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 1998 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
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
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) $9.00 $13,500,000 $4,023
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 September 23, 1998.
(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.
---------------------------------------
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) and (b) below:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1998;
(b) 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.
--------------------------------------
Harvey R. Blau, a member of the law firm of Blau, Kramer, Wactlar &
Lieberman, P.C. ("BKW&L") is Chairman of the Board and Chief Executive Officer
of the Registrant. As of September 25, 1998, Mr. Blau owns 227,155 shares of
Common Stock, including 4,651 shares held by the Blau, Kramer, Wactlar &
Lieberman, P.C. Profit Sharing Plan and 110,058 shares owned by his wife, as to
which Mr. Blau has disclaimed beneficial ownership, as well as 1,140,000 options
to purchase Common Stock granted to Mr. Blau pursuant to the Registrant's
various stock option plans.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
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.
<PAGE>
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
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 $250,000. 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.
--------
4 1998 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
<PAGE>
to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration
Statement.
(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.
<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 Jericho, New York on the 29th day of September, 1998.
AEROFLEX INCORPORATED
By: /s/ Michael Gorin
------------------------------------
Michael Gorin
President and Director (Chief Financial Officer
and Principal Accounting Officer)
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on September 29, 1998 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
--------- -----
/s/ Harvey R. Blau Chairman of the Board and
- --------------------------------- (Chief Executive Officer)
Harvey R. Blau
/s/ Michael Gorin President and Director
- --------------------------------- (Chief Financial Officer and Principal
Michael Gorin Accounting Officer)
/s/ Leonard Borow Executive Vice President, Chief Operating
- --------------------------------- Officer, Secretary and Director
Leonard Borow
/s/ Robert Bradley, Sr. Director
- ---------------------------------
Robert Bradley, Sr.
/s/ Milton Brenner Director
- ---------------------------------
Milton Brenner
/s/ Ernest E. Courchene, Jr. Director
- ---------------------------------
Ernest E. Courchene, Jr.
/s/ Donald S. Jones Director
- ---------------------------------
Donald S. Jones
/s/ Eugene Novikoff Director
- ---------------------------------
Eugene Novikoff
/s/ John S. Patton Director
- ---------------------------------
John S. Patton
- --------------------------------- Director
Paul Abecassis
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AEROFLEX INCORPORATED
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Form S-8 Registration Statement
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E X H I B I T I N D E X
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Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------- ------------------- -----------------------
4 1998 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
Exhibit 4
Aeroflex Incorporated
1998 Stock Option Plan
----------------------
SECTION 1. GENERAL PROVISIONS
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1.1. Name and General Purpose
------------------------
The name of this plan is the Aeroflex Incorporated 1998 Stock Option
Plan (hereinafter called the "Plan"). The Plan is intended to be a broadly-based
incentive plan which enables Aeroflex Incorporated (the "Company") and its
subsidiaries and affiliates to foster and promote the interests of the Company
by attracting and retaining directors, officers and employees of, and
consultants to, the Company who contribute to the Company's success by their
ability, ingenuity and industry, to enable such directors, officers, employees
and consultants 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
-----------
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 defined in
Regulation 240.12b-(2) 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. "Committee" means the Committee referred to in Section 1.3
of the Plan.
e. "Common Stock" means shares of the Common Stock, par value
$.10 per share, of the Company.
f. "Company" means Aeroflex Incorporated, a corporation
organized under the laws of the State of Delaware (or any
successor corporation).
g. "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.
<PAGE>
h. "Non-Employee Director" shall have the meaning set forth in
Rule 16(b) promulgated by the Securities and Exchange
Commission ("Commission").
i. "Option" means any option to purchase Common Stock under
Section 2 of the Plan.
j. "Option Agreement" means the option agreement described in
Section 2.4 of the Plan.
k. "Participant" means any director, officer, employee or
consultant of the Company, a Subsidiary or an Affiliate who
is selected by the Committee to participate in the Plan.
l. "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.
m. "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 Board or by the Committee
appointed by the Board consisting of two or more members of the Board all of
whom shall be Non-Employee Directors. 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 action
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 directors, officers, employees
or consultants of the Company or a Subsidiary or Affiliate. Any person who has
been granted any Option may, if he is otherwise eligible, be granted an
additional Option or Options.
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.
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.
<PAGE>
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, at the option of the Board or
Committee, (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 purchase price for
such Shares under the Option.
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.
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 alter or impair any right theretofore
granted to any Participant.
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
Section 2.3(c) below, to accelerate the date or dates as of
which an installment of an Option becomes exercisable.
<PAGE>
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
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 April 29, 1998. The Plan shall
terminate on April 28, 2008.
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
Sections 2 and 3 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 shall be non-qualified stock
options.
The Committee shall have the authority to grant Options.
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.
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 Option Grants
-------------
Each Option will be subject to the following provisions:
a. Term of Option
--------------
An Option will be for a term of not more than ten years from
the date of grant.
b. Exercise
--------
(i) By an Employee:
--------------
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 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 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
or providing services to the Company, any parent corporation
of the Company or any Subsidiary or Affiliate, except that,
upon termination of all such employment or provision of
services (other than by death, Total Disability, or by Total
Disability followed by death in the circumstances provided
below), the optionee may exercise an 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 such employment by Total Disability,
the optionee may exercise such Options at any time within
three years thereafter, 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 or providing services to the Company, any parent
corporation of the Company or any Subsidiary or Affiliate,
or (ii) within three months after termination of all such
employment or provision of services (other than for Total
Disability) or (iii) within three years after termination on
account of Total Disability of all such employment or
provision of services, 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 three 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>
(ii) By Persons other than Employees:
If the optionee is not an employee of the Company or the
parent corporation of the Company or any Subsidiary or
Affiliate, the vesting of such optionee's right to exercise
his Options shall be established and determined by the
Committee in the Option Agreement covering the Options
granted to such optionee.
Notwithstanding the foregoing provisions regarding the
exercise of an Option in the event of death, Total
Disability, other termination of employment or provision of
services or otherwise, in no event shall an Option be
exercisable in whole or in part after the termination date
provided in the Option Agreement.
c. Transferability
---------------
An Option granted under the Plan shall not be transferable
otherwise than by will or by the laws of descent and
distribution, except as may be permitted by the Board or the
Committee.
2.4 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
September 29, 1998
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
1998 Stock Option Plan (the "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 Plan, related
documents under the 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.
The shares of the Corporation's Common Stock, when issued pursuant to the 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 of the Corporation, and
we hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/BLAU, KRAMER, WACTLAR & LIEBERMAN, P.C.
BLAU, KRAMER, WACTLAR &
LIEBERMAN, P.C.
KPMG Peat Marwick LLP
Independent Auditors' Consent
-----------------------------
Board of Directors
Aeroflex Incorporated
We consent to the use of our report incorporated herein by reference in this
registration statement on Form S-8 of Aeroflex Incorporated of our report dated
August 13, 1998, relating to the consolidated balance sheets of Aeroflex
Incorporated and subsidiaries as of June 30, 1998 and 1997 and the related
consolidated statements of operations, stockholders' equity and cash flows and
related schedule for each of the years in the three-year period ended June 30,
1998 which report appears in the June 30, 1998 annual report on Form 10-K of
Aeroflex Incorporated.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Jericho, New York
September 25, 1998
