Registration No. 333-64611
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
POST EFFECTIVE AMENDMENT NO. 1 TO
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, AS AMENDED
(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
--------------------
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(3)
per share
==================================================================================================
<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.
(3) Previously paid.
</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, 1999;
(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 8. Exhibits.
--------
4 1998 Stock Option Plan, as amended.*
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 LLP.*
24 Powers of Attorney.*
- -----------------
*filed herewith
** previously filed
<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 Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Plainview, New York on the 29th day of October, 1999.
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 Amendment to Registration Statement has been signed on October 29, 1999 by
the following persons in the capacities indicated.
Signature Title
--------- -----
*
- ------------------------- Chairman of the Board and
Harvey R. Blau (Chief Executive Officer)
/s/ Michael Gorin
- ------------------------- President and Director
Michael Gorin (Chief Financial Officer and Principal
Accounting Officer)
*
- ------------------------- Executive Vice President, Chief Operating
Leonard Borow Officer, Secretary and Director
* Director
- -------------------------
Milton Brenner
* Director
- -------------------------
Ernest E. Courchene, Jr.
* Director
- -------------------------
Donald S. Jones
* Director
- -------------------------
Eugene Novikoff
* Director
- -------------------------
John S. Patton
- ------------------------- Director
Paul Abecassis
* _____________________________________
by: Michael Gorin, Attorney-in-fact
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
================================================================================
AEROFLEX INCORPORATED
================================================================================
Form S-8 Registration Statement
________________________________________________________________________________
E X H I B I T I N D E X
________________________________________________________________________________
Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------- ------------------- -----------------------
4 1998 Stock Option Plan, as amended. . . . . .
23.2 Consent of KPMG LLP . . . . . . . . . . . . .
Exhibit 4
Aeroflex Incorporated
1998 Stock Option Plan, as amended
----------------------------------
SECTION 1. GENERAL PROVISIONS
------------------
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.
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.
<PAGE>
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 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.
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.
<PAGE>
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 exercise price set forth in the Option Agreement at the time of grant
shall not be less than 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.
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.
<PAGE>
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.
(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.
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Aeroflex Incorporated
We consent to the incorporation by reference in the amendment to the
registration statement on Form S-8 of Aeroflex Incorporated of our report dated
August 10, 1999, relating to the consolidated balance sheets of Aeroflex
Incorporated and subsidiaries as of June 30, 1999 and 1998 and the related
consolidated statements of earnings, stockholders' equity and cash flows for
each of the years in the three-year period ended June 30, 1999, which report is
incorporated by reference in the June 30, 1999 annual report on Form 10-K of
Aeroflex Incorporated and subsidiaries.
/s/ KPMG LLP
KPMG LLP
Melville, New York
November 2, 1999
