As filed with the Securities and Exchange Commission on January 12, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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 Michael Gorin, President
Plainview, New York 11803 Aeroflex Incorporated
(516) 694-6700 35 South Service Road
(Address, including zip code and telephone Plainview, New York 11803
number, including area code, of registrant's (516) 694-6700
principal executive offices) (Name address and telephone
number, including area code,
of agent for service)
Copies to:
Nancy D. Lieberman, Esq.
Blau, Kramer, Wactlar & Lieberman, P.C.
100 Jericho Quadrangle
Jericho, New York 11753
(516) 822-4820
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ].
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box [X].
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering [ ].
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering [ ].
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box [ ].
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed Maximum
Title of Each Class of Amount to be Maximum Offering Aggregate Offering Amount of
Securities to be Registered Registered Price Per Security (1) Price Registration Fee
--------------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $.10 par value 550,000 $21.375 $11,756,250 $3,104
<FN>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 under the Securities Act of 1933, as amended. Pursuant to Rule
457(c) under the Securities Act of 1933, the proposed maximum offering price of
each share of the Registrant's Common Stock is estimated to be the average of
the high and low sale prices of a share as of a date five business days before
the filing of this Registration Statement. Accordingly, the Registrant has used
$21.375 as such price per share, which is the average of the high of $22.875
and $19.875 reported by the Nasdaq National Market on January 10, 2001.
--------------------------------------------------------------------------------
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Subject to Completion, Dated January 12, 2001
The information contained in this prospectus is not complete and may be changed.
These securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
550,000 Shares
AEROFLEX INCORPORATED
Common Stock
The selling stockholders are selling up to 550,000 shares of common stock. The
shares may be offered directly, through agents on their behalf or through
underwriters or dealers.
We will bear the expenses in connection with the offering, including filing fees
and our legal and accounting fees, estimated at $20,000.
The common stock is quoted on the Nasdaq National Market under the symbol ARXX.
On January 10, 2001, the last reported sales price of the common stock on the
Nasdaq National Market was $22.75.
Investing in our common stock involves risks. See "Risk Factors" beginning on
page 1 .
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is_______, 2001.
<PAGE>
TABLE OF CONTENTS
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . 1
FORWARD-LOOKING STATEMENTS . . . . . . . . . . . . . . . . . . 6
USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . 7
PRICE RANGE OF COMMON STOCK. . . . . . . . . . . . . . . . . . 7
DIVIDEND POLICY. . . . . . . . . . . . . . . . . . . . . . . . 7
ABOUT AEROFLEX INCORPORATED . . . . . . . . . . . . . . . . . 8
SELLING STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . 9
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . 9
LEGAL MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . 10
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
WHERE YOU CAN FIND MORE INFORMATION ABOUT US . . . . . . . . . 11
As used in this prospectus, the terms "we," "us," "our," and "Aeroflex" mean
Aeroflex Incorporated and its subsidiaries, unless we specify otherwise.
We are incorporated under the laws of the state of Delaware. Our executive
offices are located at 35 South Service Road, Plainview, New York, 11803 and our
telephone number is (516) 694-6700.
PIMIC and Commercial RadHard are our trademarks. All other trademarks mentioned
in this prospectus are the property of their respective owners.
You should rely only on the information contained in this document or to which
we have referred you. We have not authorized anyone to provide you with
information that is different. This document may be used only where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document.
i
<PAGE>
RISK FACTORS
You should carefully consider the factors described below and other information
contained in this prospectus before making a decision to buy our common stock.
The risks and uncertainties described below are not the only ones we face.
Additional risks and uncertainties not presently known to us, which we currently
deem immaterial or which are similar to those faced by other companies in our
industry or business in general, may also impair our business operations. If any
of the following risks actually occurs, our business, financial condition or
results of future operations could be materially and adversely affected. In such
case, the trading price of our common stock could decline, and you may lose all
or part of your investment. This prospectus also contains forward-looking
statements that involve risks and uncertainties. Please refer to "Forward-
Looking Statements" on page 6.
Changes in technology may adversely affect our operating results.
The markets for most of our products change rapidly because of technological
innovation, evolving industry standards and new product introductions and
enhancements. Sales of our products depend in part on the continuing development
and use of microelectronic modules, integrated circuits and interconnect and
testing products. We cannot guarantee that demand for our products will not be
reduced by new developments in the
-- fiber optics;
-- broadband cable;
-- wireless; and
-- satellite markets.
Our success depends on our ability to enhance our existing products and to
develop and introduce innovative new products on a timely basis that gain market
acceptance. We cannot guarantee that we will successfully integrate new
technologies into our products or develop new products in a timely manner.
Gross margins for our products may decline over time.
Average selling prices for our products may decline over time. Many of our
manufacturing costs are fixed. For a given level of sales, if our manufacturing
costs decline, our gross margins would improve, and if our manufacturing costs
increase, our gross margins would decline. Our operating results suffer when
gross margins decline. We have also experienced cost overruns on some of our
fixed-price contracts in the past and we cannot guarantee that we will not have
cost overruns in the future. We may experience these problems in the future and
we cannot predict when they may occur or their severity.
Our failure to obtain a return on our investments in design and engineering may
cause our business to suffer.
We make significant investments in design and engineering of new products for
our customers without requiring them to commit to any future purchase of such
products. If we fail to receive initial or follow-on orders, it may have a
material adverse effect on our business, operating results and financial
condition.
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<PAGE>
Our products could contain defects, which could subject us to product liability
claims or reduce product sales.
Our sales of products and systems may subject us to product liability and
related claims. A product liability claim brought against us could have a
material adverse effect on our business, operating results and financial
condition. Complex products, like those we sell, may contain defects or
failures. There can be no assurance that, despite testing of our products,
errors will not be found in products after shipment, resulting in
-- loss of market share;
-- failure to achieve market acceptance; or
-- product liability claims.
Although we have product liability insurance, we cannot guarantee that our
insurance coverage will apply to a particular claim or that we have enough
insurance coverage if someone makes a significant claim.
Our operating results may fluctuate significantly on a quarterly basis.
Our sales, earnings and other operating results have fluctuated significantly in
the past, and we expect this trend will continue. Factors which affect our
results include:
-- the timing, cancellation or rescheduling of customer estimates, orders and
shipments;
-- the pricing and mix of products sold;
-- new product introductions by us;
-- our ability to obtain components and subassemblies from contract
manufacturers and suppliers; and
-- variations in manufacturing efficiencies.
Many of these factors are beyond our control. Historically, the fourth quarter
of our fiscal year has been our strongest. Our performance in any one fiscal
quarter is not necessarily indicative of any financial trends or future
performance.
We face challenges in managing our growth.
We develop, manufacture and market diverse products. The growth in the size and
complexity of our business and the expansion of our product lines and customer
base have placed significant demands on our management and operations, and we
expect that they will continue to place such demands. Our ability to compete
effectively and to manage future growth will depend on our ability to continue
to implement and improve operational and financial systems on a timely basis. We
cannot guarantee that we will be able to manage our future growth. If we cannot,
it could have a material adverse effect on our business, operating results and
financial condition.
Our business may suffer if we fail to protect our intellectual property.
Our success depends upon our intellectual property rights. We own several
patents, patent licenses and trademarks. We rely on a combination of :
-- trade secret, patent, copyright and trademark laws;
-- employee and third-party nondisclosure agreements; and
-- limiting access to and distribution of proprietary information.
2
<PAGE>
Trade secret, copyright and trademark laws provide limited protection. These
laws, combined with the steps we take to protect our proprietary rights, may not
be enough to prevent our loss of those rights. Also, these protections do not
prevent our competitors from independently developing products similar or
superior to our products and technologies. To further develop our services or
products, we may need to acquire licenses for intellectual property to avoid
infringing on a third party's product. These licenses may not be available on
commercially reasonable terms, if at all. Our failure or inability to protect
our proprietary technology or to obtain appropriate licenses could have a
material adverse effect on our business, operating results or financial
condition.
We also cannot guarantee that in the future, third parties will not claim that
we infringed on their intellectual property. Asserting our rights or defending
against third party claims could involve substantial costs and diversion of
resources, which could materially and adversely affect us. If a third party is
successful in a claim that one of our products infringed its proprietary rights,
we may have to
-- pay substantial royalties or damages;
-- remove our product from the marketplace; or
-- spend substantial amounts to modify the product so that it no longer
infringes those proprietary rights.
A large percentage of our sales are to a small group of customers.
In fiscal 2000, our sales to Teradyne were 11.0% and our sales to Lockheed
Martin were 10.5% of our total net sales. In addition, a significant amount of
our sales are from a limited group of customers, including
-- contractors of the United States Department of Defense;
-- Nortel Networks Corp.;
-- Motorola Inc.;
-- Hughes Space & Communications Corp.;
-- Raytheon Co.; and
-- Northrop Grumman Corp.
We expect that we will continue to sell products to a relatively small group of
customers. As a result, any cancellation, reduction or delay in orders by or
shipments to any significant customer, as a result of manufacturing or supply
difficulties or otherwise, or the inability of any customer to finance its
purchases of our products would materially adversely affect our business,
operating results and financial condition.
In addition, although our sales to the defense market have declined from 74% in
fiscal 1995 to 32% in fiscal 2000, our sales could be materially adversely
impacted by a decrease in defense spending by the United States government
because of defense budget cuts, general budgetary constraints or otherwise. The
United States defense budget has been reduced and may be further reduced. Fewer
available defense industry production programs, together with continued pricing
pressure on follow-on orders for programs on which we participate, may result in
decreased sales of our defense products. Also, defense contracts frequently
contain provisions that are not standard in commercial transactions, such as
provisions which allow a contract to be canceled if funding for a program is
reduced or canceled.
We may not be able to continue to attract and retain qualified employees.
Our future success depends on our ability to attract and retain qualified
3
<PAGE>
-- engineering;
-- management;
-- manufacturing;
-- quality assurance;
-- marketing; and
-- support personnel.
Competition for these personnel is intense. We cannot guarantee that we will be
able to continue to attract and retain these personnel.
Our recent acquisitions and possible future acquisitions may disrupt our
business.
In September 2000, we acquired all of the assets of Amplicomm, Inc. and in
October 2000, we acquired all of the issued and outstanding stock of two
companies, Altair Aerospace Corporation and RDL, Inc. In the normal course of
our business, we evaluate potential acquisitions of businesses, product lines
and technologies that could complement or expand our business. In connection
with our recent acquisitions and any future acquisition we do not know whether
we will be able to
-- successfully negotiate the terms of the acquisition;
-- successfully finance the acquisition;
-- successfully integrate an acquired business, product line, or technology
into our existing business or product lines to fully benefit from an
acquisition; or
-- retain key personnel previously associated with the acquired businesses.
Negotiating potential acquisitions and integrating acquired businesses could
divert management's time and resources. In addition, in completing future
mergers or acquisitions, we may issue a significant number of shares of common
stock or incur significant additional indebtedness, which could dilute our
earnings or the book value per share of our common stock.
We rely on a limited number of suppliers and contract manufacturers.
We rely on contract manufacturers and suppliers to provide us with services and
materials necessary for our manufacture of products. In some cases we rely on
sole source suppliers or limited groups of suppliers. Selected ceramic
substrates which are supplied to us by Coors Ceramics Co. are sole source items.
Our reliance on contract manufacturers and on sole source suppliers involves
several risks, including
-- a potential inability to obtain critical materials or services; and
-- reduced control over
-- production costs;
-- delivery schedules;
-- reliability; and
-- quality of components or subassemblies.
Our inability to obtain timely deliveries of acceptable quality, or any other
circumstance that would require us to seek alternative contract manufacturers or
suppliers, could affect our ability to timely deliver products to customers.
This in turn would have a material adverse affect on our business, operating
results and financial condition. In addition, if our contract manufacturers' or
suppliers' costs increase and they pass their cost increase through to us, we
may suffer losses if we cannot recover those cost increases under fixed price
production commitments to our customers.
4
<PAGE>
Our stock price may be volatile.
The stock market in general, and the market for shares of technology companies
in particular, have experienced extreme price fluctuations. These price
fluctuations are often unrelated to the operating performance of the affected
companies. Many technology companies, including our company, have experienced
dramatic volatility in the market prices of their common stock. If our future
operating results are below the expectations of stock market analysts and
investors, our stock price may decline. We cannot be certain that the market
price of our common stock will remain stable in the future. Our stock price may
undergo fluctuations that are material, adverse and unrelated to our
performance. In addition, our stock began trading on the Nasdaq Stock Market in
March 2000 and we have a limited trading history on that market.
Our certificate of incorporation and bylaws include antitakeover provisions
which may deter or prevent a takeover attempt.
Some provisions of our certificate of incorporation and bylaws and provisions of
Delaware law may discourage takeover attempts and hinder a merger, tender offer
or proxy contest targeting us, including transactions in which stockholders
might receive a premium for their shares. This may limit your ability as a
stockholder to approve a transaction that you may think is in your best
interest. These provisions include:
-- Classified Board of Directors. Our certificate of incorporation provides
for a board which is divided into three classes so not all of the directors
are subject to election at the same time. As a result, someone who wishes
to take control of our company by electing a majority of the board of
directors must do so over a two year period.
-- Shareholder Rights Plan. We have adopted a rights plan which provided for a
dividend distribution of one right for each share to holders of record of
common stock on August 31, 1998. The rights become exercisable in the event
any person or group accumulates 20% or more of our common stock, or if any
person or group announces an offer which would result in it owning 20% or
more of our common stock and our management does not approve of the
proposed ownership.
-- Employment Contracts. The employment agreements between us and each of
Harvey R. Blau, Michael Gorin, Leonard Borow and Carl Caruso provide that
in the event there is a change in control of Aeroflex, the employee has the
option, exercisable within one year in the case of Messrs. Blau, Gorin and
Borow and six months in the case of Mr. Caruso of his becoming aware of the
change in control, to terminate his employment agreement. Upon such
termination, each of Messrs. Blau, Gorin and Borow has the right to receive
a lump sum payment equal to his compensation, including any incentive
payment, for the remainder of the term of his contract, as well as a tax
gross-up payment to cover any excise tax due and Mr. Caruso has the right
to receive a lump sum payment equal to his base salary for the remainder of
the term of his contract.
-- Delaware anti-takeover statute. Delaware law restricts business
combinations with stockholders who acquire 15% or more of a company's
common stock without the consent of the company's board of directors.
5
<PAGE>
These provisions could reduce the price that certain investors might be willing
to pay in the future for shares of our common stock. Moreover, although our
ability to issue preferred stock may provide flexibility in connection with
possible acquisitions and other corporate purposes, such issuance may make it
more difficult for a third party to acquire, or may discourage a third party
from acquiring, a majority of our voting stock.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the Securities and Exchange
Commission which we have referenced under "Where You Can Find More Information
About Us" on page 11 contains forward- looking statements made pursuant to the
safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements represent our judgment regarding future events.
Although we would not make forward-looking statements unless we believe we have
a reasonable basis for doing so, we cannot guarantee their accuracy and actual
results may differ materially from those we anticipated due to a number of
uncertainties, many of which we are not aware. We urge you to consider the risks
and uncertainties discussed under "Risk Factors" and elsewhere in this
prospectus and in the other documents filed with the Commission in evaluating
our forward-looking statements. We have no plans to update our forward-looking
statements to reflect events or circumstances after the date of this prospectus.
We generally identify forward-looking statements with the words "believe",
"intend," "plan," "expect," "anticipate," "estimate," "will," "should" and
similar expressions.
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USE OF PROCEEDS
We will not receive any of the proceeds of this offering.
PRICE RANGE OF COMMON STOCK
Our common stock is traded on the Nasdaq National Market under the symbol
"ARXX." Prior to March 21, 2000, our common stock was traded on the New York
Stock Exchange under the symbol "ARX." The following table sets forth, for the
calendar periods indicated, the high and low closing sales prices of our common
stock as reported by the Nasdaq National Market since March 21, 2000 and, prior
to March 21, 2000, the high and low closing sales prices of our common stock as
reported by the New York Stock Exchange, in each case as adjusted to give effect
to our five-for-four stock split in July 2000 and our two-for-one stock split in
November 2000.
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C> <C>
1998
----
First Quarter. . . . . . . . . . . . . . . . . . . . $5.85 $3.15
Second Quarter . . . . . . . . . . . . . . . . . . . 5.73 3.40
Third Quarter. . . . . . . . . . . . . . . . . . . . 4.63 2.68
Fourth Quarter . . . . . . . . . . . . . . . . . . . 6.05 3.00
1999
----
First Quarter. . . . . . . . . . . . . . . . . . . . $7.35 $4.83
Second Quarter . . . . . . . . . . . . . . . . . . . 7.90 5.20
Third Quarter. . . . . . . . . . . . . . . . . . . . 8.63 4.88
Fourth Quarter . . . . . . . . . . . . . . . . . . . 5.43 2.23
2000
----
First Quarter. . . . . . . . . . . . . . . . . . . . $28.00 $ 3.88
Second Quarter . . . . . . . . . . . . . . . . . . . 19.88 10.40
Third Quarter . . . . . . . . . . . . . . . . . . . 24.31 12.84
Fourth Quarter . . . . . . . . . . . . . . . . . . . 35.25 20.81
2001
----
First Quarter (through January 10, 2001) . . . . . . $28.69 $20.31
</TABLE>
On January 10 , 2001, the last reported sales price of our common stock, as
reported by the Nasdaq National Market, was $22.75 per share. As of January 10,
2001, there were approximately 835 holders of record of our common stock.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock. Other
than a two-for-one stock split in November 2000 and a five-for-four stock split
in July 2000, we have not declared or paid stock dividends on our common stock
during the past four years. We intend to retain any future earnings for the
development and expansion of our business and for acquisitions and so do not
intend to declare or pay any cash dividends in the foreseeable future. In
addition, we are a party to a revolving credit, term loan and mortgage agreement
which prohibits us from paying cash dividends.
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<PAGE>
ABOUT AEROFLEX INCORPORATED
We design, develop and manufacture microelectronic products and automated test
equipment for the broadband communications market. Using our technology base,
our products support and enhance the bandwidth, speed and mobility for all
sectors of the broadband communications market, including fiber optics, cable,
satellite and fixed broadband wireless communications systems. Regardless of our
customers' choice of broadband deployment, we provide them with a complete
solution for their broadband component needs through our capabilities in thin
film interconnects, microelectronics, proprietary radiation tolerant technology
and high speed test systems.
Due to the unique dimensional, thermal and electrical capabilities of our
passive integrated microelectronic interconnect circuitry, or PIMIC, technology,
our products have become an essential component in fiber optic transmitters,
receivers and amplifiers, cable amplifiers and point-to-point and
point-to-multipoint microwave radios.
We are one of the world's leading manufacturers of space hybrid microcircuits.
We hold numerous prime space contractor certifications. Application specific
multi-function modules and hybrid designs are highly reliable, small and
lightweight.
We produce radiation tolerant integrated circuits. These circuits are used in
satellite and other space applications where radiation tolerance is necessary to
protect the integrity of the data and the reliability of the components.
We have developed advanced technologies in high speed stimulus/response
measurement systems which are used as the basis for increased testing speed of
high frequency system on a chip, or SOC, integrated circuits which operate in
radio frequency, or RF, and microwave frequency bands. We have developed
high-speed receiver, digital signal processing, proprietary software and
firmware technology to support data acquisition and presentation measurement
systems for satellite payloads, transmit and receive modules and base station
testing.
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SELLING STOCKHOLDERS
The following table sets forth the ownership of the selling stockholders, the
number of shares of common stock beneficially owned by each of the selling
stockholders, and the number of shares which may be offered for resale pursuant
to this prospectus. Both of the selling stockholders are officers of our
Aeroflex Altair Cybernetics Corporation subsidiary and were officers, directors
and stockholders of that company prior to the time we acquired it in October
2000. The selling shareholders received their shares in connection with our
acquisition of Aeroflex Altair Cybernetics Corporation and we are registering
their shares pursuant to their request in accordance with the terms of the
acquisition. Except for the foregoing, neither of the selling stockholders has
had any position, office or other material relationship with us or our
predecessors or affiliates within the past three years.
The information included below is based upon information provided by the selling
stockholders. Because the selling stockholders may offer all, some or none of
their shares, the "After Offering" column of the table assumes the sale of all
of their shares; however, we do not know that this will actually occur.
<TABLE>
<CAPTION>
Selling Stockholder Number of Shares Owned
------------------- ----------------------
Before Offering After Offering
--------------- --------------
<S> <C> <C>
Bryant G. Cruse 302,500 0
David A. Poole 247,000 0
------- -
Total Shares 550,000 0
======= =
</TABLE>
PLAN OF DISTRIBUTION
Our shares are traded on the Nasdaq Stock Market National Market System under
the symbol ARXX. The shares may be sold from time to time directly by the
selling stockholders. Alternatively, the selling stockholders may from time to
time offer such securities through underwriters, dealers or agents. The
distribution of securities by the selling stockholders may be effected in one or
more transactions that may take place on the Nasdaq Stock Market National Market
System, including ordinary brokers' transactions, privately-negotiated
transactions or through sales to one or more broker-dealers for resale of the
shares as principals, at market prices prevailing at the time of sale, at prices
related to prevailing market prices or at negotiated prices. Usual and customary
or specifically negotiated brokerage fees or commissions may be paid by the
selling stockholders in connection with such sales of securities.
At the time a particular offer of securities is made by or on behalf of the
selling stockholders, to the extent required, a prospectus will be distributed
which will set forth the number of shares being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents, if
any, the purchase price paid by any underwriter for shares purchased from the
selling stockholders and any discounts, commissions or concessions allowed or
reallowed or paid to dealers, and the proposed selling price to the public.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
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LEGAL MATTERS
The validity of the issuance of the common stock offered hereby will be passed
upon for us by the law firm of Blau, Kramer, Wactlar & Lieberman, P.C., Jericho,
New York. Harvey R. Blau, a member of the firm, is our Chairman and Chief
Executive Officer. As of January 10, 2001, Mr. Blau owns 2,761,230 shares of our
common stock, including options to purchase 2,511,390 shares of common stock
granted pursuant to certain of our stock option plans, 118,944 shares owned by
his wife, to which Mr. Blau disclaims beneficial ownership and 11,626 shares
owned by the Blau, Kramer, Wactlar & Lieberman, P.C. Profit Sharing Plan. Other
members of the firm own an aggregate 1,800 shares of our common stock. For the
year ended June 30, 2000, we paid approximately $324,000 in legal fees to the
firm.
EXPERTS
The consolidated financial statements of Aeroflex Incorporated and subsidiaries
as of June 30, 2000 and 1999, and for each of the years in the three-year period
ended June 30, 2000, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference room at 450 Fifth Street, NW, Washington, D.C., 20549,
and at the SEC's public reference rooms in Chicago, Illinois and New York, New
York. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public on the
SEC's Website at "http://www.sec.gov."
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the shares to be sold in
this offering. This prospectus does not contain all of the information set forth
in the registration statement. We have omitted certain parts of the registration
statement in accordance with the rules and regulations of the SEC. For further
information about us and the shares, you should refer to the registration
statement. Statements contained in this prospectus as to the contents of any
contract or other document are not necessarily complete and, in each instance,
you should refer to the copy of such contract or document filed as an exhibit to
or incorporated by reference in the registration statement. Each statement as to
the contents of such contract or document is qualified in all respects by such
reference. You may obtain a copy of the registration statement, or any of our
other filings with the SEC, from the SEC's principal office in Washington, D.C.
upon payment of the fees prescribed by the SEC, or you may examine the
registration statement without charge at the offices of the SEC described above.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934. The documents we are incorporating by reference are:
-- Our annual report on Form 10-K for our fiscal year ended June 30, 2000;
-- Our quarterly report on Form 10-Q for our fiscal quarter ended September
30, 2000;
-- Our proxy statement filed on October 2, 2000; and
-- The description of our common stock contained in the registration
statement on Form 8-A (File No. 0-02324), including all amendments or
reports filed for the purpose of updating such description.
We also incorporate by reference each of the following documents that we file
with the SEC after the date of this prospectus until the particular offering is
completed or after the date of the initial registration statement and prior to
the effectiveness of the registration statement:
-- Reports filed under Section 13(a) and (c) of the Exchange Act;
-- Definitive proxy or information statements filed under Section 14 of the
-- Exchange Act in connection with any subsequent stockholders' meeting;
and
Any reports filed under Section 15 of the Exchange Act.
11
<PAGE>
You may request a copy of these filings at no cost, by writing or telephoning
our secretary at the following address:
Aeroflex Incorporated
35 South Service Road
Plainview, New York 11803
(516) 694-6700
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
<TABLE>
<S> <C>
SEC Registration Fee. . . . . . . . . . . . . . . . . $3,104
Accounting Fees and Expenses. . . . . . . . . . . . . 3,000
Legal Fees and Expenses . . . . . . . . . . . . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . 8,896
------
Total. . . . . . . . . . . . . . . . . . . . . . . .$20,000
=======
</TABLE>
Item 15. Indemnification of Directors and Officers
Under provisions of the By-Laws of the Company, each person who is or was a
director or officer of the Company may be indemnified by the Company 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 the Company, 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 if a criminal
suit is settled, such a person may be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgements, 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 the Company, 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 the
Company, or if such suit is settled, such a person may 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 the Company except
that if such a person is adjudged to be liable in such suit for negligence or
misconduct in the performance of his duty to the Company, he cannot be made
whole even for expenses unless the court determines that he is fairly and
reasonably entitled to indemnity for such expenses.
The Company and its officers and directors of the Company are covered by
officers and directors liability insurance. The policy coverage is $50,000,000,
which includes reimbursement for costs and fees. There is a maximum deductible
under the policy of $250,000 for each claim. The Company has entered into
Indemnification Agreements with certain of its officers and directors. The
Agreements provide for
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<PAGE>
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 16. Exhibits
4.1 Specimen Common Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Registrant's Registration Statement on Form S-3,
File No. 333-46689)
5 Opinion of Blau, Kramer, Wactlar & Lieberman, P.C.
23.1 Consent of KPMG LLP
23.2 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. (included in
Exhibit 5 hereof)
24 Powers of Attorney (included in the signature pages hereof)
-----------
Item 17. 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.
(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, as amended (the
"Act"), 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,
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<PAGE>
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report to security holders that is specifically
incorporated by reference in the prospectus and to provide such interim
financial information.
(d) 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 public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<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 of the
requirements for filing on Form S-3 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 11th day of January, 2001.
Aeroflex Incorporated
By:/s/ Harvey R. Blau
------------------
Harvey R. Blau
Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below on January 11 , 2001 by the following persons in
the capacities indicated. Each person whose signature appears below also
constitutes and appoints Harvey R. Blau and Michael Gorin, and each of them, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and all other documents in connection therewith, with the Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Signature Title
/s/ Harvey R. Blau
------------------------ Chairman of the Board
Harvey R. Blau (Chief Executive Officer)
/s/ Michael Gorin
------------------------ President and Director
Michael Gorin (Chief Financial Officer and Principal Accounting
Officer)
/s/ Leonard Borow
------------------------ Executive Vice President, Secretary and Director
Leonard Borow (Chief Operating Officer)
/s/ Paul Abecassis
------------------------ Director
Paul Abecassis
/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
________________________ Director
John S. Patton
