held August 12, 2008
To Our Shareholders:
The Annual Meeting of Shareholders of Powerwave Technologies, Inc. will be held at the offices of Powerwave located at 1801 E. St. Andrew Place, Santa Ana, CA 92705, on August 12, 2008 at 10:00 a.m., Pacific Time, for the following purposes:
1. | To elect seven directors to hold office until the next Annual Meeting of Shareholders or until their successors are duly elected and qualified; |
2. | To approve an amendment to the Extended and Restated 1996 Employee Stock Purchase Plan, which increases the authorized number of common shares available for sale under the plan from 390,953 to 1,890,953 shares; |
3. | To ratify the appointment of Deloitte & Touche LLP as independent auditors for fiscal year 2008; and |
4. | To transact such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof. |
The Board of Directors recommends that you vote for each of the seven nominees for director, for the amendment to the Extended and Restated Employee Stock Purchase Plan and for the ratification of Deloitte & Touche LLP as independent auditors for fiscal 2008. Only shareholders of record at the close of business on June 27, 2008 are entitled to notice of and to vote at the Annual Meeting.
Pursuant to new rules promulgated by the Securities and Exchange Commission, we have elected to provide access to our proxy materials both by sending you this full set of proxy materials, including a proxy card, and by notifying you of the availability of our proxy materials on the Internet. This proxy statement and our fiscal 2007 Annual Report to Shareholders are available at our website at http://www.powerwave.com/ir/.
All shareholders are urged to attend the Annual Meeting in person or by proxy.YOUR VOTE IS IMPORTANT.WHETHER OR NOT YOU EXPECT TO ATTEND THE ANNUAL MEETING IN PERSON, PLEASE SIGN AND SUBMIT YOUR PROXY AS SOON AS POSSIBLE SO THAT YOUR SHARES CAN BE VOTED AT THE ANNUAL MEETING IN ACCORDANCE WITH YOUR INSTRUCTIONS. (BENEFICIAL OWNERS MAY VOTE OVER THE INTERNET, BY TELEPHONE, OR BY MAILING THE ENCLOSED VOTING INSTRUCTIONS.) For specific instructions on voting, please refer to the instructions on your enclosed proxy card. The proxy is revocable and will not affect your right to vote in person in the event you attend the Annual Meeting. You may revoke your proxy at any time before it is voted. In addition, if you plan to attend the Annual Meeting in person, please check the appropriate box so that we can ensure we have proper accommodations.
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting of Shareholders to be held on August 12, 2008.
This Proxy Statement and our Annual Report to Shareholders for the fiscal year 2007 are available online at http://www.powerwave.com/ir/.
By Order of the Board of Directors | ||
Santa Ana, California | Kevin T. Michaels | |
July 3, 2008 | Chief Financial Officer and Secretary |
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PROPOSAL 3 - RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS | 32 | |
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POWERWAVE TECHNOLOGIES, INC.
1801 E. St. Andrew Place
Santa Ana, California 92705
PROXY STATEMENT
This Proxy Statement contains information related to the solicitation of proxies by and on behalf of the Board of Directors of Powerwave Technologies, Inc. (the “Company” or “Powerwave”) for use in connection with the Annual Meeting of Shareholders to be held on August 12, 2008, beginning at 10:00 a.m., Pacific Time, at the offices of Powerwave located at 1801 E. St. Andrew Place, Santa Ana, CA 92705, and at any and all adjournments or postponements thereof. This Proxy Statement and the accompanying proxy are being mailed to shareholders on or about July 11, 2008.
What is the purpose of the Annual Meeting?
At our Annual Meeting, shareholders will act upon the matters outlined in the notice of meeting on the cover page of this Proxy Statement, including the election of directors, the approval of an amendment to the Extended and Restated 1996 Employee Stock Purchase Plan, and ratification of the Company’s independent auditors. In addition, management will be available to respond to questions from shareholders.
Why am I receiving these materials?
Powerwave’s Board of Directors is providing these proxy materials for you in connection with our Annual Meeting of Shareholders, which will take place on August 12, 2008. Shareholders are invited to attend the Annual Meeting and are requested to vote on the proposals described in this Proxy Statement. If you receive more than one proxy card because your shares are registered in different names or at different addresses, please sign and return each proxy card so that all of your shares will be represented at the Annual Meeting. We are delivering multiple Proxy Statements and Annual Reports to multiple shareholders sharing an address unless we have received contrary instructions from one or more of the shareholders. If you are a shareholder residing at a shared address and would like to request an additional copy of the Proxy Statement or Annual Report now or with respect to future mailings (or to request to receive only one copy of the Proxy Statement or Annual Report if you are currently receiving multiple copies), please send your request to Powerwave, Attention Corporate Secretary at the address noted above or call us at (714)466-1000.
What information is contained in these materials?
The information included in this Proxy Statement relates to the proposals to be voted on at the Annual Meeting, the voting process, the compensation of directors and our most highly paid executive officers, and certain other required information. Powerwave’s 2007 Annual Report and audited consolidated financial statements, proxy card and return envelope are also enclosed.
What proposals will be voted on at the Annual Meeting?
There are three proposals scheduled to be voted on at the Annual Meeting:
• | the election of seven directors until the next Annual Meeting of Shareholders; |
• | approval of an amendment to the Extended and Restated 1996 Employee Stock Purchase Plan, which increases the authorized number of common shares available for sale under the plan from 390,953 to 1,890,953 shares; and |
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• | the ratification of the appointment of Deloitte & Touche LLP as Powerwave’s independent auditors for fiscal year 2008. |
Who is entitled to vote at the Annual Meeting?
The Common Stock of Powerwave constitutes the only class of securities entitled to notice of, to attend and to vote at the Annual Meeting of Shareholders. Only shareholders of record at the close of business on June 27, 2008, the record date for the Annual Meeting, are entitled to receive notice of and to participate in the Annual Meeting. As of June 27, 2008 (the “Record Date”), there were 131,392,674 shares of Common Stock issued and outstanding. If you were a shareholder of record on that date, you will be entitled to vote all of the shares that you held on that date at the Annual Meeting, or any postponements or adjournments of the Annual Meeting. Each outstanding share of Powerwave Common Stock will be entitled to one vote on each matter. A list of shareholders as of the Record Date will be available during normal business hours for examination by any shareholder for any purpose germane to the Annual Meeting for a period of ten days prior to August 12, 2008, at the offices of Powerwave Technologies, Inc., 1801 E. St. Andrew Place, Santa Ana, California 92705.
What is the difference between holding shares as a shareholder of record or as a beneficial owner?
Most shareholders of Powerwave hold their shares through a stockbroker, bank or other nominee rather than directly in their own name. As summarized below, there are some distinctions between shares held of record and those owned beneficially.
Shareholder of Record
If your shares are registered directly in your name with our transfer agent, Computershare Limited, you are considered, with respect to those shares, the shareholder of record, and these proxy materials are being sent directly to you by Powerwave. As the shareholder of record, you have the right to grant your voting proxy directly to Powerwave or to vote in person at the Annual Meeting. We have enclosed a proxy card for you to use.
Beneficial Owner
If your shares are held in a stock brokerage account or by a bank or other nominee, you are considered the beneficial owner of shares held in street name, and these proxy materials are being forwarded to you by your broker or nominee who is considered, with respect to those shares, the shareholder of record. As the beneficial owner, you have the right to direct your broker on how to vote and are also invited to attend the Annual Meeting. Your broker or nominee has enclosed a voting instruction card for you to use in directing the broker or nominee how to vote your shares. The voting instruction card provides various alternative voting methods, such as via the Internet, by telephone or by mail.
How can I vote my shares in person at the Annual Meeting?
Shares held directly in your name as the shareholder of record may be voted in person at the Annual Meeting. If you choose to do so, please bring the enclosed proxy card and proof of identification. Even if you plan to attend the Annual Meeting, we recommend that you also submit your proxy as described below so that your vote will be counted if you later decide not to attend the Annual Meeting. Shares held in street name may be voted in person by you only if you obtain a signed proxy from the record holder giving you the right to vote the shares in person.
How can I vote my shares without attending the Annual Meeting?
Whether you hold shares directly as the shareholder of record or beneficially in street name, you may direct your vote without attending the Annual Meeting. You may vote your directly held shares by granting a proxy or, for shares held in street name, by submitting voting instructions to your broker or nominee following the instructions on the form included with this package.
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You may change your proxy instructions at any time prior to the vote at the Annual Meeting. For shares held directly in your name, you may accomplish this by granting a new proxy bearing a later date (which automatically revokes the earlier proxy) or by attending the Annual Meeting and voting in person. Attendance at the Annual Meeting will not cause your previously granted proxy to be revoked unless you specifically request to do so. For shares held beneficially by you, you may accomplish this by submitting new voting instructions to your broker or nominee.
Who can attend the Annual Meeting?
All shareholders as of the Record Date, or their duly appointed proxies, may attend the Annual Meeting. Cameras, recording devices and other electronic devices are not permitted at the Annual Meeting.YOUR VOTE IS VERY IMPORTANT. WHETHER OR NOT YOU EXPECT TO ATTEND THE ANNUAL MEETING IN PERSON, PLEASE SIGN AND SUBMIT YOUR PROXY CARD AS SOON AS POSSIBLE SO THAT YOUR SHARES CAN BE VOTED AT THE ANNUAL MEETING IN ACCORDANCE WITH YOUR INSTRUCTIONS.For specific instructions on voting, please refer to the instructions on your proxy card or the voting instruction card.
What are the Board’s voting recommendations?
Unless you give other instructions on your proxy card, the persons named as proxy holders on the proxy card will vote in accordance with the recommendations of the Board of Directors. The Board’s recommendations are set forth together with the description of each item in this Proxy Statement. In summary, the Board unanimously recommends a vote:
• | FORelection of the nominated slate of directors (see Proposal 1); |
• | FOR approval of the amendment to the Extended and Restated 1996 Employee Stock Purchase Plan which increases the authorized number of common shares available for sale under the plan from 390,953 to 1,890,953 shares (see Proposal 2); and |
• | FOR ratification of the appointment of Deloitte & Touche LLP as the Company’s independent auditors for fiscal 2008 (see Proposal 3). |
With respect to any other matter that properly comes before the Annual Meeting, the proxy holders will vote as recommended by the Board of Directors or, if no recommendation is given, in their own discretion.
In the election of directors, you may vote “FOR” all of the nominees or you may vote “WITHHOLD AUTHORITY” with respect to one or more of the nominees. For the approval of the amendment to the Extended and Restated 1996 Employee Stock Purchase Plan and the ratification of the appointment of Deloitte & Touche LLP, you may vote “FOR��, “AGAINST” or “ABSTAIN.” If you “ABSTAIN,” it has the same effect as a vote “AGAINST.” If you sign your proxy card or broker voting instruction card with no further instructions, your shares will be voted in accordance with the recommendations of the Board as described above.
What vote is required to approve each item?
Election of Directors
The affirmative vote of a plurality of the votes cast at the meeting is required for the election of directors. A properly executed proxy marked “WITHHOLD AUTHORITY” with respect to the election of one or more directors will not be voted with respect to the director or directors indicated, although it will be counted for purposes of determining whether there is a quorum. Accordingly, a withheld vote will have the effect of a negative vote.
Other Items
For the approval of the amendment to the Extended and Restated 1996 Employee Stock Purchase Plan and the ratification of the appointment of Deloitte & Touche LLP, the affirmative vote of the holders of a majority of the
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shares represented in person or by proxy and entitled to vote on the item will be required for approval. A properly executed proxy marked “ABSTAIN” with respect to any such matter will not be voted, although it will be counted for purposes of determining whether there is a quorum. Accordingly, an abstention will have the effect of a negative vote. If you hold your shares in street name through a broker or other nominee, your broker or nominee may not be permitted to exercise voting discretion with respect to some of the matters to be acted upon. Thus, if you do not give your broker or nominee specific instructions, your shares may not be voted on those matters and will not be counted in determining the number of shares necessary for approval. Shares represented by such “broker non-votes” will, however, be counted in determining whether there is a quorum.
What does it mean if I receive more than one proxy or voting instruction card?
It means your shares are registered differently or are in more than one account. Please provide voting instructions for all proxy and voting instruction cards you receive.
Where can I find the voting results of the Annual Meeting?
Powerwave will announce preliminary voting results at the Annual Meeting and publish the final results in Powerwave’s Quarterly Report on Form 10-Q for the fiscal quarter ending September 28, 2008.
What happens if additional proposals are presented at the Annual Meeting?
Other than the three proposals described in this Proxy Statement, we do not expect any other matters to be presented for a vote at the Annual Meeting. If you grant a proxy, the persons named as proxy holders, Ronald J. Buschur, Powerwave’s President and Chief Executive Officer, and Kevin T. Michaels, Powerwave’s Chief Financial Officer and Secretary, will have the discretion to vote your shares on any additional matters properly presented for a vote at the Annual Meeting. If for any unforeseen reason any of Powerwave’s nominees are not available as a candidate for director, the persons named as proxy holders will vote your proxy for such other candidate or candidates as may be nominated by the Board.
What is the quorum requirement for the Annual Meeting?
The quorum requirement for holding the Annual Meeting and transacting business is a majority of the outstanding shares entitled to be voted. Based on the number of shares outstanding on the Record Date of 131,392,674, a total of 65,696,338 shares will constitute a quorum for purposes of this Annual Meeting. The shares may be present in person or represented by proxy at the Annual Meeting. Both abstentions and broker non-votes are counted as present for the purpose of determining the presence of a quorum. Broker non-votes, however, are not counted as shares present and entitled to be voted with respect to the matter on which the broker has expressly not voted. Thus, broker non-votes will not affect the outcome of any of the matters being voted on at the Annual Meeting. Generally, broker non-votes occur when shares held by a broker for a beneficial owner are not voted with respect to a particular proposal because the broker has not received voting instructions from the beneficial owner and the broker lacks discretionary voting power to vote such shares. Abstentions are treated as shares present and entitled to vote for purposes of any matter for which a majority of shares present are required for passage and, accordingly will have the same effect as a vote against such matters.
A representative of Computershare Limited, Powerwave’s transfer agent, will tabulate the votes and either a representative of Computershare Limited or an officer of Powerwave will act as the Inspector of Elections.
Proxy instructions, ballots and voting tabulations that identify individual shareholders are handled in a manner that protects your voting privacy. Your vote will not be disclosed either within Powerwave or to third parties except (1) as necessary to meet applicable legal requirements, (2) to allow for the tabulation of votes and certification of the vote, or (3) to facilitate a successful proxy solicitation by the Board. Occasionally, shareholders provide written comments on their proxy card, which are then forwarded to Powerwave’s management.
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Who will bear the cost of soliciting votes for the Annual Meeting?
Powerwave will pay the entire cost of preparing, assembling, printing, mailing and distributing these proxy materials. In addition to the mailing of these proxy materials, the solicitation of proxies or votes may be made in person, by telephone or by electronic communication by our directors, officers, and employees, who will not receive any additional compensation for such solicitation activities. We have retained the services of MacKenzie Partners, Inc. (“MacKenzie”) to aid in the solicitation of proxies from banks, brokers, nominees and intermediaries. We estimate that we will pay MacKenzie a fee of $5,000 for its services, plus out of pocket expenses. We will also reimburse brokerage firms and other persons representing beneficial owners of shares for their expenses in forwarding solicitation material to such beneficial owners.
May I submit a proposal for inclusion in the Proxy Statement for next year’s Annual Meeting of Shareholders or nominate individuals to serve as directors?
Any shareholders desiring to submit a proposal for inclusion in the Proxy Statement for next year’s Annual Meeting of Shareholders to be held in 2009 should arrange for such proposal to be delivered to the Secretary of Powerwave at its principal place of business no later than March 11, 2009 in order to be considered for inclusion in that Proxy Statement. Matters pertaining to such proposals, including the number and length thereof, eligibility of persons entitled to have such proposals included and other aspects are regulated by the Securities and Exchange Act of 1934, Rules and Regulations of the Securities and Exchange Commission (“SEC”) and other laws and regulations, as well as our bylaws, to which interested persons should refer. We currently anticipate that our next Annual Meeting will be held in August 2009. See “What Committees has the Board Established?—Nominating and Corporate Governance Committee” below for a discussion on how to nominate directors.
Under Rule 14a-4 as promulgated under the Securities and Exchange Act of 1934, as amended (“Exchange Act”), Powerwave will be allowed to use its discretionary voting authority when the proposal is raised at any Annual Meeting, without any discussion of the matter in the Proxy Statement for that meeting, in two situations: (i) if a proponent of a proposal fails to notify Powerwave at least 45 days prior to the current year’s anniversary of the date of the mailing of the prior year’s Proxy Statement, or (ii) if the date of the Annual Meeting has changed by more than 30 days from the prior year, if notice is not received within a reasonable period of time before Powerwave mails the Proxy Statement for the current year.
Directions to the Annual Meeting of Shareholders
The Annual Meeting of Shareholders of Powerwave Technologies, Inc. will be held at the offices of Powerwave located at 1801 E. St. Andrew Place, Santa Ana, CA 92705, on August 12, 2008 at 10:00 a.m., Pacific Time. Our offices are located off of the 55 freeway between the 5 and 405 freeways in Orange County. Take the Edinger exit and head west. Turn left on Ritchie and then right on E. St. Andrew Place. Our offices are located on the right hand side of the street. Please park in the visitor parking lot.
Who are the largest owners of Powerwave’s stock?
Based on a review of Schedule 13G filings with the SEC, Powerwave has the following shareholders owning more than 5% of the outstanding shares of Powerwave Common Stock as of June 27, 2008:
Name and Address of Beneficial Owner | Number of Shares Beneficially Owned(1) | Percentage of Shares Outstanding(1) | ||||
FMR LLC 82 Devonshire Street Boston, MA 02109 | 19,640,678 | (2) | 14.9 | % |
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Name and Address of Beneficial Owner | Number of Shares Beneficially Owned(1) | Percentage of Shares Outstanding(1) | ||||
Marc C. Cohodes C/O Copper River Management LP 12 Linden Place Second Floor Red Bank, NJ 07701 | 14,069,077 | (3) | 10.7 | % | ||
Wellington Management Co. LLP 75 State Street Suite 1700 Boston, MA 02109 | 12,951,900 | (4) | 9.9 | % | ||
Artis Capital Management LP Artis Capital Management, Inc. Stuart L. Peterson One Market Plaza Suite 1700 San Francisco, CA 94105 | 16,029,723 | (5) | 12.2 | % | ||
Dimensional Fund Advisors, LLP 1299 Ocean Avenue Santa Monica, CA 90401 | 8,164,779 | (6) | 6.2 | % | ||
S Squared Technology LLC S Squared Capital Management LLC S Squared Technology Partners LP Seymour L Goldblatt Kenneth A. Goldblatt 515 Madison Avenue New York, NY 10022 | 7,921,400 | (7) | 6.0 | % |
(1) | Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. Shares of Common Stock subject to options or warrants currently exercisable, or exercisable within 60 days of June 27, 2008 and shares of Common Stock subject to our outstanding 1.25% convertible notes due July 2008 and our outstanding 1.875% convertible notes due November 2024 and our 3.875% convertible notes due October 2027 currently convertible, or convertible within 60 days of June 27, 2008, are deemed outstanding for computing the percentage of the person holding such options or warrants, or convertible notes, but are not deemed outstanding for computing the percentage of any other person. As of June 27, 2008, the Company had a total of 131,392,674 shares of Common Stock issued and outstanding. Except as indicated by footnote and subject to community property laws where applicable, to the knowledge of the Company, the companies and persons named in this table have sole voting and investment power with respect to all shares of Common Stock shown to be beneficially owned by them. |
(2) | Based on a Schedule 13G dated February 13, 2008 filed with the SEC. The Schedule 13G states that FMR LLC has sole power to vote or direct the vote with respect to 173,100 shares and sole dispositive power with respect to 19,640,678 shares. |
(3) | Based on a Schedule 13G dated May 27, 2008 filed with the SEC. The Schedule 13G states that Mr. Cohodes has sole voting and sole dispositive power with respect to 14,069,077 shares. |
(4) | Based on a Schedule 13G dated February 14, 2008 filed with the SEC. The Schedule 13G states that Wellington Management Company, an investment advisor, has shared voting power with respect to 6,007,600 shares and shared dispositive power with respect to 12,951,900 shares. |
(5) | Based on a Schedule 13G dated March 15, 2008 filed with the SEC. The Schedule 13G states that Artis Capital Management LP, Artis Capital Management, Inc. and Stuart L. Peterson have shared voting and dispositive power with respect to 16,029,723 shares. |
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(6) | Based on a Schedule 13G dated February 6, 2008 filed with the SEC, the Schedule 13G states the Dimension Fund Advisors LLP, an investment advisor, has sole voting and dispositive power with respect to 8,164,779 shares. Dimension Fund Advisors LLP disclaims beneficial ownership of the shares reported in this table. |
(7) | Based on a Schedule 13G dated January 15, 2008 filed with the SEC. The Schedule 13G states that Seymour Goldblatt has sole voting and dispositive power with respect to 7,921,400 shares and that the number reported represents the combined holdings of the named S Squared entities. Mr. Goldblatt disclaims beneficial ownership of any shares held by funds where an S Squared entity serves as an investment advisor. |
How much stock do Powerwave’s directors and executive officers own?
The following table shows the amount of Powerwave Common Stock beneficially owned (unless otherwise indicated) by our directors, the executive officers and all directors and executive officers as a group. Except as otherwise indicated, all information is as of June 27, 2008.
Name and Address of Beneficial Owner(1) | Number of Shares Beneficially Owned(2) | Percentage of Shares Outstanding(2) | ||||
Ronald J. Buschur | 1,274,081 | (3) | * | |||
Kevin T. Michaels | 586,267 | (4) | * | |||
John L. Clendenin | 154,000 | (5) | * | |||
Carl W. Neun | 15,000 | (6) | * | |||
David L. George | 45,625 | (7) | * | |||
Eugene L. Goda | 40,000 | (8) | * | |||
Moiz M. Beguwala | * | * | ||||
Ken J. Bradley | 2,000 | * | ||||
J. Marvin MaGee | 99,461 | (9) | * | |||
Khurram P. Sheikh | 124,200 | (10) | * | |||
All Directors and Executive Officers as a Group (10 persons) | 2,340,634 | (11) | 1.8 | % |
* | Less than 1% |
(1) | Unless otherwise indicated, the business address of each holder is: c/o Powerwave Technologies, Inc., 1801 E. St. Andrew Place, Santa Ana, California 92705. |
(2) | Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. Shares of Common Stock subject to options or warrants currently exercisable, or exercisable within 60 days of June 27, 2008, and shares of Common Stock subject to our outstanding 1.25% convertible notes due July 2008 and our outstanding 1.875% convertible notes due November 2024 and our 3.875% convertible notes due October 2027 currently convertible, or convertible within 60 days of June 27, 2008, are deemed outstanding for computing the percentage of the person holding such options, warrants or convertible notes but are not deemed outstanding for computing the percentage of any other person. As of June 27, 2008, the Company had a total of 131,392,674 shares of Common Stock issued and outstanding. Except as indicated by footnote and subject to community property laws where applicable, to the knowledge of the Company, the companies and persons named in this table have sole voting and investment power with respect to all shares of Common Stock shown to be beneficially owned by them. |
(3) | Includes options exercisable for 995,833 shares within 60 days of June 27, 2008 and 40,000 shares of restricted common stock subject to forfeiture within 60 days of June 27, 2008. |
(4) | Includes options exercisable for 487,500 shares within 60 days of June 27, 2008. |
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(5) | Includes options exercisable for 70,000 shares within 60 days of June 27, 2008. |
(6) | Includes options exercisable for 10,000 shares within 60 days of June 27, 2008. |
(7) | Includes options exercisable for 10,000 shares within 60 days of June 27, 2008. |
(8) | Includes options exercisable for 10,000 shares within 60 days of June 27, 2008. |
(9) | Includes 21,961 shares of restricted stock subject to forfeiture and options exercisable for 77,500 shares within 60 days of June 27, 2008. |
(10) | Includes 75,000 shares of restricted stock subject to forfeiture and options exercisable for 46,250 shares within 60 days of June 27, 2008. |
(11) | Includes options exercisable for 1,707,083 shares within 60 days of June 27, 2008 (see footnotes 3-10). |
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Company’s directors and executive officers, and persons who own more than ten percent of a registered class of the Company’s equity securities, to file reports of ownership with the SEC and Nasdaq. Directors, executive officers and greater than ten percent beneficial owners are required by SEC regulations to furnish the Company with copies of all Section 16(a) reports they file.
To Powerwave’s knowledge, based solely on a review of filings with the SEC and written representations by each director and executive officer that no other reports were required, we believe that all of our directors and executive officers have complied with the reporting requirements of Section 16(a) of the Exchange Act during fiscal 2007.
Proposal 1 – Election of Directors
The current term of office of all of Powerwave’s directors expires at the 2008 Annual Meeting of Shareholders. The Board of Directors proposes that the following nominees be elected until the next Annual Meeting of Shareholders or until their successors are duly elected and qualified. The current number of directors fixed by the bylaws of the Company is seven. Each of the following nominees has consented to serve if elected. If any of them becomes unavailable to serve as a director, the Board may designate a substitute nominee. In that case, the persons named as proxies will vote for the substitute nominee designated by the Board.
The nominees for directors are:
Moiz M. Beguwala,62, has been a member of Powerwave’s Board of Directors since December 2007. Mr. Beguwala serves on the Board of Directors of Skyworks Solutions, Inc., a wireless semiconductor company, SIRF Technology, a GPS semiconductor solutions company, and RF Nano, a privately held company engaged in research and development activities in carbon nanotubes. Mr. Beguwala was Senior Vice President and General Manager of the Wireless Communications business unit of Conexant Systems, Inc. from January 1999 to June 2002 when he retired from Conexant. Prior to Conexant’s spin-off from Rockwell International Corporation, Mr. Beguwala served as Vice President and General Manager, Wireless Communications Division, Rockwell Semiconductor Systems, Inc. from October 1998 to December 1998; Vice President and General Manager Personal Computing Division, Rockwell Semiconductor Systems, Inc. from January 1998 to October 1998; and Vice President, Worldwide Sales, Rockwell Semiconductor Systems, Inc. from October 1995 to January 1998.
Ken J. Bradley,60, has been a member of Powerwave’s Board of Directors since December 2007. Mr. Bradley has been President of Lytica Inc. since February 2005, a company specializing in supply chain management and product lifecycle planning. From January 2003 through January 2005, Mr. Bradley was the Chief Executive Officer of CoreSim, Inc., a company specializing in advanced systems design analysis. Prior to CoreSim, Mr. Bradley was with Nortel Networks from 1972 to 2002, most recently as Nortel’s Chief Procurement Officer. During his 30-year career at Nortel, Mr. Bradley held several national and international executive positions in supply management, operations management and technology development including Vice President, Supplier Strategy; Senior Managing Director, Guangdong Nortel Communications Joint Venture in China; and Vice President, China Joint Venture Program. Mr. Bradley also serves on the Board of Directors of RadiSys Corporation , SynQor, Inc. and MU Analysis.
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Ronald J. Buschur, 44, became Chief Executive Officer of Powerwave and a member of the Board of Directors in February 2005. Mr. Buschur joined the Company in June 2001 as Chief Operating Officer. In May 2004, Mr. Buschur became President of the Company. Prior to joining the Company, Mr. Buschur held various positions at HMT Technology/Komag, an independent supplier of thin-film disks, including President and Chief Operating Officer from 1999 to 2000, Vice President of Sales, Marketing and Quality Assurance from 1997 to 1999 and Vice President of Quality Assurance from 1994 to 1997. From 1993 to 1994, Mr. Buschur was Director of Quality at Maxtor, a disk drive company. Mr. Buschur held various managerial positions at Digital Equipment Corporation, a computer manufacturer from 1987 to 1993.
John L. Clendenin, 74, was the Lead Director of Powerwave from February 2005 to October 2007. Mr. Clendenin was non-executive Chairman of the Board of Directors of Powerwave from January 3, 1999 to February 2005 and has been a member of the Board of Directors since May 1998. Mr. Clendenin is a Chairman Emeritus of BellSouth Corporation, a telecommunications holding company. He served as Chairman of the Board of BellSouth until December 31, 1997 and as President and Chief Executive Officer from 1984 until his retirement at the end of 1996. Prior to BellSouth, Mr. Clendenin was President of Southern Bell from April 1981 to December 1983. He also serves on the Board of Directors of Acuity Brands, Inc., and has recently retired from the Boards of Equifax, Inc., The Kroger Company and The Home Depot, Inc.
David L. George, 54, has been a member of Powerwave’s Board of Directors since November 1995. Since August 2007, he has been President of Prime Radio Products, a manufacturer of commercial radio accessories for Public Safety equipment. From January 2005 to August 2007, he served as Executive Vice President Operations of the Land Mobile Division of Vertex Standard Inc., a company that designs, manufactures and sells communications equipment for commercial land mobile, amateur radio and general aviation applications. From April 2002 to June 2004, Mr. George served as Chief Operating Officer, Chief Technical Officer and President of the Wireless Communications Division of Bizcom U.S.A., Inc., a public company specializing in emergency management software solutions and wireless communications systems. Prior to joining Bizcom, Mr. George was in private practice providing consulting services to participants in the wireless industry. From June 2000 to June 2001, he was Executive Vice President of Operations for Securicor Wireless, Inc., a large mobile radio network provider. Mr. George was the co-founder and served as Executive Vice President and Chief Technical Officer of ComSpace Corporation, formerly known as Unique Technologies, International, L.L.C., a wireless technology development company from February 1994 to June 2000. From November 1983 to February 1994, Mr. George served as Vice President, Director of Operations, Commercial Communications Division of Uniden America. A member of the Institute of Electrical and Electronic Engineers for more than 22 years, he holds several patents relating to wireless technology and networks.
Eugene L. Goda, 72, has been a member of Powerwave’s Board of Directors since November 1995. From June 1997 to March 2000, Mr. Goda served as Chairman of the Board, President and Chief Executive Officer of Objectshare Inc., a software company. From October 1991 to October 1995, Mr. Goda served as Chief Executive Officer of Simulation Sciences, Inc., a software company. From July 1989 to September 1991, he served as Chief Executive Officer of Meridian Software Systems.
Carl W. Neun, 64, has been a member of Powerwave’s Board of Directors since February 2000, and was appointed as Chairman of the Board of Directors of Powerwave in October 2007. From 1993 to January 2000, Mr. Neun was Senior Vice President and Chief Financial Officer of Tektronix, Inc. From 1987 to 1993, he was Senior Vice President of Administration and Chief Financial Officer of Conner Peripherals, Inc. Mr. Neun was Chairman of Oregon Steel Mills, Inc. until it was acquired in January 2007. He also serves on the Board of Directors of Planar Systems, Inc. and RadiSys Corporation.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE
ELECTION OF EACH OF THE NOMINEES NAMED ABOVE.
How were directors compensated?
Under our Corporate Governance Guidelines, non-employee director compensation is determined annually by the Board of Directors acting upon the recommendation of the Compensation Committee. Directors who are also employees of Powerwave receive no additional compensation for service as a director. The following table shows compensation for non-employee directors for fiscal 2007:
Annual director retainer | $ | 30,000 | |
Annual chairman retainer | $ | 50,000 | |
Annual audit committee chair(1) | $ | 5,000 | |
Annual committee chair(2) | $ | 2,500 | |
Annual stock option grant | 10,000 shares | ||
Board meeting fees(3) | $ | 1,500 | |
Committee meeting fees(4) | $ | 1,000 |
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(1) | This is in addition to the committee meeting fees. |
(2) | This is for the Compensation Committee and Corporate Governance and Nominating Committee Chairs. This is in addition to the committee meeting fees. |
(3) | This is paid for each Board meeting attended, including phone meetings where resolutions were taken. |
(4) | This is paid for each Committee meeting attended, including phone meetings where resolutions were taken. |
The Company does not provide retirement benefits to non-employee directors under any current program.
Stock Options
Our 1996 Director Stock Option Plan (the “Director Plan”), as amended, provides that a total of 1,200,000 shares of the Company’s Common Stock are reserved for issuance under the plan. The Director Plan provides that each member of Powerwave’s Board of Directors who is not an employee or paid consultant of Powerwave will automatically be eligible to receive non-statutory options to purchase common stock under the Director Plan. Each director elected after December 5, 1996, will be granted an initial option under the Director Plan covering 30,000 shares of Common Stock, that shall vest at the rate of 25% on the first anniversary of the grant date and the remaining 75% shall vest in equal monthly installments over the following three years. Furthermore, on each anniversary date of December 5, each director who has been an eligible participant under the Director Plan for at least six (6) months shall be granted an annual option under the Director Plan to purchase 10,000 shares of Common Stock that vest 100% on the fourth anniversary date of the grant. The Director Plan provides that the exercise price per share of grants issued under the Director Plan shall be equal to 100% of the fair market value of a share of Common Stock on the grant date. All options expire no later than five years after the grant date. As of December 30, 2007, a total of 208,125 options had been exercised under the Director Plan. There were 280,000 options outstanding under the Director Plan as of December 30, 2007 at a weighted average exercise price of $7.10 per share. There were 711,875 shares available for grant under the Director Plan at December 30, 2007.
On December 5, 2007, Messrs. Clendenin, George, Goda, and Neun were each granted an option to purchase 10,000 shares of Common Stock at an exercise price of $4.03 per share under the Director Plan in connection with their annual membership on the Board. On December 6, 2007, Messrs. Beguwala and Bradley were each granted an option to purchase 30,000 shares of common stock at an exercise price of $4.42 per share under the Director Plan in connection with their joining the Board of Directors.
For additional information regarding Director compensation, see the Independent Director Compensation table included in “Executive Compensation.”
Meetings of the Board of Directors and Meeting Attendance
During the fiscal year ended December 30, 2007, the Board of Directors held eight meetings. Each director attended at least 75% of all meetings of the Board of Directors and 100% of all committee meetings on which that director served.
Six of the seven board members as of December 30, 2007 attended the 2007 Annual Meeting.
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Corporate Governance Policies and Practices
The following is a summary of our corporate governance policies and practices:
• | All members of the Board of Directors are independent directors, as defined by Nasdaq, excluding the Chief Executive Officer. Independent directors do not receive consulting, legal or other fees from Powerwave other than Board of Directors and Committee compensation. |
• | The independent directors of the Board of Directors meet regularly without the presence of management. |
• | All of our employees, officers and directors are subject to our Code of Business Conduct and Ethics Policy. The ethics policy meets the requirements of Nasdaq, as well as the code of ethics requirements of the SEC. |
• | Directors stand for reelection every year. |
• | The Board of Director’s current policy is to separate the roles of Chairman of the Board and Chief Executive Officer. |
• | The Audit, Compensation and Nominating and Corporate Governance Committees consist entirely of independent directors. |
• | At least annually, the Board of Directors review our business initiatives, capital projects and budget matters. |
• | The Audit Committee reviews and approves all related-party transactions, if any. |
• | As part of our Code of Business Conduct and Ethics Policy, we have made a “whistleblower” hotline available to all employees for anonymous reporting of financial or other concerns. The Audit Committee receives directly, without management participation, all hotline activity reports, including complaints on accounting, internal controls or auditing matters. |
We have adopted a “code of ethics” as defined in Item 406(b) of SEC Regulation S-K that applies to all our employees, including our principal executive officer, principal financial officer and principal accounting officer. This code of ethics is designed to comply with the Nasdaq marketplace rules related to codes of conduct. A copy of our Code of Business Conduct and Ethics Policy is attached as Exhibit 14 to Powerwave’s Form 10-K for the year ended December 28, 2003 that was filed with the SEC on February 13, 2004. A copy of our Code of Business Conduct and Ethics Policy is also posted on our website atwww.powerwave.com and is available upon written request to the secretary of Powerwave.
How do the shareholders communicate with the Company’s Board of Directors?
Our Board of Directors has adopted a formal process by which shareholders may communicate with members of the Board. Shareholders who wish to communicate with the Board may do so by e-mailing comments to boardofdirectors@pwav.com or by sending written communications addressed to:
Board of Directors
Powerwave Technologies, Inc.
1801 E. St. Andrew Place
Santa Ana, California 92705
All communications will be compiled by the Secretary of Powerwave and submitted to the Board or the individual directors on a periodic basis.
Does Powerwave have Independent Directors?
The board of directors, assisted by the Nominating and Corporate Governance Committee, annually assesses the independence status of directors for purposes of Board and Committee memberships. Our corporate governance policies and practices provide that the Audit and Compensation Committees shall be comprised of entirely independent directors, as defined by Nasdaq guidelines. All members of the board of directors are independent
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directors, as defined under Nasdaq guidelines, except Ronald J. Buschur, the Company’s Chief Executive Officer and President. All members of the Company’s Audit, Compensation and Nominating and Corporate Governance Committees are independent as defined by Nasdaq guidelines.
What committees has the Board established?
The Board of Directors has standing Audit, Compensation, and Nominating and Corporate Governance Committees. The following table displays the membership of the various committees. All committee members served for the entire year.
Board Committee Membership(1) | ||||||
Name | Audit Committee | Compensation Committee | Nominating and Corporate Governance Committee | |||
Moiz M. Beguwala | — | ü | ü | |||
Ken J. Bradley | ü | — | ü | |||
Ronald J. Buschur | — | — | — | |||
John L. Clendenin | ü | — | ü | |||
David L. George | — | ü | ü | |||
Eugene L. Goda | — | C | ü | |||
Carl W. Neun | C* | — | ü |
C | Committee Chairman |
ü | Member |
* | Audit Committee Financial Expert |
(1) | As of July 1, 2008. |
Audit Committee and Audit Committee Financial Expert
We have a standing Audit Committee and the current members of this committee are Ken J. Bradley, John L. Clendenin, and Carl W. Neun, all of whom are independent under both Section 10A of the Exchange Act and under the Nasdaq marketplace rules. The Audit Committee operates pursuant to a written charter. A copy of our Audit Committee charter is posted on our website atwww.powerwave.com. Powerwave’s Board of Directors has determined that Carl W. Neun is an audit committee financial expert as such term is defined in Item 401(d) of SEC Regulation S-K. For Mr. Neun’s relevant experience, see his biography listed in “Directors” above. For additional information about the Audit Committee, see “Report of the Audit Committee” below.
Compensation Committee
We have a Compensation Committee and the current members of the Compensation Committee are Moiz M. Beguwala, David L. George, and Eugene L. Goda, all of whom are independent under both Section 10A of the Exchange Act and under the Nasdaq marketplace rules. The primary responsibility of the Compensation Committee is to set the compensation of the Chief Executive Officer and to set the compensation of other executive officers of Powerwave based upon the recommendation of the Chief Executive Officer. The Compensation Committee also reviews management organization, development and significant employee benefit programs. The Compensation Committee operates pursuant to a written charter. A copy of our Compensation Committee charter is posted on our website atwww.powerwave.com. For additional information about the Compensation Committee, see “Executive Compensation” and “Report of the Compensation Committee on Executive Compensation” below. During fiscal year 2007, the Compensation Committee held seven meetings.
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Nominating and Corporate Governance Committee
We have a Nominating and Corporate Governance Committee that operates pursuant to a written charter and has the exclusive right to recommend candidates for election as directors to the Board. A copy of our Nominating and Corporate Governance Committee Charter is posted on our website at www.powerwave.com.
The current members of the Nominating and Corporate Governance Committee are Moiz M. Beguwala, Ken J. Bradley, John L. Clendenin, David L. George, Eugene L. Goda, and Carl W. Neun, all of whom are independent directors under both Section 10A of the Exchange Act and under the Nasdaq marketplace rules. The primary purposes of the Nominating and Corporate Governance Committee are assisting the Board by identifying and recommending individuals qualified to become Board members and serve as committee members, recommending to the Board corporate governance guidelines and leading the Board in reviewing the effectiveness of its structure and composition. During fiscal year 2007, the Nominating and Corporate Governance Committee held four meetings. The current slate of director nominees were recommended by the Nominating and Corporate Governance Committee.
The Nominating and Corporate Governance Committee believes that candidates for director should have certain minimum qualifications, including being able to read and understand basic financial statements, being over 21 years of age, having business experience, and having high moral character, however the committee retains the right to modify these minimum qualifications from time to time. The Nominating and Corporate Governance Committee’s process for identifying and evaluating nominees is as follows:
• | In the case of incumbent directors whose terms of office are set to expire, the Nominating and Corporate Governance Committee reviews such directors’ overall service to Powerwave during their term, including the number of meetings attended, level of participation, quality of performance, and any transactions of such directors with Powerwave during their term. |
• | In the case of new director candidates, the Nominating and Corporate Governance Committee first determines whether the nominee must be independent for Nasdaq purposes which determination is based upon the Company’s charter and bylaws, applicable securities laws, the rules and regulations of the SEC, the rules of the Nasdaq, and the advice of counsel, if necessary. The Nominating and Corporate Governance Committee then uses its network of contacts to compile a list of potential candidates, but may also engage, if it deems appropriate, a professional search firm. The Nominating and Corporate Governance Committee then meets to discuss and consider such candidates’ qualifications and then chooses a candidate by majority vote. |
In evaluating prospective candidates, the Nominating and Corporate Governance Committee considers the following general factors: (1) character, including the reputation for personal integrity; (2) the ability to work well with others; (3) experience that is of particular relevance to the Company; (4) the ability to devote sufficient time to the affairs of the Company and the responsibilities of a director; and (5) business acumen and judgment.
The Nominating and Corporate Governance Committee will consider director candidates recommended by shareholders. Such recommendations should be sent to the Nominating and Corporate Governance Committee, c/o Corporate Secretary, 1801 E. St. Andrew Place, Santa Ana, California 92705. A recommendation or notice of intention to nominate a director must include the following information for each candidate: (i) name, age, business and residence address; (ii) principal occupation or employment and, if applicable, a description of all arrangements or understandings between the shareholders and such candidate; (iii) the number of shares of Powerwave common stock beneficially owned; and (iv) any other information that is required by law to be disclosed in connection with solicitations of proxies for the election of directors. The notice/recommendation must also include the name and residence address of the person making the recommendation and a representation as to the number of shares held of record by such person. The shareholder must also state if they intend to appear in person or by proxy at the meeting to nominate the person specified in the notice. A shareholder wishing to nominate a candidate for election to the Board at the Annual Meeting of Shareholders must submit the notice of intention to make a nomination not less than 45 days nor more than 90 days prior to the meeting, or if Powerwave gives less than 55 days notice or prior public disclosure of the meeting date, the notice of nomination must be received within 10 business days after the meeting date is announced. The Nominating and Corporate Governance Committee does not intend to alter the manner in which it evaluates candidates, including the minimum criteria set forth above, based upon whether the candidate was recommended by a shareholder.
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Certain Relationships and Transactions with Management and Others
We have entered into indemnification agreements with our directors and certain executive officers. Such agreements require Powerwave to indemnify such individuals to the fullest extent permitted by Delaware law. Since January 1, 2007, there have been no transactions in which Powerwave was or is a participant in which the amount involved for purposes of section 404(a) of Regulation S-K has or will have a direct or indirect material interest and there are currently no such proposed transactions.
Review, Approval or Ratification of Transactions with Related Persons
Our policy with regard to related party transactions is that all material transactions are to be reviewed by the Audit Committee for any possible conflicts of interest. In the event of a potential conflict of interest, the Audit Committee will generally evaluate the transaction in terms of: (i) the benefits to Powerwave; (ii) the impact on a director’s independence in the event the related person is a director, an immediate family member of a director or an entity in which a director is a partner, shareholder or executive officer; (iii) the availability of other sources for comparable products or services; (iv) the terms and conditions of the transaction; and (v) the terms available to unrelated parties or the employees generally. The Audit Committee will then document its findings and conclusion in written minutes.
Powerwave management has overall responsibility for Powerwave’s financial reporting process, including the system of internal controls, as well as the preparation of financial statements in accordance with accounting principles generally accepted in the United States of America. The independent auditors are responsible for performing an independent audit of Powerwave’s consolidated financial statements and issuing an opinion on the conformity of those audited financial statements with accounting principles generally accepted in the United States of America. The independent auditors also review Powerwave’s quarterly condensed consolidated financial statements included on Form 10-Q and advise the Company with regards to accounting principles generally accepted in the United States of America. The Audit Committee assists our Board of Directors in fulfilling its responsibility to oversee management’s conduct of the Company’s accounting and financial reporting process. Such assistance includes oversight by the Audit Committee of the integrity of our financial statements and systems of internal accounting and financial controls, the independent auditors’ qualification, independence and performance, and our programs for compliance with our business conduct and conflict of interest policies as established by management and the Board of Directors. The Audit Committee reports its findings to the Board of Directors.
In addition, subject to ratification by the shareholders, the Audit Committee recommends an independent registered public accounting firm to perform the annual independent audit of Powerwave’s consolidated financial statements and to issue a report thereon; approves the nature of and the fees for both audit and non-audit services provided by the independent auditors prior to the performance of such services; and reviews the scope of work and the reported results of Powerwave’s independent auditors.
The role and responsibilities of the Audit Committee are set forth in a written charter adopted by the Audit Committee and ratified by the Board of Directors. The Audit Committee reviews and reassesses the charter annually and recommends changes to the charter for Board approval. All members of the Audit Committee qualify as an “independent” director as required by and in compliance with the applicable rules of the SEC and in compliance with the current listing standards of Nasdaq.
As part of fulfilling its responsibilities for overseeing management’s conduct of Powerwave’s financial reporting process for fiscal year 2007, the Audit Committee held eight meetings during fiscal 2007. The meetings were designed, among other things, to facilitate and encourage communication among the Audit Committee, management, and Powerwave’s independent registered public accounting firm, Deloitte & Touche LLP and their affiliates. During these meetings, the Audit Committee reviewed and discussed Powerwave’s audited financial statements with management. Additionally, the Audit Committee discussed with Deloitte & Touche the overall scope and plans for its audit, considered various areas of oversight relating to the financial reporting and audit processes that it determined appropriate, and
• | Reviewed and discussed with management and Deloitte & Touche the audited consolidated financial statements contained in Powerwave’s Annual Report on Form 10-K for the year ended December 30, 2007; |
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• | Discussed with Deloitte & Touche the matters required to be discussed under the Statement on Auditing Standards No. 61 (Communications with Audit Committees) relating to the conduct of the audit; |
• | Received written disclosures and the letter from Deloitte & Touche regarding its independence as required by Independence Standards Board Standard No. 1; and |
• | Discussed with Deloitte & Touche the firm’s independence and considered whether the provision of non-audit services by Deloitte & Touche to Powerwave is compatible with maintaining the independence of Deloitte & Touche. |
Based upon the review and discussions described above, the Audit Committee concluded that the independence of Deloitte & Touche was not compromised by the provision of non-audit services to Powerwave during fiscal year 2007. In addition, based upon the review and discussions described above, the Audit Committee also recommended to the Board of Directors that the audited consolidated financial statements be included in Powerwave’s Annual Report on Form 10-K for the fiscal year ended December 30, 2007, for filing with the SEC.
Members of the Audit Committee:
Carl W. Neun, Chairman
Ken J. Bradley
John L. Clendenin
The material in this report is not “soliciting material” and is not deemed filed with the SEC and is not to be incorporated by reference in any filing of Powerwave under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and irrespective of any general incorporation language in any such filing.
The Audit Committee regularly reviews and determines whether specific projects or expenditures with our independent auditors, Deloitte & Touche, potentially affect their independence. The Audit Committee’s policy is to pre-approve all audit and permissible non-audit services provided by Deloitte & Touche. Pre-approval is generally provided by the Audit Committee for up to one year, is detailed as to the particular service or category of services to be rendered, and is generally subject to a specific budget. The Audit Committee may also pre-approve additional services or specific engagements on a case-by-case basis. Management is required to provide quarterly updates to the Audit Committee regarding the extent of any services provided in accordance with this pre-approval, as well as the cumulative fees for all non-audit services incurred to date.
The following table sets forth the aggregate fees billed to us by Deloitte & Touche for the fiscal years ended December 30, 2007 and December 31, 2006:
Fiscal Years Ended | ||||||
December 31, 2006 | December 30, 2007 | |||||
Audit Fees(1) | ||||||
Audits of financial statements and statutory accounts | $ | 1,111,288 | $ | 1,160,764 | ||
Audit of internal controls over financial reporting | 620,799 | 680,750 | ||||
Total audit fees | 1,732,087 | 1,841,514 | ||||
Audit-Related Fees(2) | ||||||
Registration statements | 18,200 | 117,602 | ||||
Total audit-related fees | 18,200 | 117,602 | ||||
Tax Fees(3) | ||||||
Tax compliance | 142,687 | 633,210 | ||||
Other tax consulting | 33,608 | 119,081 | ||||
Total tax fees | 176,295 | 752,291 | ||||
Total Fees | $ | 1,926,582 | $ | 2,711,407 | ||
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(1) | Includes fees for professional services rendered for the audit of Powerwave’s annual financial statements and review of Powerwave’s annual report on Form 10-K for the fiscal years 2007 and 2006, for the audit of Powerwave’s internal controls over financial reporting for fiscal years 2007 and 2006, and reviews of the financial statements included in Powerwave’s quarterly reports on Form 10-Q for the first three quarters of fiscal 2007 and 2006. |
(2) | Includes fees for professional services rendered in fiscal 2007 in connection with the offering memorandum related to our $130,000,000 Subordinated Notes due 2027, and for 2006, in connection with statutory or regulatory filings and SEC registration statements, primarily related to our acquisitions of Filtronic Wireless and REMEC Wireless. |
(3) | Includes fees for professional services rendered in fiscal 2007 and 2006, in connection with tax compliance (including U.S. federal and international returns) and tax consulting. |
Compensation Discussion and Analysis
Philosophy and Overview of Compensation
The Compensation Committee of the Board is responsible for establishing Powerwave’s compensation philosophy and policies applicable to executive officers. Our executive compensation philosophy is designed to:
• | Attract, motivate and retain talented executives needed to optimize shareholder value; |
• | Align the financial interests of our executive officers with those of our shareholders; and |
• | Provide objective, measurable performance criteria on which to base annual compensation. |
We believe that attracting and retaining human talent is a critical element of our ability to achieve our strategic goals. The labor markets in which we compete for human talent, nationally and locally, are very competitive and to be successful we believe we need to offer compensation programs that are competitive with other telecommunications and technology companies that are competing for the same talent. In addition, our executive compensation programs are based on the belief that the interests of our executives should be closely aligned with our shareholders. In support of this belief, a meaningful portion of each executive’s compensation is placed at-risk and is linked to the accomplishment of specific results that are expected to lead to the creation of value for our shareholders from both a short-term and long-term perspective.
Role of the Compensation Committee, Management Involvement in Compensation Decisions
The Compensation Committee has the responsibility of making recommendations to the Board of Directors relating to compensation for our executive officers. In formulating its recommendations to the Board of Directors, the Compensation Committee reviews a variety of sources of information.
The annual compensation process for non-executive employees usually begins in the beginning of the fourth quarter with a presentation by management to the Compensation Committee of a preliminary review of current trends in compensation and identification of potential issues regarding the components of compensation. As part of this process, the human resources department consults with several independent compensation surveys, such as Radford and Hewitt’s Global Salary Planning Reports regarding market pay practices in the geographic areas where Powerwave has employees. Prior to the end of the fourth quarter, generally in November or December, the Compensation Committee establishes a salary increase budget and percentage increase guidelines for Powerwave’s non-executive employees for the upcoming year.
Following the formal performance review process for all employees and executive officers of Powerwave, which occurs in the fourth and first quarters of the year, the human resources department provides the Compensation Committee with survey and benchmarking data on market compensation levels for the executive officers. The
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surveys used include the Radford Executive Overall Practices Report, the Towers Perrin Global Salary and Planning Report, the Mercer Compensation Planning Report and the Hewitt Global Salary Planning Report. The surveys are reviewed to compare Powerwave’s compensation levels to market compensation levels, taking into consideration the other companies’ size, the industry, and the individual executive’s level of responsibility. In January or February of each year, the Chief Executive Officer makes recommendations to the Compensation Committee for base salary and bonus adjustments for executives, excluding the Chief Executive Officer. Following a review of the recommendations of management and the comparative survey data, the Compensation Committee, in January or February, then approves annual salary adjustments of each executive officer. The Compensation Committee reviews the Chief Executive Officer’s performance during the prior year versus various financial and subjective performance measures, as well as independent salary and competitive data as described above in order to determine any adjustment with regards to the Chief Executive Officer’s base salary and bonus.
The Compensation Committee typically meets four or more times a year. In 2007, the Compensation Committee had seven meetings. The Company’s Chief Executive Officer is typically present at Compensation Committee meetings, except that members of management are not present during deliberations of the Compensation Committee or the Board of Directors with respect to their own individual compensation.
The Compensation Committee has not adopted any formal policy or target for the allocation between either cash and non-cash or short-term and long-term incentive compensation. Rather, the Compensation Committee reviews information from a variety of sources to determine the appropriate level and mix of incentive compensation. While the elements of compensation are considered separately, the Compensation Committee takes into account the total compensation package afforded by the Company to the individual executive.
Elements of Executive Compensation
There are four primary components of executive compensation:
• | base salary; |
• | annual merit increases to base salary; |
• | annual performance-based cash bonuses; and |
• | stock options and stock awards. |
Base Salary
The Company generally sets base salaries that it provides to its named executive officers at the 75th percentile of base salaries offered by similarly situated companies based on an assessment of the survey data described above. However, individual base salaries may vary from such level based on:
• | Industry experience, knowledge and qualifications, including academic and professional degrees; |
• | The salary levels for comparable positions within the telecommunications industry including, in certain cases, the salary being received by an executive officer candidate at such person’s current employer; and |
• | The base salaries being provided to similarly titled executive officers at the Company. |
Annual Merit Increases
Salaries paid to executive officers are reviewed annually and proposed adjustments are based upon an assessment of the nature of the position, the individual’s contribution to corporate goals, experience and tenure of the executive officer, comparable market salary data, growth in Powerwave’s size and complexity, and changes in the executive’s responsibilities. The Compensation Committee approves all changes to executive officers’ salaries. For 2007, the executive officers did not receive any increase in their base salaries.
Annual Cash Bonus Plan
It is the Compensation Committees’ objective to have a substantial portion of each executive officer’s compensation contingent upon Powerwave financial performance. In 2007, Powerwave maintained a cash bonus plan for executive officers of the Company which was intended to provide incentives to our executive officers in the form of cash bonus payments for achieving certain objective performance goals based on annual and quarterly revenue and earnings per share targets. In 2007, there was a revenue and an earnings per share target for each
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quarter and a revenue and earnings per share target for the entire fiscal year. The performance targets were established at the beginning of a fiscal year on the basis of an annual budget and are approved by the Compensation Committee of the Board of Directors. The performance targets were the same targets that were used in a 2007 bonus plan for non-executive officer employees. Each executive officer has an annual target bonus amount that is based on a percentage of his or her base salary. The annual target bonus amounts for our executives for 2007 were as follows:
Name | Percentage of Base Salary | ||
Ronald J. Buschur | 100 | % | |
Kevin T. Michaels | 90 | % | |
J. Marvin MaGee | 80 | % | |
Khurram P. Shiekh | 80 | % |
If both the revenue and earnings per share targets are fulfilled for a quarter of fiscal 2007, each executive officer would receive up to 20% of his or her annual target bonus amount. In addition, an executive officer would receive an additional 20% of the annual target bonus amount if the full fiscal year revenue and earnings per share targets are met. In 2007, Powerwave did not meet any of its quarterly or annual performance targets and no bonuses were paid to any of our executive officers.
Stock Options and Stock Awards
The Compensation Committee believes that equity ownership in Powerwave is important to tie the ultimate level of an executive officer’s compensation to the performance of Powerwave’s common stock and shareholder gains while creating an incentive for sustained growth. Stock option grant and stock award levels are determined based on market data and vary among participants based on their position with Powerwave. Annual stock option grants and stock awards are approved by the Compensation Committee at its regularly scheduled meeting in August/September of each year. The Compensation Committee reviews each year to determine if annual grants or stock awards will be made based on a review of competitive market pressures and compensation levels. The Compensation Committee may decide to not grant stock options or make stock awards in any particular year. The objectives behind annual stock option awards and stock grants are incentives for future performance, the strategic value to Powerwave of the individual and for retention purposes. Stock options have an exercise price equal to the closing price of Powerwave’s common stock on the date of Compensation Committee approval of the grant. Options generally vest 25% 12 months following the grant date with the remaining 75% vesting over the next 36 months. Vesting ceases on termination of employment. Newly hired or promoted executives receive their award of stock options on their first day of employment with Powerwave, in the case of a new hire or on the date the Board of Directors or Compensation Committee approved their promotion.
In August 2007, Powerwave granted Kevin T. Michaels, Chief Financial Officer, an option to purchase 120,000 shares of common stock. The option was based on the closing price of Powerwave’s common stock on the date of Compensation Committee approval of the grant and the option is subject to time based vesting over a 4-year period. Also in August 2007, Powerwave granted Marvin MaGee, Chief Operating Officer an option to purchase 60,000 shares of common stock. This option was based on the closing price of Powerwave’s common stock on the date of Compensation Committee approval of the option grant and is subject to time based vesting over a 4 year period. The grants were designed to further align the interests of the executives with our stockholders and to provide incentive to the executives to manage Powerwave and continue to work on the integration of recently completed acquisitions and the Company’s cost cutting initiatives. The Compensation Committee also viewed Mr. Michaels’ grant as a retention device and reviewed the status of vesting, the number of vested options versus unvested options as well as the option exercise price for prior grants to Mr. Michaels.
In addition, Powerwave granted Marvin MaGee an option to purchase 200,000 shares of common stock and Khurram P. Sheikh an option to purchase 185,000 shares of common stock in May and August 2007 respectively, when they both joined Powerwave. The option grants were based on the closing price of Powerwave’s common stock on the start date of employment for Mr. MaGee and Mr. Sheikh, respectively, and both options are subject to time vesting over a 4-year period. Also, Mr. Sheikh was awarded 75,000 shares of restricted stock when he joined the Company in August 2007. The shares of common stock are subject to a risk of forfeiture which lapses over a 4-year period provided Mr. Sheikh remains an employee of Powerwave. The above option grants and restricted stock
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award were designed to entice Mr. MaGee and Mr. Sheikh to join Powerwave and were negotiated as part of their offer letters. The Compensation Committee reviewed third party benchmarking reports to arrive at competitive compensation packages for Mr. MaGee and Mr. Sheikh.
The Chief Executive Officer and the Chief Financial Officer of Powerwave comprise the members of the Company’s Option Committee, and are empowered by the Board of Directors and the Compensation Committee to grant options to employees of the Company below the level of Senior Vice President up to a maximum grant amount of 45,000 shares per employee. All grants for employees of the Company in excess of this amount are submitted to the Compensation Committee or the Board of Directors for approval.
Other Elements of Executive Compensation
Medical Insurance. Powerwave provides to each executive officer, such health, dental and vision insurance coverage as Powerwave may from time to time make available to its other employees. Powerwave pays all of the premiums for this insurance for its executive officers.
Stock Purchase Plan. Powerwave’s Extended and Restated 1996 Employee Stock Purchase Plan (the “ESPP”), which qualifies under Section 423 of the Internal Revenue Code, permits participants, including executive officers to purchase Powerwave stock on favorable terms. ESPP participants are granted a purchase right to acquire shares of common stock at a price that is 85% of the stock price on either the first day of the six month period or the stock price on the last day of the six month period, whichever is lower. The purchase dates occur on the last business days of July and January each year. To pay for the shares, each participant may authorize periodic payroll deductions from 1% to 20% of his or her cash compensation, subject to certain limitations imposed by the Internal Revenue Code. All payroll deductions collected from the participant in a six month period are automatically applied to the purchase of common stock on that period’s purchase date provided the participant remains an eligible employee and has not withdrawn from the ESPP prior to that date.
Savings Plan. Powerwave maintains a savings plan under Section 401(k) of the Internal Revenue Code. The savings or 401(k) Plan is a tax qualified savings plan under which all employees, including executive officers, are able to contribute the lesser of up to 100% of their annual salary or the limit set by the IRS. Powerwave matches 100% of the first 6% of pay that is contributed by a participant. All contributions to the Savings Plan, as well as any matching contributions are fully vested on contribution.
Termination or Change in Control Compensation.Powerwave does not have employment agreements with any of its executive officers. Powerwave has entered into Change of Control Agreements and Severance Agreements with Ronald J. Buschur and Kevin T. Michaels and Change of Control Agreements with Marvin MaGee and Khurram P. Sheikh. These agreements are intended to promote stability and continuity of senior management. Information regarding the applicable payments under such agreements is provided under the heading “Potential Payments on Termination or Change in Control.”
Tax and Accounting Implications
Deductibility of Executive Compensation
The Compensation Committee has reviewed Powerwave’s executive compensation plans to determine if revisions may be necessary due to the provisions of Section 162(m) of the Internal Revenue Code which generally disallows a tax deduction to public corporations for compensation paid to any of the corporation’s executive officers in excess of $1,000,000 during any fiscal year. It is the current policy of the Compensation Committee to preserve, to the extent reasonably possible, Powerwave’s ability to obtain a corporate tax deduction for compensation paid to executive officers of Powerwave to the extent consistent with the best interests of Powerwave and its shareholders. The Compensation Committee continually reviews Powerwave’s existing executive compensation plans and will propose changes, if necessary and reasonable, to ensure compliance with the provisions of Section 162(m) which allow performance-based compensation to be excluded from the deduction limits.
Tax Penalties
We believe that executives will not be subject to any tax penalties under Internal Revenue Code Section 409A as a result of participating in any of our compensation programs or agreements.
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Accounting for Stock-Based Compensation
On January 2, 2006, we began accounting for stock-based compensation in accordance with the requirements of Statement of Financial Accounting Standards No. 123 (revised 2004), “Share-Based Payment” (or SFAS 123R). In determining stock-based awards in fiscal year 2006, the Compensation Committee of Powerwave’s Board of Directors generally considered the potential expense of these programs recorded in accordance with SFAS 123R. The Committee concluded that the awards were in the best interests of stockholders given competitive practices in our industry and among our peer companies, the awards’ potential expense, the Company’s performance, and the impact of the awards on employee motivation and retention.
The Compensation Committee has reviewed and discussed with management the foregoing Compensation Discussion and Analysis as required by Item 402(b) of Regulation S-K. Based on such review and discussions, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in this Proxy Statement.
Compensation Committee:
Eugene L. Goda, Chairman
Moiz M. Beguwala
David L. George
The material in this report is not “soliciting material” and is not deemed filed with the SEC and is not to be incorporated by reference in any filing of Powerwave under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and irrespective of any general incorporation language in any such filing.
Compensation Committee Interlocks and Insider Participation in Compensation Decisions
During fiscal 2007, all of the members of the Compensation Committee consisted of independent directors and none of the members of the Compensation Committee either was or previously had been an officer or employee of the Company or any of its subsidiaries or otherwise had a relationship with the Company requiring disclosure under Items 404 or 407(e)(4)(iii) of Regulation S-K.
We currently have four executive officers elected to serve on an annual basis by the Board of Directors. The following summary sets forth certain information regarding Powerwave’s executive officers.
Ronald J. Buschur, 44, became Chief Executive Officer of Powerwave and a member of the Board of Directors in February 2005. Mr. Buschur joined the Company in June 2001 as Chief Operating Officer. In May 2004, Mr. Buschur became President of the Company. Prior to joining the Company, Mr. Buschur held various positions at HMT Technology/Komag, an independent supplier of thin-film disks, including President and Chief Operating Officer from 1999 to 2000, Vice President of Sales, Marketing and Quality Assurance from 1997 to 1999 and Vice President of Quality Assurance from 1994 to 1997. From 1993 to 1994, Mr. Buschur was Director of Quality at Maxtor, a disk drive company. Mr. Buschur held various managerial positions at Digital Equipment Corporation, a computer manufacturer from 1987 to 1993.
J. Marvin MaGee, age 55, is presently Chief Operating Officer of Powerwave. Mr. MaGee joined the Company in May 2007 as Senior Vice President, Operations and became Chief Operating Officer in December 2007. Mr. MaGee was employed by Celestica, Inc., a Toronto-based contract manufacturing service provider, from 1997 through 2006, and was Executive Vice President of World Wide Operations from 2005 through 2006 and from 2000 through 2002. Between 2002 and 2005, Mr. MaGee was Chief Operating Officer and President for Celestica. Mr. MaGee also served as Celestica’s Senior Vice President of North American Operations between 1997 and 1999. Prior to joining Celestica, Mr. MaGee was employed by IBM for 18 years in various management roles in Canada and the United States.
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Kevin T. Michaels,49, is presently the Chief Financial Officer and Secretary of Powerwave. Mr. Michaels joined the Company in June 1996 as Vice President, Finance and Chief Financial Officer and was appointed Secretary in June 1996. Mr. Michaels was named Senior Vice President, Finance in February 2000. Prior to joining the Company, Mr. Michaels worked for AST Research, Inc. for eight years, most recently as Vice President, Treasurer from October 1995 to June 1996. From July 1991 to October 1995, Mr. Michaels was Treasurer of AST Research, Inc. and from June 1988 to June 1991, he was Assistant Treasurer.
Khurram P. Sheikh, age 36, is presently Chief Product and Development Officer of Powerwave. Mr. Sheikh joined the Company in August 2007 in his current capacity. Mr. Sheikh was employed by Time Warner Cable from August 2005 through August 2007, as Vice President, Wireless Strategy and Development where he was responsible for the cable and media company’s entry into the wireless space. Between 2000 and 2005, Mr. Sheikh was Chief Technology Advisor for various divisions within Sprint where he led the next generation advanced technology efforts for the company. Mr. Sheikh received advanced graduate degrees in Electrical Engineering with specialization in wireless communications from Stanford University in Stanford. He also completed an executive development course in product development from the Harvard Business School.
The following table sets forth summary information concerning the compensation earned during the fiscal year ended December 30, 2007 and the fiscal year ended December 31, 2006 by our principal executive officer, our principal financial officer and our four other most highly compensated executive officers who were serving as executive officers at December 30, 2007, as well as share-based compensation expense recognized by us for such officers during such fiscal year. These officers are referred to in this proxy statement as the “named executive officers.”
Name and Position | Fiscal Year | Salary | Bonus | Stock Awards(1) | Option Awards(2) | Non-Equity Incentive Plan Compensation | Change in Pension Value and Nonqualified Deferred Compensation Earnings | All Other Compensation(3) | Total | ||||||||||||||||||
Ronald J. Buschur | 2007 | $ | 600,158 | $ | — | $ | 1,011,067 | $ | 324,480 | $ | — | $ | — | $ | 23,479 | $ | 1,959,184 | ||||||||||
2006 | 592,788 | — | 1,011,067 | 266,479 | — | — | 26,211 | 1,896,545 | |||||||||||||||||||
Bruce C. Edwards | 2007 | 261,230 | — | — | — | — | — | 27,566 | 288,796 | ||||||||||||||||||
2006 | 257,788 | — | — | 128,576 | — | — | 24,569 | 410,933 | |||||||||||||||||||
Kevin T. Michaels | 2007 | 450,083 | — | — | 280,972 | — | — | 32,261 | 763,316 | ||||||||||||||||||
2006 | 445,192 | — | — | 186,126 | — | — | 29,023 | 660,341 | |||||||||||||||||||
J. Marvin MaGee | 2007 | 462,061 | (5) | — | — | 240,060 | — | — | 89,652 | 791,773 | |||||||||||||||||
2006 | — | — | — | — | — | — | — | — | |||||||||||||||||||
Khurram P. Sheikh | 2007 | 163,515 | — | 48,521 | 110,392 | — | — | 205,416 | 527,844 | ||||||||||||||||||
2006 | — | — | — | — | — | — | — | — |
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(1) | Mr. Sheikh was granted a stock award of 75,000 shares of common stock in 2007. We did not grant any stock awards in 2006. Mr. Buschur was granted a stock award of 200,000 shares of common stock in 2005. The amount reported represents the compensation cost recognized in fiscal 2007 and 2006 related to these stock awards in 2005 and 2007 for financial statement reporting purposes in accordance with SFAS 123R. Assumptions used in the calculation of this amount is included in Note 2 to our consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended December 30, 2007, without giving effect to estimated forfeitures. |
(2) | Amounts in this column reflect only the compensation cost recognized in fiscal 2007 and 2006 for financial statement reporting purposes in accordance with SFAS 123R and may include amounts from awards granted in or prior to 2007 and 2006. These amounts do not represent any cash payments to the named executives. Assumptions used in the calculation of these amounts are included in Note 2 to our consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended December 30, 2007, without giving effect to estimated forfeitures. |
(3) | See separate table below for details of “All Other Compensation.” |
(4) | Mr. Edwards retired from the Company in November 2007. |
(5) | Includes signing bonus of $150,000. |
The following table details the components of “All Other Compensation” summarized in the table above.
Name and Position | Fiscal Year | Insurance Premium Payments (1) | All Other Compensation | ||||||||||||||||||||||||
401(k) Matching Contributions | Pension Contribution | Auto Allowance | Severance Payments | Change of Control Payments | Relocation Payments | Total | |||||||||||||||||||||
Ronald J. Buschur | 2007 | $ | 16,556 | $ | 6,923 | $ | — | $ | — | $ | — | $ | — | $ | — | $ | 23,479 | ||||||||||
2006 | 20,975 | 5,236 | 26,211 | ||||||||||||||||||||||||
Bruce C. Edwards | 2007 | 14,343 | 13,223 | — | — | — | — | — | 27,566 | ||||||||||||||||||
2006 | 13,700 | 10,869 | — | — | — | — | — | 24,569 | |||||||||||||||||||
Kevin T. Michaels | 2007 | 18,761 | 13,500 | — | — | — | — | — | 32,261 | ||||||||||||||||||
2006 | 17,888 | 11,135 | — | — | — | — | — | 29,023 | |||||||||||||||||||
J. Marvin MaGee | 2007 | 4,496 | — | — | — | — | — | 85,156 | (2) | 89,652 | |||||||||||||||||
2006 | — | — | — | — | — | — | — | — | |||||||||||||||||||
Khurram P. Sheikh | 2007 | 5,416 | — | — | — | — | — | 200,000 | (3) | 205,416 | |||||||||||||||||
2006 | — | — | — | — | — | — | — | — |
(1) | Includes both employer and employee insurance premiums that are paid by Powerwave on behalf of the named executive officers. |
(2) | Includes amounts paid by the Company directly to third party vendors and reimbursement of costs incurred by Mr. MaGee in relocating from Toronto, Canada to Southern California. Such amounts include moving expenses, sales commissions on Mr. MaGee’s former residence and temporary housing expenses for Mr. MaGee in Southern California. |
(3) | Represents lump sum payment to Mr. Sheikh to cover relocation costs from New York to Southern California. |
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The following table sets forth, for the fiscal year ended December 30, 2007, certain information regarding grants of plan-based awards to our named executive officers. As of the end of fiscal 2007, none of the named executive officers held any performance based equity or non-equity incentive awards.
Grant Date | Estimated Future Payouts Under Equity Incentive Plan Awards | All Other Stock Awards: Number of Shares of Stock or Units | All Other Option Awards: Number of Securities Underlying Options | Exercise or Base Price of Option Awards | Grant Date Fair Value of Stock and Option Awards(1) | |||||||||||||
Name | Threshold | Target | Maximum | |||||||||||||||
Ronald J. Buschur | — | — | — | — | — | — | $ | — | $ | — | ||||||||
Bruce C. Edwards | — | — | — | — | — | — | — | — | ||||||||||
Kevin T. Michaels | 08/07/07 | — | — | — | — | 120,000 | 6.49 | 322,341 | ||||||||||
J. Marvin MaGee | 05/07/07 | — | — | — | — | 200,000 | 6.69 | 565,931 | ||||||||||
08/07/07 | — | — | — | — | 60,000 | 6.49 | 161,170 | |||||||||||
Khurram P. Sheikh | 08/13/07 | — | — | — | 75,000 | 185,000 | 6.80 | 520,682 |
(1) | The grant date fair value is computed in accordance with SFAS 123R. Assumptions used in the calculation of these amounts are included in Note 2 to our consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended December 30, 2007, without giving effect to estimated forfeitures. |
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Outstanding Equity Awards at Fiscal Year-End
The following table sets forth summary information regarding the outstanding equity awards to our named executive officers as of December 30, 2007:
Option Awards | Stock Awards | ||||||||||||||||||||
Number of Securities Underlying Unexercised Options | Number of Securities Underlying Unexercised Options | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options | Option Exercise Price | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested | Market Value of Shares or Units of Stock That Have Not Vested(1) | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested | |||||||||||||
Name | Exercisable | Un-exercisable | |||||||||||||||||||
Ronald J. Buschur | 400,000 | — | — | $ | 11.81 | 06/25/2011 | 40,000 | $ | 178,400 | — | — | ||||||||||
100,000 | — | — | 5.41 | 08/05/2012 | — | — | — | — | |||||||||||||
200,000 | — | — | 6.57 | 10/17/2013 | — | — | — | — | |||||||||||||
170,833 | 29,167 | (2) | — | 5.01 | 07/21/2014 | — | — | — | — | ||||||||||||
62,500 | 137,500 | (3) | — | 7.47 | 09/12/2016 | — | — | — | — | ||||||||||||
Bruce C. Edwards | 200,000 | — | — | 5.41 | 01/30/2008 | — | — | — | — | ||||||||||||
32,500 | — | — | 7.47 | 01/30/2008 | — | — | — | — | |||||||||||||
Kevin T. Michaels | 109,250 | — | — | 4.58 | 02/10/2008 | — | — | — | — | ||||||||||||
50,000 | — | — | 31.50 | 08/01/2010 | — | — | — | — | |||||||||||||
75,000 | — | — | 5.41 | 08/05/2012 | — | — | — | — | |||||||||||||
75,000 | — | — | 6.57 | 10/17/2013 | — | — | — | — | |||||||||||||
170,833 | 29,167 | (2) | — | 5.01 | 07/21/2014 | — | — | — | — | ||||||||||||
37,500 | 82,500 | (3) | — | 7.47 | 09/12/2016 | — | — | — | — | ||||||||||||
— | 120,000 | (5) | — | 6.49 | 08/07/2017 | — | — | — | — | ||||||||||||
J. Marvin MaGee | — | 200,000 | (4) | — | 6.69 | 05/07/2017 | — | — | — | — | |||||||||||
— | 60,000 | (5) | — | 6.49 | 08/07/2017 | — | — | — | — | ||||||||||||
Khurram P. Sheikh | — | 185,000 | (6) | — | 6.80 | 08/13/2017 | 75,000 | 334,500 | — | — |
(1) | Value calculated by multiplying the closing market price of our common stock on December 28, 2007, or $4.46, by the number of shares. |
(2) | The shares underlying this portion of the option vest in equal monthly installments starting July 21, 2005 through July 21, 2008. |
(3) | The shares underlying this portion of the option vest at the rate of 25% on September 12, 2007 and the remaining 75% vests in equal monthly installments so that the option is fully vested on September 12, 2010. |
(4) | The shares underlying this option vest at a rate of 25% on May 7, 2008, and the remaining 75% vests in equal monthly installments so that the option is fully vested on May 7, 2011. |
(5) | The shares underlying this option vest at a rate of 25% on August 7, 2008, and the remaining 75% vests in equal monthly installments so that the option is fully vested on August 7, 2011. |
(6) | The shares underlying this option vest at a rate of 25% on August 13, 2008, and the remaining 75% vests in equal monthly installments so that the option is fully vested on August 13, 2011. |
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Option Exercises and Stock Vested
The following table summarizes the option exercises and vesting of stock awards for each of our named executive officers for the year ended December 30, 2007:
Option Awards | Stock Awards | |||||||||
Name | Number of Shares Acquired on Exercise | Value Realized on Exercise | Number of Shares Acquired on Vesting | Value Realized on Vesting | ||||||
Ronald J. Buschur | — | $ | — | 80,000 | $ | 446,000 | ||||
Bruce C. Edwards | — | — | — | — | ||||||
Kevin T. Michaels | — | — | — | — | ||||||
J. Marvin MaGee | — | — | — | — | ||||||
Khurram P. Sheikh | — | — | — | — |
Potential Payments Upon Termination or Change in Control
We have entered into agreements with several of our named executive officers that provide certain benefits upon the termination of their employment under certain conditions. Those agreements are summarized as follows:
Severance Agreements with Messrs. Buschur and Michaels
Effective August 1, 2003, Powerwave entered into severance agreements with Ronald J. Buschur and Kevin T. Michaels. Mr. Buschurs’ severance agreement provides that if his employment is terminated without “cause” or if he voluntarily resigns for “good reason” (as such terms are defined below), he shall be entitled to (i) a lump-sum payment equal to three times his “total annual compensation;” and (ii) continued group health insurance for a period of thirty-six months. For purposes of this agreement, “total annual compensation” is defined as base salary for the year in which employment terminates plus the greater of Mr. Buschurs’ target bonus for the year in which employment terminates or the actual bonus paid in the prior year. Mr. Michaels executed an identical severance agreement, except that the severance payment amount is two times his total annual compensation, and the period of continued health coverage is twenty-four months.
Change of Control Agreements with Messrs. Buschur and Michaels
Effective August 1, 2003, Powerwave also entered into change of control agreements with Mr. Buschur and Mr. Michaels. Mr. Buschurs’ change in control agreement provides that if in anticipation of, connection with, or within two years following a “change in control,” Mr. Buschurs’ employment is terminated without “cause”, or if Mr. Buschur voluntarily resigns for “good reason”, then Mr. Buschur shall be entitled to (i) a lump-sum payment equal to three times his total annual compensation; (ii) continued health insurance for a period of thirty-six months; and (iii) the immediate vesting of all unvested stock options held by Mr. Buschur. For purposes of this agreement, the term “total annual compensation” has the same definition as provided in the severance agreement. Mr. Michaels executed an identical change in control agreement, except that the lump sum payment is two times his total annual compensation, and the period of continued health insurance coverage is twenty-four months.
Effective May 2007, Powerwave entered into a Change in Control Agreement with Marvin MaGee which provides that if in anticipation of, or within eighteen months following, a “change in control” of Powerwave, Mr. MaGee’s employment is terminated without “cause” or if Mr. MaGee voluntarily resigns with “good reason”, then he shall be entitled to (i) a lump sum payment equal to eighteen months of his then annual salary (ii) continued health coverage for a period of eighteen months; and (iii) outplacement assistance for eighteen months.
Effective August 2007, Powerwave entered into a Change in Control Agreement with Khurram P. Sheikh which provides that if in anticipation of, or within eighteen months following, a “change in control” of Powerwave, Mr. Sheikh’s employment is terminated without “cause” or if Mr. Sheikh voluntarily resigns with “good reason”, then he shall be entitled to (i) a lump sum payment equal to eighteen months of his then annual salary (ii) continued health coverage for a period of eighteen months; and (iii) outplacement assistance for eighteen months.
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For purposes of severance and change of control agreements, “cause” means the continued, unreasonable refusal or omission by the employee to perform any material duties required of him by the Company, if such duties are consistent with duties customary for his position; any material act or omission by the employee involving malfeasance or gross negligence in the performance of his duties to, or material deviation from any of the policies or directives of the Company; conduct on the part of the employee which constitutes the breach of any statutory or common law duty of loyalty to the Company, including the unauthorized disclosure of material confidential information or trade secrets of the Company; or any illegal act by employee which materially and adversely affects the business of the Company or any felony committed by employee, as evidenced by conviction thereof, provided that the Company may suspend the employee with pay while any allegation of such illegal or felonious act is investigated.
The term “good reason” means any of the following, without the employee’s written consent: a reduction by the Company in the employee’s compensation that is not made in connection with an across the board reduction of all the Company’s executive salaries; a reduction by the Company of the employee’s benefits from those he was entitled to immediately prior to the termination of employment or a change in control, whichever occurs first, that is not made in connection with an across the board reduction of all the Company’s benefits; the failure of the Company to obtain an agreement from any successor to the Company, or purchaser of all or substantially all of the Company’s assets, to assume the severance agreement or change in control agreement; the assignment of duties to the employee which reflect a material adverse change in authority, responsibility or status with the Company or any successor; a relocation of the employee to a location more than 30 miles from the location where the employee was regularly assigned to immediately prior to the employee’s termination of employment or a change in control, whichever occurs first; or a failure by the Company to pay any portion of the employee’s compensation within ten (10) days of the date due.
These agreements define “change in control” as the occurrence of any of the following events: (i) the acquisition, directly or indirectly, by any person or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of the beneficial ownership of more than fifty percent of the outstanding securities of Powerwave; (ii) a merger or consolidation in which Powerwave is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which Powerwave in incorporated; (iii) the sale, transfer or other disposition of all or substantially all of the assets of Powerwave; (iv) a complete liquidation or dissolution of Powerwave; or (v) any reverse merger in which Powerwave is the surviving entity but in which securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities are transferred to a person or persons different from the persons holding those securities immediately prior to such merger.
The following table sets forth potential payments payable to our current named executive officers upon termination of employment without cause or termination of employment without cause in connection with a change in control. Powerwave’s Compensation Committee may in its discretion revise, amend or add to the benefits if it deems advisable. The table below reflects amounts payable to our named executive officers assuming a change of control on, and/or their employment was terminated on December 30, 2007.
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Name | Trigger(1) | Salary and Bonus(2) | Continuation of Benefits(3) | Value of Option Acceleration (4) | Value of Restricted Stock Acceleration | Total Value | ||||||||||||
Ronald J. Buschur | Termination without Cause | $ | 3,783,600 | $ | 50,662 | $ | — | $ | — | $ | 3,834,022 | |||||||
Change of Control | 3,783,600 | 50,662 | — | (5) | 178,400 | 4,012,422 | ||||||||||||
Kevin T. Michaels | Termination without Cause | 1,884,207 | 38,273 | — | — | 1,122,731 | ||||||||||||
Change of Control | 1,884,207 | 38,273 | — | (5) | — | 1,122,731 | ||||||||||||
J. Marvin MaGee | Termination without Cause | — | — | — | — | — | ||||||||||||
Change of Control | 468,091 | 6,879 | — | — | 474,970 | |||||||||||||
Khurram P. Sheikh | Termination without Cause | — | — | — | — | — | ||||||||||||
Change of Control | 245,272 | 8,286 | — | 334,500 | 253,558 |
(1) | Messrs. Buschur and Michaels are entitled to the benefits specified in this table if their employment is terminated without cause or if they voluntarily resign for “good reason.” In the case of a “change of control,” Messrs. Buschur and Michaels are entitled to the benefits specified in this table if in anticipation of, in connection with or within two years following a “change of control,” their employment is terminated without cause or if they voluntarily resign for “good reason.” |
(2) | Represents three times annual 2007 salary and target bonus for 2007 in the case of Mr. Buschur. Represents two times annual 2007 salary and target bonus for 2007 for Mr. Michaels. Represents one and one half times salary for Messrs. MaGee and Sheikh. |
(3) | Represents the cost of continuing medical benefits via Cobra for three years in the case of Mr. Buschur and two years in the case of Mr. Michaels. Represents the cost of continuing medical benefits via Cobra for one and one half years for Messrs. MaGee and Sheikh. For purposes of this calculation, expected costs have not been adjusted for any actuarial assumptions related to mortality or increases in costs. |
(4) | Represents the aggregate value of the accelerated vesting of the executive officers’ unvested stock options if their employment is terminated for cause or if they voluntarily resign for “good reason” in connection with, in anticipation of or within two years following a “change of control.” The amounts shown as the value of the accelerated stock options are based on the intrinsic value of the options as of December 30, 2007. This was calculated by multiplying (i) the difference between the fair market value of the options as of December 30, 2007 (based on a closing market price of $4.46 per share on December 28, 2007) and the applicable exercise price by (ii) the assumed number of option shares vesting on an accelerated basis on December 30, 2007. |
(5) | In case of a change of control, if in anticipation of, in connection with, or within two years following a change of control, the employment of Mr. Buscher or Mr. Michaels is terminated without cause or if they voluntarily resign for good reason, then their options would accelerate. At December 30, 2007 their options had no intrinsic value. |
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Independent Director Compensation
The following table sets forth compensation for the fiscal year ended December 30, 2007 for the Company’s independent directors:
Name | Fees Earned or Paid in Cash(1) | Stock Awards | Option Awards (2) | Non-Equity Incentive Plan Compensation | Change in Pension Value and Nonqualified Deferred Compensation Earnings | All Other Compensation | Total | ||||||||||||||
Moiz M. Beguwala | $ | — | $ | — | $ | 2,052 | $ | — | $ | — | $ | — | $ | 2,052 | |||||||
Ken J. Bradley | — | — | 2,052 | — | — | — | 2,052 | ||||||||||||||
John L. Clendenin | 70,000 | — | 36,094 | — | — | — | 106,094 | ||||||||||||||
David L. George | 47,500 | — | 36,094 | — | — | — | 83,594 | ||||||||||||||
Eugene L. Goda | 49,000 | — | 36,094 | — | — | — | 85,094 | ||||||||||||||
Carl W. Neun | 39,250 | — | 36,094 | — | — | — | 90,094 |
(1) | Consists of the annual board retainer, board and committee meeting fees, and committee chair retainers. These amounts do not include amounts paid to independent directors to reimburse them for expenses of travel, lodging and other reasonable out-of-pocket expenses which are related to service on the Company’s Board. |
(2) | Reflects the dollar amount recognized for financial statement reporting purposes for the fiscal year ended December 30, 2007, in accordance with SFAS No. 123R, without giving effect to estimated forfeitures, and thus includes amounts from options granted prior to 2006. Includes stock options for 10,000 shares of common stock that are granted to each independent director annually on December 5. Assumptions used in the calculation of these amounts are included in Note 2 to our consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended December 30, 2007. As of December 30, 2007, each director has the following number of stock options outstanding: |
Mr. Clendenin | 110,000 | |
Mr. George | 50,000 | |
Mr. Goda | 50,000 | |
Mr. Neun | 54,000 | |
Mr. Beguwala | 30,000 | |
Mr. Bradley | 30,000 |
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PROPOSAL 2: APPROVAL OF THE AMENDMENT OF POWERWAVE’S EXTENDED AND RESTATED 1996 EMPLOYEE STOCK PURCHASE PLAN TO INCREASE THE NUMBER OF AUTHORIZED SHARES FROM 390,953 TO 1,890,953.
Powerwave’s shareholders originally approved the Employee Stock Purchase Plan in December 1996 and the plan was extended and restated in December 2007. The 1996 Extended and Restated Employee Stock Purchase Plan is hereafter be referred to as the ESPP. The purpose of the ESPP is to attract and retain employees of Powerwave and its subsidiaries, to promote employee morale and to encourage employee ownership of our Common Stock by permitting employees to purchase shares at a discount through payroll deductions. The ESPP qualifies as an “employee stock purchase plan” under Section 423 of the Internal Revenue Code and is implemented utilizing semi-annual offerings with purchases occurring at six-month intervals. The ESPP permits eligible employees of Powerwave to purchase Powerwave Common Stock through payroll deductions, which may not exceed 20% of an employee’s compensation. The price of Common Stock purchased under the ESPP is 85% of the lower of the fair market value of the Common Stock at the beginning of each six-month offering period or the applicable purchase date.
As of July 1, 2008, there were there were 390,953 shares available for purchase under the ESPP. On May 13, 2008, the Board of Directors approved an amendment to the ESPP to increase the authorized number of shares of Common Stock available for sale thereunder by 1,500,000 shares and to reserve the additional shares for issuance thereunder, bringing the total number of shares of Common Stock subject to the ESPP to 1,890,953. This amendment, which is subject to the approval of the shareholders requested by this Proxy Statement, would have the effect of increasing the current remaining available shares from 390,953 to 1,890,953.
The following is a summary of the principal features of the ESPP. This summary does not purport to be, and should not be construed as, a complete description of all the provisions of the ESPP.
Summary of Extended and Restated 1996 Employee Stock Purchase Plan
Every employee of Powerwave who regularly works more than 20 hours per week and has been employed by Powerwave for at least 90 days at the beginning of an offering period is eligible to participate in the ESPP. Employees of any subsidiary of Powerwave may also participate in the ESPP. An employee may not participate in an offering under the ESPP if immediately after the purchase the employee would own shares or options to purchase shares of stock possessing 5% or more of the total combined voting power of all classes of stock of Powerwave. Executive officers of Powerwave are eligible to participate in the ESPP. Currently, approximately 620 current employees of Powerwave, 100 current employees of Powerwave’s subsidiaries, and four executive officers of Powerwave are eligible to participate in the ESPP.
The administration of the ESPP is overseen by the Board of Directors. The Board of Directors may at any time amend, suspend or terminate the ESPP. However, any amendment that (1) increases the aggregate number of shares authorized for sale under the ESPP (except pursuant to adjustments provided for in the ESPP), (2) materially modifies the requirements as to eligibility for participation, or (3) materially increases the benefits which accrue to participants under the ESPP will not be effective unless approved by the stockholders within twelve months of the adoption of such amendment by the Board of Directors.
If the amendment to the ESPP is adopted by Powerwave’s stockholders, the maximum number of shares authorized for sale shall be increased from 390,953 to 1,890,953. The Common Stock made available for sale under the ESPP may be authorized but unissued shares or reacquired shares reserved for issuance under the ESPP.
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The two annual offerings under the ESPP commence on February 1 and August 1 of each year and each offering continues until the end of the six-month offering period ending on the last day of such period.
Eligible employees who elect to participate in the ESPP purchase shares of Common Stock through regular payroll deductions. Employee contributions are not allowed to exceed 20% of such employee’s bi-weekly compensation at the offering commencement date. For this purpose, “compensation” means the employee’s base salary at the beginning of each offering period. Shares of Common Stock are purchased automatically on the purchase date for each six-month offering period, which is the last day of each offering period, at a price equal to 85% of the fair market value of the shares on the February 1 or August 1 grant date or 85% of the fair market value of the shares as of the January 31 or July 31 purchase date, whichever is lower. A participant may withdraw from an offering at any time prior to the purchase date and receive a refund of their payroll deductions, without interest. In addition, an employee may elect to increase or decrease their payroll deduction amount once during each offering period. An employee’s rights in the ESPP are nontransferable.
No employee may purchase stock in an amount which would permit his or her rights under the ESPP to accrue at a rate which exceeds $25,000 in fair market value, determined as of the grant date, for each calendar year. In addition, no employee may purchase more than 15,000 shares in any offering period.
In the event of an acquisition of Powerwave, whether by merger, consolidation or asset sale, where Powerwave is not the surviving entity and provision is not made for the continuance of the ESPP and either (1) the assumption of rights granted thereunder, or (2) for the substitution of new rights covering the shares of a successor corporation, then concurrent with the effective date of such acquisition, the ESPP shall terminate and all outstanding purchase rights will be automatically exercised as if such effective date were a purchase date of the current offering period.
Changes in Capitalization of Powerwave
In the event that any other change is made to the outstanding shares of Common Stock by reason of any recapitalization, stock dividend, stock split, combination of shares, reclassification of shares or other change in capital structure effected without the Company’s receipt of consideration, appropriate adjustments will be made to the number of shares of Common Stock covered by each right under the ESPP which has been authorized but not issued.
The ESPP shall terminate on July 31, 2017. Since future conditions affecting Powerwave cannot be anticipated or foreseen, Powerwave reserves the right to amend, modify, or terminate the ESPP at any time. Upon termination of the ESPP, all benefits shall become payable immediately. Notwithstanding the foregoing, no such amendment or termination shall affect any rights previously granted, nor may an amendment make any change in any right previously granted which adversely affects the rights of any participant. In addition, no amendment may be made without prior approval of the stockholders of Powerwave if such amendment would:
(a) | increase the number of shares of Powerwave Stock that may be issued under the ESPP; |
(b) | materially modify the requirements as to eligibility for participation in the ESPP; or |
(c) | materially increase the benefits which accrue to Participants under the ESPP. |
Share purchases made by employees under the ESPP generally do no result in any charge to Powerwave’s earnings. However, Powerwave discloses in footnotes and pro-forma statements to its consolidated financial statements, the impact that the purchase rights would have had upon the its reported earnings if the value of those purchase rights, determined under the Black-Scholes valuation model, had been treated as compensation at the time of grant. The purchase price of shares purchased in the ESPP is credited to Powerwave’s account at the time of purchase and is reflected in stockholders’ equity on Powerwave’s balance sheet.
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Federal Income Tax Consequences
Generally, no federal income tax consequences will arise at the time an employee purchases Common Stock under the ESPP. If an employee disposes of Common Stock purchased under the ESPP less than one year after the Common Stock is purchased or within two years of the offering date, the employee will be deemed to have received compensation taxable as ordinary income for the taxable year in which the disposition occurs in the amount of the difference between the fair market value of the Common Stock at the time of purchase and the amount paid by the employee for the Common Stock. The amount of such ordinary income recognized by the employee will be added to the employee’s basis in the Common Stock for purposes of determining capital gain or loss upon the disposition of the Common Stock by the employee. If an employee does not dispose of the Common Stock purchased under the ESPP until at least one year after the Common Stock is purchased and at least two years after the offering date, the employee will be deemed to have received compensation taxable as ordinary income for the taxable year in which the disposition occurs in an amount equal to the lesser of (a) the excess of the fair market value of the Common Stock on the date of disposition over the purchase price paid by the employee, or (b) the excess of the fair market value of the Common Stock on the offering date over the purchase price paid by the employee. The amount of such ordinary income recognized by the employee will be added to the employee’s basis in the Common Stock for purposes of determining capital gain or loss upon the disposition of the Common Stock by the employee. If an employee dies before disposing of the Common Stock purchased under the ESPP, he or she will be deemed to have received compensation taxable as ordinary income in the taxable year closing with the employee’s death in an amount equal to the lesser of clauses (a) or (b) as set forth in the first sentence of this paragraph. The employee will not realize any capital gain or loss at death.
The Company generally will not be entitled to a deduction with respect to the Common Stock purchased by an employee under the ESPP, unless the employee disposes of the Common Stock less than one year after the Common Stock is transferred to the employee or less than two years after the offering date.
Since the number of shares purchased under the ESPP by any employee and the purchase price thereof are determined by the level of voluntary contributions by such employee and the market price of the shares in effect from time to time, Powerwave believes that it is unable to determine the number of shares that may be purchased in the future by any eligible participant or single group of employees or the purchase price thereof.
Required Vote and Recommendation of the Board of Directors
Approval of the amendment to the ESPP requires the affirmative vote of the holders of a majority of the shares present in person or represented by proxy and voting at the Annual Meeting. Abstentions are not affirmative votes and, therefore, will have the same effect as votes against this proposal. Broker non-votes will not be considered present and entitled to vote with respect to this proposal, and, accordingly, will have no effect on the passage of this proposal. Proxies solicited by management for which no specific direction is included will be voted “for” the amendment of the ESPP. Should the required stockholder approval not be obtained, the ESPP amendment will not be implemented.
New Plan Benefits
The following table shows the number of common shares purchased during fiscal 2007 and the dollar value of such shares for each of the named executive officers, the executive officers as a group, and for all non-executive employees:
Name | Number of Shares | Dollar Value | |||
Ronald J. Buschur | 0 | 0 | |||
Bruce C. Edwards | 0 | 0 | |||
Kevin T. Michaels | 901 | $ | 4,495.75 |
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Name | Number of Shares | Dollar Value | ||
J. Marvin MaGee | 0 | 0 | ||
Khurram P. Sheikh | 0 | 0 | ||
All Executive Officers as a Group (5 persons) | 901 | 4,495.75 | ||
All non-employee directors | 0 | 0 | ||
All non-executive employees | 252,611 | 1,260,921 |
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR
THE APPROVAL OF THE AMENDMENT TO THE EXTENDED AND RESTATED
1996 EMPLOYEE STOCK PURCHASE PLAN.
PROPOSAL 3 - RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
The Board of Directors, acting upon the recommendation of the Audit Committee, has appointed the independent accounting firm of Deloitte & Touche LLP, certified public accountants, to audit the consolidated financial statements of Powerwave and its subsidiaries for the 2008 fiscal year. Deloitte and Touche LLP has audited the accounts and records of Powerwave and its subsidiaries since 1995. If the shareholders do not ratify the appointment of Deloitte & Touche LLP, the Board will reconsider the appointment of independent public auditors.
Representatives of Deloitte & Touche LLP are expected to be present at the Annual Meeting and will have the opportunity to make a statement if they so desire and will also be available to respond to appropriate questions.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE PROPOSAL
TO RATIFY THE APPOINTMENT OF DELOITTE & TOUCHE LLP AS
INDEPENDENT AUDITORS OF THE COMPANY FOR THE 2008 FISCAL YEAR.
Powerwave’s 2007 Annual Report, including Form 10-K (without exhibits), is being forwarded to each shareholder with this Proxy Statement. The Annual Report is not to be regarded as proxy soliciting material or as a communication by means of which any solicitation is to be made.
Submitted by: |
Kevin T. Michaels |
Chief Financial Officer and Secretary |
Dated: July 3, 2008 |
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EXHIBIT A – AMENDMENT TO THE POWERWAVE TECHNOLOGIES, INC. EXTENDED AND RESTATED 1996 EMPLOYEE STOCK PURCHASE PLAN
Section 10.1 shall be revised to read in full as:
10.1Limitations on Purchase of Shares. The maximum number of shares of Company Stock that shall be made available for sale under the Plan shall be 1,890,953 shares, subject to adjustment under Section 10.4 below. The shares of Company Stock to be sold to Participants under the Plan will be issued by the Company. If the total number of shares of Company Stock that would otherwise be issuable pursuant to rights granted pursuant to Section 6.1 of the Plan at the Purchase Date exceeds the number of shares then available under the Plan, the Company shall make a pro rata allocation of the shares remaining available in as uniform and equitable manner as is practicable. In such event, the Company shall give written notice of such reduction of the number of shares to each participant affected thereby and any unused payroll deductions shall be returned to such participant if necessary.
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C123456789 | ||||||||||
000004 | 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext 000000000.000000 ext | |||||||||
MR A SAMPLE | ||||||||||
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| Electronic Voting Instructions | |||||||||
You can vote by Internet or telephone! Available 24 hours a day, 7 days a week! | ||||||||||
Instead of mailing your proxy, you may choose one of the two voting methods outlined below to vote your proxy. | ||||||||||
VALIDATION DETAILS ARE LOCATED BELOW IN THE TITLE BAR. Proxies submitted by the Internet or telephone must be received by 1:00 a.m., Central Time, on August 12, 2008. | ||||||||||
Vote by Internet • Log on to the Internet and go to www.investorvote.com/tickersymbol • Follow the steps outlined on the secured website. | ||||||||||
|
Vote by telephone | |||||||||
• Call toll free 1-800-652-VOTE (8683) within the United States, Canada & Puerto Rico any time on a touch tone telephone. There isNO CHARGEto you for the call. | ||||||||||
• Follow the instructions provided by the recorded message. | ||||||||||
Using ablack inkpen, mark your votes with anXas shown in this example. Please do not write outside the designated areas. | x |
Annual Meeting Proxy Card |
q IF YOU HAVE NOT VOTED VIA THE INTERNETOR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.q
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A | Proposals — The Board of Directors recommends a voteFOR all the nominees listed andFOR Proposals 2 and 3. |
1. Election of Directors.Authority to elect the seven (7) persons named in the Notice of Annual Meeting of Shareholders dated July 3, 2008, to the Board of Directors to serve until the next Annual Meeting of Shareholders or until their successors are duly elected and qualified. | 01 - Moiz M. Beguwala 04 - John L. Clendenin 07 - Carl W. Neun | 02 - Ken J. Bradley 05 - David L. George | 03 - Ronald J. Buschur 06 - Eugene L. Goda | + |
¨ | Mark here to vote FOR all nominees | ¨ | Mark here toWITHHOLDvote from all nominees | ¨ | For AllEXCEPT - To withhold authority to vote for any nominee(s), write the name(s) of such nominee(s) below. |
For | Against | Abstain | For | Against | Abstain | |||||||||||||
2. | To approve the amendment of Powerwaves’s Extended and Restated 1996 Employee Stock Purchase Plan. To approve the amendment of the Extended and Restated 1996 Employee Stock Purchase Plan, which increases the authorized number of common shares available for sale under the plan from 390,953 to 1,890,953 shares. | ¨ | ¨ | ¨ | 3. | Ratification of Appointment of Independent Auditors. To ratify the appointment of Deloitte & Touche LLP as independent auditors. | ¨ | ¨ | ¨ | |||||||||
In their discretion, the proxies are authorized to transact such other business as may properly come before the meeting or any adjournment or postponment thereof, including procedural and other matters relating to the conduct of the meeting. |
B | Non-Voting Items | |||||
Change of Address— Please print new address below. | Meeting Attendance | |||||
Mark box to the right if you plan to attend the Annual Meeting. | ¨ | |||||
C | Authorized Signatures — This section must be completed for your vote to be counted. — Date and Sign Below |
Please date this Proxy and print and sign your name as it appears on your stock certificate(s). Executors, administrators, trustees, etc. should give their full titles. All joint owners should sign.
Date (mm/dd/yyyy) — Please print date below.
| Signature 1 — Please keep signature within the box.
| Signature 2 — Please keep signature within the box.
| ||||||||||
/ | / |
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q IF YOU HAVE NOT VOTED VIA THE INTERNETOR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.q
|
Proxy — POWERWAVE TECHNOLOGIES, INC.
REVOCABLE PROXY SOLICITED BY THE BOARD OF DIRECTORS
FOR THE ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON AUGUST 12, 2008
The undersigned shareholder(s) of Powerwave Technologies, Inc. (the “Company”) hereby acknowledges receipt of the Notice of Annual Meeting of Shareholders and Proxy Statement, each dated July 3, 2008, and nominates, constitutes and appoints Ronald J. Buschur and Kevin T. Michaels, and each of them, the attorney, agent and proxy of the undersigned, with full power of substitution, to vote all stock of the Company which the undersigned is entitled to vote at the Annual Meeting of Shareholders of the Company to be held at the offices of Powerwave located at 1801 E. St. Andrew Place, Santa Ana, CA 92705, on Tuesday, August 12, 2008 at 10:00 a.m., Pacific Time, and any and all adjournments thereof, as fully with the same force and effect as the undersigned might or could do if personally present thereat, upon and in respect of the matters described below and in accordance with the instructions on the reverse side.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS AND MAY BE REVOKED PRIOR TO ITS EXERCISE.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” PROPOSALS 1, 2 AND 3. THE PROXY CONFERS AUTHORITY TO AND SHALL BE VOTED “FOR” THE ELECTION OF THE SEVEN NOMINEES LISTED BELOW AND “FOR” PROPOSALS 2 AND 3 UNLESS OTHERWISE INDICATED, IN WHICH CASE THE PROXY SHALL BE VOTED IN ACCORDANCE WITH SUCH INSTRUCTIONS.
• | MARK, SIGN AND DATE YOUR PROXY CARD |
• | DETACH YOUR PROXY CARD |
• | RETURN YOUR PROXY CARD IN THE POSTAGE PAID ENVELOPE PROVIDED |