Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
______________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
___________________________
AEROFLEX INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 11-1974412
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
35 South Service Road, Plainview, New York 11803
(Address of principal executive offices) (Zip Code)
AEROFLEX INCORPORATED 1996 STOCK OPTION PLAN
(Full Title of the Plan)
Michael Gorin, President
Aeroflex Incorporated
35 South Service Road
Plainview, New York 11803
(Name and address of agent for service)
(516) 694-6700
(Telephone number, including area code, of agent for service)
______________________
copy to:
Nancy D. Lieberman, Esq.
Blau, Kramer, Wactlar & Lieberman, P.C.
100 Jericho Quadrangle
Jericho, New York 11753
(516) 822-4820
_______________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Minimum Proposed Maximum
Class of Securities Amount to be Offering Price Per Aggregate Offering Amount of
To be Registered Registered Security (1) Price (1) Registration Fee
______________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock,
par value $.10 1,500,000 shs.(2) $7.75 $11,625,000 $3,429 $___
per share
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee, based
upon the last reported sales price of the Company's Common Stock on the New York
Stock Exchange on December 15, 1997.
(2) The Registration Statement also covers an indeterminate number of additional
shares of Common Stock which may become issuable pursuant to anti-dilution and
adjustment provisions of the Plan.
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</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997;
(c) The description of the class of securities to be offered which is
contained in a registration statement filed under Section 12 of
the Securities Exchange Act of 1934 (File No. 1-8037), including
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which indicates that all securities offered
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under the provisions of the Certificate of Incorporation and By-Laws
of Registrant, each person who is or was a director or officer of Registrant
shall be indemnified by Registrant as of right to the full extent permitted or
authorized by the General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the
merits of defense of a suit or proceeding brought against him by reason of the
fact that he is a director or officer of Registrant, he shall be indemnified
against expenses (including attorneys' fees) reasonably incurred in connection
with such action.
If unsuccessful in defense of a third-party civil suit or a criminal
suit is settled, such a person shall be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgments, fines and amounts
paid in settlement if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of Registrant, and with
respect to any criminal action, had no reasonable cause to believe his conduct
was unlawful.
If unsuccessful in defense of a suit brought by or in the right of
Registrant, or if such suit is settled, such a person shall be indemnified under
such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
Registrant except that if such a person is adjudicated to be liable in such suit
II-1
<PAGE>
for negligence or misconduct in the performance of his duty to Registrant, he
cannot be made whole even for expenses unless the court determines that he is
fairly and reasonably entitled to be indemnified for such expenses.
The officers and directors of the Company are covered by officers' and
directors' liability insurance. The policy coverage is $25,000,000 which
includes reimbursement for costs and fees. There is a maximum aggregate
deductible for each loss under the policy of $500,000. The Company has entered
into Indemnification Agreements with certain of its officers and directors. The
Agreements provide for reimbursement for all direct and indirect costs of any
type or nature whatsoever (including attorneys' fees and related disbursements)
actually and reasonably incurred in connection with either the investigation,
defense or appeal of a Proceeding, as defined, including amounts paid in
settlement by or on behalf of an Indemnitee.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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4 1996 Stock Option Plan.
5 Opinion and consent of Blau, Kramer, Wactlar & Lieberman, P.C.
23.1 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. - included in
their opinion filed as Exhibit 5.
23.2 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs
(a)(l)(i) and (a)(l)(ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration
Statement.
II-2
<PAGE>
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against policy as expressed in the Act and will be
governed by final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Plainview, New York on the 15th day of December, 1997.
AEROFLEX INCORPORATED
By: /s/ Michael Gorin
Michael Gorin
President and Director (Chief Financial Officer)
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on December 15, 1997 by the
following persons in the capacities indicated. Each person whose signature
appears below constitutes and appoints Michael Gorin and Leonard Borow, and each
of them acting individually, with full power of substitution, our true and
lawful attorneys-in-fact and agents to do any and all acts and things in our
name and on our behalf in our capacities indicated below which they or either of
them may deem necessary or advisable to enable Aeroflex Incorporated to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement including specifically, but not limited to, power and
authority to sign for us or any of us in our names in the capacities stated
below, any and all amendments (including post-effective amendments) thereto,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
such connection, as fully to all intents and purposes as we might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
Signature Title
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/s/ Harvey R. Blau Chairman of the Board and
Harvey R. Blau (Chief Executive Officer)
/s/ Michael Gorin President and Director
Michael Gorin (Chief Financial Oficer and Principal
Accounting Officer)
/s/ Leonard Borow Executive Vice President, Chief Operating
Leonard Borow Officer, Secretary and Director
/s/ Robert Bradley Director
Robert Bradley, Sr.
/s/ Milton Brenner Director
Milton Brenner
____________________________ Director
Ernest E. Courchene, Jr.
____________________________ Director
Donald S. Jones
____________________________ Director
Eugene Novikoff
____________________________ Director
John S. Patton
II-4
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AEROFLEX INCORPORATED
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Form S-8 Registration Statement
________________________________________________________________________________
E X H I B I T I N D E X
________________________________________________________________________________
<TABLE>
<CAPTION>
Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------- ------------------- -----------------------
<S> <C> <C>
4 1996 Stock Option Plan . . . . . . . . . . . . .
5 Opinion and Consent of Counsel . . . . . . . . .
23.1 Consent of Counsel . . . . . . . . . . . . . . . See Exhibit 5
23.2 Consent of KPMG Peat Marwick LLP . . . . . . . .
24 Powers of Attorney . . . . . . . . . . . . . . . See signature page
</TABLE>
Exhibit 4
Aeroflex Incorporated
1996 Stock Option Plan
----------------------
SECTION 1. GENERAL PROVISIONS
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1.1. Name and General Purpose
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The name of this plan is the Aeroflex Incorporated 1996 Stock Option Plan
(hereinafter called the "Plan"). The purpose of the Plan is to enable Aeroflex
Incorporated (the "Company") and its subsidiaries and affiliates to foster and
promote the interests of the Company by attracting and retaining officers and
employees of the Company who contribute to the Company's success by their
ability, ingenuity and industry, to enable such officers and employees of the
Company to participate in the long-term success and growth of the Company by
giving them a proprietary interest in the Company and to provide incentive
compensation opportunities competitive with those of competing corporations.
1.2 Definitions
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a. "Affiliate" means any person or entity controlled by or under
common control with the Company, by virtue of the ownership of
voting securities, by contract or otherwise.
b. "Board" means the Board of Directors of the Company.
c. "Change in Control" means a change of control of the Company, or
in any person directly or indirectly controlling the Company,
which shall mean:
(a) a change in control as such term is presently defnined in
Regulation 240.12b-(f) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); or
(b) if any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act) other than the Company or any "person"
who on the date of this Agreement is a director or officer of the
Company, becomes the "beneficial owner" (as defined in Rule
13(d)-3 under the Exchange Act) directly or indirectly, of
securities of the Company representing twenty percent (20%) or
more of the voting power of the Company's then outstanding
securities; or
(c) if during any period of two (2) consecutive years during the
term of this Plan, individuals who at the beginning of such
period constitute the Board of Directors, cease for any reason to
constitute at least a majority thereof.
d. "Code" means the Internal Revenue Code of 1986, as amended.
e. "Committee" means the Committee referred to in Section 1.3 of the
Plan.
f. "Common Stock" means shares of the Common Stock, par value $.10
per share, of the Company.
g. "Company" means Aeroflex Incorporated, a corporation organized
under the laws of the State of Delaware (or any successor
corporation).
<PAGE>
h. "Disinterested Person" shall have the meaning set forth in Rule
16b-3(c)(2) as promulgated by the Securities and Exchange
Commission (the "Commission"); provided, that such person is also
an "outside director" as set forth in Section 162(m) of the Code
and the regulations promulgated thereunder.
i. "Fair Market Value" means the market price of the Common Stock on
the New York Stock Exchange consolidated reporting system on the
date of the grant or on any other date on which the Common Stock
is to be valued hereunder. If no sale shall have been reported on
the New York Stock Exchange consolidated reporting system on such
date, Fair Market Value shall be determined by the Committee in
accordance with the Treasury Regulations applicable to incentive
stock options under Section 422 of the Code.
j. "Incentive Stock Option" means an Incentive Stock Option as
described in Section 2.1 of the Plan.
k. "Non-Qualified Stock Option" means a Non-Qualified Stock Option
as described in Section 2.1 of the Plan.
l. "Option" means any option to purchase Common Stock under Section
2 of the plan.
m. "Participant" means any officer or employee of the Company, a
Subsidiary or an Affiliate who is selected by the Committee to
participate in the Plan.
n. "Subsidiary" means any corporation in which the Company possesses
directly or indirectly 50% or more of the combined voting power
of all classes of stock of such corporation.
o. "Total Disability" means accidental bodily injury or sickness
which wholly and continuously disabled an optionee. The
Committee, whose decisions shall be final, shall make a
determination of Total Disability.
1.3 Administration of the Plan
--------------------------
The Plan shall be administered by the Committee appointed by the Board
consisting of two or more members of the Board all of who shall be Disinterested
Persons. The Committee shall serve at the pleasure of the Board and shall have
such powers as the Board may, from time to time, confer upon it.
Subject to this Section 1.3, the Committee shall have sole and complete
authority to adopt, alter, amend or revoke such administrative rules, guidelines
and practices governing the operation of the Plan as it shall, from time to
time, deem advisable, and to interpret the terms and provisions of the Plan.
The Committee shall keep minutes of its meetings and of actions taken by
it without a meeting. A majority of the Committee shall constitute a quorum, and
the acts of a majority of the members present at any meeting at which a quorum
is present, or acts approved in writing by all of the members of the Committee
without a meeting, shall constitute the acts of the Committee.
1.4 Eligibility
-----------
Stock options may be granted only to officers or employees of the
Company or a Subsidiary or Affiliate. Subject to Sections 1.5 and 2.3, any
person who has been granted any Option may, if he is otherwise eligible, be
granted an additional Option or Options.
<PAGE>
1.5 Shares
------
The aggregate number of shares reserved for issuance pursuant to the
Plan shall be 1,500,000 shares of Common Stock, or the number and kind of shares
of stock or other securities which shall be substituted for such shares or to
which such shares shall be adjusted as provided in Section 1.6. No individual
may be granted options to purchase more than an aggregate of 500,000 shares of
Common Stock pursuant to the Plan.
Such number of shares may be set aside out of the authorized but
unissued shares of Common Stock or out of issued shares of Common Stock acquired
for and held in the Treasury of the Company, not reserved for any other purpose.
Shares subject to, but not sold or issued under, any Option terminating or
expiring for any reason prior to its exercise in full will again be available
for Options thereafter granted during the balance of the term of the Plan.
1.6 Adjustments Due to Stock Splits,
Mergers, Consolidation, Etc.
-------------------------------
If, at any time, the Company shall take any action, whether by stock
dividend, stock split, combination of shares or otherwise, which results in a
proportionate increase or decrease in the number of shares of Common Stock
theretofore issued and outstanding, the number of shares which are reserved for
issuance under the Plan and the number of shares which, at such time, are
subject to Options shall, to the extent deemed appropriate by the Committee, be
increased or decreased in the same proportion, provided, however, that the
Company shall not be obligated to issue fractional shares.
Likewise, in the event of any change in the outstanding shares of Common
Stock by reason of any recapitalization, merger, consolidation, reorganization,
combination or exchange of shares or other corporate change, the Committee shall
make such substitution or adjustments, if any, as it deems to be appropriate, as
to the number or kind of shares of Common Stock or other securities which are
reserved for issuance under the Plan and the number of shares or other
securities which, at such time are subject to Options.
In the event of a Change in Control, (a) all options outstanding on the
date of such Change in Control shall, for a period of sixty (60) days following
such Change in Control, become immediately and fully exercisable, and (b) an
optionee will be permitted to surrender for cancellation within sixty (60) days
after such Change in Control any option or portion of an option which was
granted more than six (6) months prior to the date of such surrender, to the
extent not yet exercised, and to receive a cash payment in an amount equal to
the excess, if any, of the Fair Market Value (on the date of surrender) of the
shares of Common Stock subject to the option or portion thereof surrendered,
over the aggregate exercise price for such Shares under the option or portion
thereof surrendered.
1.7 Non-Alienation of Benefits
--------------------------
Except as herein specifically provided, no right or unpaid benefit under
the Plan shall be subject to alienation, assignment, pledge or charge and any
attempt to alienate, assign, pledge or charge the same shall be void. If any
Participant or other person entitled to benefits hereunder should attempt to
alienate, assign, pledge or charge any benefit hereunder, then such benefit
shall, in the discretion of the Committee, cease.
1.8 Withholding or Deduction for Taxes
----------------------------------
If, at any time, the Company or any Subsidiary or Affiliate is required,
under applicable laws and regulations, to withhold, or to make any deduction for
any taxes, or take any other action in connection with any Option exercise, the
Participant shall be required to pay to the Company or such Subsidiary or
Affiliate, the amount of any taxes required to be withheld, or, in lieu thereof,
at the option of the Company, the Company or such Subsidiary or Affiliate may
accept a sufficient number of shares of Common Stock to cover the amount
required to be withheld.
<PAGE>
1.9 Administrative Expenses
-----------------------
The entire expense of administering the Plan shall be borne by the
Company.
1.10 General Conditions
------------------
(a) The Board or the Committee may, from time to time, amend, suspend
or terminate any or all of the provisions of the Plan, provided
that, without the Participant's approval, no change may be made
which would prevent an Incentive Stock Option granted under the
Plan from qualifying as an Incentive Stock Option under Section
422 of the Code or result in a "modification" of the Incentive
Stock Option under Section 424(h) of the Code or otherwise alter
or impair any right theretofore granted to any Participant ; and
further provided that, without the consent and approval of the
holders of a majority of the outstanding shares of Common Stock
of the Company present at a meeting at which a quorum exists,
neither the Board not the Committee may make any amendment which
(i) changes the class of persons eligible for options; (ii)
increases (except as provided under Section 1.6 above) the total
number of shares or other securities reserved for issuance under
the Plan; (iii) decreases the minimum option prices stated in
Section 2.2 hereof (other than to change the manner of
determining Fair Market Value to conform to any then applicable
provision of the Code or any regulation thereunder); (iv) extends
the expiration date of the Plan, or the limit on the maximum term
of Options; or (v) withdraws the administration of the Plan from
a committee consisting of two or more members, each of whom is a
Disinterested Person.
b. With the consent of the Participant affected thereby, the
Committee may amend or modify any outstanding Option in any
manner not inconsistent with the terms of the Plan, including,
without limitation, and irrespective of the provisions of
Sections 2.3(c) and 2.4(b) below, to accelerate the date or dates
as of which an installment of an Option becomes exercisable.
c. Nothing contained in the Plan shall prohibit the Company or any
Subsidiary or Affiliate from establishing other additional
incentive compensation arrangements for employees of the Company
or such Subsidiary or Affiliate.
d. Nothing in the Plan shall be deemed to limit, in any way, the
right of the Company or any Subsidiary or Affiliate to terminate
a Participant's employment with the Company (or such Subsidiary
or Affiliate) at any time.
e. Any decision or action taken by the Board or the Committee
arising out of or in connection with the construction,
administration, interpretation and effect of the Plan shall be
conclusive and binding upon all Participants and any person
claiming under or through any Participant .
f. No member of the Board or of the Committee shall be liable for
any act or action, whether of commission or omission, (i) by such
member except in circumstances involving actual bad faith, nor
(ii) by any other member or by any officer, agent or employee.
1.11 Compliance with Applicable Law
------------------------------
Notwithstanding any other provision of the Plan, the Company shall not
be obligated to issue any shares of Common Stock, or grant any Option with
respect thereto, unless it is advised by counsel of its selection that it may do
<PAGE>
so without violation of the applicable Federal and State laws pertaining to the
issuance of securities and the Company may require any stock certificate so
issued to bear a legend, may give its transfer agent instructions limiting the
transfer thereof, and may take such other steps, as in its judgment are
reasonably required to prevent any such violation.
1.12 Effective Dates
---------------
The Plan was adopted by the Board on August 14, 1996, subject to
approval by the stockholders of the Company. The Plan shall terminate on August
13, 2006.
Section 2. OPTION GRANTS
-------------
2.1 Authority of Committee
----------------------
Subject to the provisions of the Plan, the Committee shall have the sole
and complete authority to determine (i) the Participants to whom Options shall
be granted; (ii) the number of shares to be covered by each Option; and (iii)
the conditions and limitations, if any, in addition to those set forth in
Section 2 hereof, applicable to the exercise of an Option, including without
limitation, the nature and duration of the restrictions, if any, to be imposed
upon the sale or other disposition of shares acquired upon exercise of an
Option.
Stock options granted under the Plan may be of two types: an incentive
stock option ("Incentive Stock Option"); and a non-qualified stock option
("Non-Qualified Stock Option").
It is intended that the Incentive Stock Options granted hereunder shall
constitute incentive stock options within the meaning of Section 422 of the Code
and shall be subject to the tax treatment described in Section 422 of the Code.
Anything in the Plan to the contrary notwithstanding, no provision of
the Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify either the Plan or, without the consent of the
optionee, any Incentive Stock Option under Section 422 of the Code.
The Committee shall have the authority to grant Incentive Stock Options,
or to grant Non-Qualified Stock Options, or to grant both types of Options. To
the extent that any Option does not qualify as an Incentive Stock Option, in
whole or in part, it shall constitute a separate Non-Qualified Stock Option to
the extent of such disqualification.
2.2 Option Exercise Price
---------------------
The price of stock purchased upon the exercise of Options granted
pursuant to the Plan shall be the Fair Market Value thereof at the time that the
Option is granted.
If an employee owns or is deemed to own (by reason of the attribution
rules applicable under Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of the stock of the Company or Subsidiary or
Affiliate and an Option granted to such employee is intended to qualify as an
Incentive Stock Option within the meaning of Section 422 of the Code, the
exercise price shall be not less than 110% of the Fair Market Value of the
Common Stock on the date the Option is granted. The purchase price is to be paid
in full in cash, certified or bank cashier's check or, at the option of the
Company, Common Stock valued at its Fair Market Value on the date of exercise,
or a combination thereof, when the Option is exercised and stock certificates
will be delivered only against such payment.
<PAGE>
2.3 Incentive Stock Option Grants
-----------------------------
Each Incentive Stock Option will be subject to the following provisions:
a. Term of Option
--------------
An Incentive Stock Option will be for a term of not more than ten
years from the date of grant, except in the case of an employee
described in the second paragraph of Section 2.2 above in which
case an Incentive Stock Option will be for a term of not more than
five years from the date of the grant.
b. Annual Limit
------------
To the extent the aggregate Fair Market Value of the Common Stock
(determined as of the date of grant) with respect to which any
options granted hereunder are intended to be designated as
Incentive Stock Options under the Plan (or any other incentive
stock option plan of the Company or any Subsidiary or Affiliate
which may be exercisable for the first time by the optionee in any
calendar year exceeds $100,000, such options shall not be
considered incentive stock options.
c. Exercise
--------
Subject to the power of the Committee under Section 1.10(b) above
and except in the manner described below upon the death of the
optionee, an Incentive Stock Option may be exercised only in
installments as follows: up to one-half of the subject shares on
and after the first anniversary of the date of grant, up to all of
the subject shares on and after the second such anniversary of the
date of the grant of such Option but in no event later than the
expiration of the term of the Option.
An Incentive Stock Option shall be exercisable during the
optionee's lifetime only by the optionee and shall not be
exercisable by the optionee unless, at all times since the date of
grant and at the time of exercise, such optionee is an employee of
the Company, or any Subsidiary or Affiliate, except that, upon
termination of all employment (other than by death or by Total
Disability followed by death in the circumstances provided below)
with the Company, any Subsidiary or Affiliate, the optionee may
exercise an Incentive Stock Option at any time within three months
thereafter but only to the extent such Option is exercisable on the
date of such termination.
Upon termination of all employment by Total Disability, the
Optionee may exercise such options at any time within three years
thereafter (or one year with respect to the exercise of an
Incentive Stock Option), but only to the extent such option is
exercisable on the date of such termination.
In the event of the death of an optionee (i) while an employee of
the Company, or any Subsidiary or Affiliate, or (ii) within three
months after termination of all employment with the Company, or any
Subsidiary or Affiliate (other than for Total Disability) or (iii)
within three years after termination on account of Total Disability
of all employment with the Company, or any Subsidiary (or one year
with respect to the exercise of an Incentive Stock Option), such
optionee's estate or any person who acquires the right to exercise
such option by bequest or inheritance or by reason of the death of
the optionee may exercise such optionee's Option at any time within
the period of two years from the date of death. In the case of
clauses (i) and (iii) above, such Option shall be exercisable in
full for all the remaining shares covered thereby, but in the case
of clause (ii) such Option shall be exercisable only to the extent
it was exercisable on the date of such termination.
<PAGE>
Notwithstanding the foregoing provisions regarding the exercise of
an Option in the event of death, Total Disability or other
termination of employment, in no event shall an Option be
exercisable in whole or in part after the termination date provided
in the Option.
d. Transferability
---------------
An Incentive Stock Option granted under the Plan shall not be
transferable other than by will or by the laws of descent and
distribution.
2.4 Non-Qualified Stock Option Grants
---------------------------------
Each Non-Qualified Stock Option will be subject to the following
provisions:
a. Term of Option
--------------
A Non-Qualified Stock Option will be for a term of not more than
ten years from the date of grant.
b. Exercise
--------
The exercise of a Non-Qualified Stock Option shall be subject to
the same terms and conditions as provided under Section 2.3(c)
above.
c. Transferability
---------------
A Non-Qualified Stock Option granted under the Plan shall not be
transferable other than by will or by the laws of descent and
distribution.
2.5 Agreements
----------
In consideration of any Options granted to a Participant under the Plan,
each such Participant shall enter into an Option Agreement with the Company
providing, consistent with the Plan, such terms as the Committee may deem
advisable.
Exhibit 5
December 16, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Aeroflex Incorporated
Registration Statement on Form S-8
----------------------------------
Gentlemen:
Reference is made to the filing by Aeroflex Incorporated (the
"Corporation") of a Registration Statement on Form S-8 with the Securities and
Exchange Commission pursuant to the provisions of the Securities Act of 1933, as
amended, covering the registration of 1,500,000 shares of the Corporation's
Common Stock, $.10 par value per share, in connection with the Corporation's
1996 Stock Option Plan (the "1996 Plan").
As counsel for the Corporation, we have examined its corporate records,
including its Certificate of Incorporation, as amended, By-Laws, its corporate
minutes, the form of its Common Stock certificate, the 1996 Plan, related
documents under the 1996 Plan and such other documents as we have deemed
necessary or relevant under the circumstances.
Based upon our examination, we are of the opinion that:
1. The Corporation is duly organized and validly existing under the laws of
the State of Delaware.
2. There have been reserved for issuance by the Board of Directors of the
Corporation 1,500,000 shares of its Common Stock, $.10 par value per share,
under the 1996 Plan. The shares of the Corporation's Common Stock, when issued
pursuant to the 1996 Plan, will be validly authorized, legally issued, fully
paid and non-assessable.
We hereby consent to be named in the Registration Statement and in the
Prospectus which constitutes a part thereof as counsel to the Corporation, and
we hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
BLAU, KRAMER, WACTLAR &
LIEBERMAN, P. C.
Exhibit 23.2
KPMG Peat Marwick LLP
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Aeroflex Incorporated:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Jericho, New York
December 10, 1997
