Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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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 KEY EMPLOYEE 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)
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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
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<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 4,000,000 shs.(2) $21.375 $85,500,000 $22,572
per share
<FN>
(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the high and low sales price of the Company's common Stock
on the Nasdaq Stock Market on January 10, 2001.
(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.
</FN>
</TABLE>
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<PAGE>
AEROFLEX INCORPORATED
SUMMARY OF AEROFLEX INCORPORATED
KEY EMPLOYEE STOCK OPTION PLAN
In August 2000, in order to attract and retain persons necessary for
Aeroflex's success, its board of directors adopted the Aeroflex Incorporated Key
Employee Stock Option Plan. The plan covers up to 4,000,000 shares of common
stock (as adjusted to give effect to Aeroflex's 2-for-1 stock split in November
2000), pursuant to which officers and employees of Aeroflex and its subsidiaries
are eligible to receive non-qualified stock options. Shares of common stock
issued upon the exercise of options granted pursuant to the plan will generally
be from Aeroflex's authorized but unissued shares or treasury shares. The plan,
which expires on August 16, 2010, will be administered by Aeroflex's board of
directors or a committee designated by the board of directors consisting of two
or more members of the board, all of whom shall be non-employee directors.
Members of each class of the board of directors are elected every three years
for three year terms by Aeroflex stockholders. Members of the committee which
administers the plan may be removed or replaced at any time by the board of
directors. The selection of participants, allotments of shares, determination of
price and other conditions relating to options will be determined by the board
of directors, or the committee, in its sole discretion, subject to the
limitations of the plan.
The plan may be amended, suspended or terminated by the board of directors
or the committee.
Stock options granted under the plan are exercisable for a period of up to
ten years from the date of grant at an exercise price equal to the fair market
value of the Common Stock on the date of the grant.
Options granted pursuant to the plan may not be sold, pledged,
hypothecated, transferred or disposed of in any manner other than by will or by
the laws of descent or distribution or, to the extent permitted by the board or
the committee.
If any optionee ceases to serve as an employee of Aeroflex or any parent
or subsidiary company, he may, but only within two (2) years after the date he
ceases to be employed, exercise his option to the extent that he was entitled to
exercise it as of the date of such termination. To the extent that he was not
entitled to exercise an option at the date of such termination, or he does not
exercise the option (which he was entitled to exercise) within the time
specified therein, the option terminates. Notwithstanding the foregoing, in the
event of the death of an optionee (1) while an employee, or (2) within two (2)
years after termination of all employment (other than for total disability) or
(3) within five (5) years after termination on account of total disability of
all employment, the optionee's estate or any person who acquires the right to
exercise the 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 five(5) year
period from the date of death. In the case of clauses (1) and (3) above, the
option shall be exercisable in full for all the remaining shares covered
thereby, but in the case of clause (2), the option shall be exercisable only to
the extent it was exercisable on the date of such termination of employment or
service. In no case is an option exercisable after its expiration date.
In the event of a change in control (as defined in the plan) of Aeroflex,
at the option of the board or the committee, (a) all options outstanding on the
date of the 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 the 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 (as defined in the plan), 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.
Aeroflex's reports and registration statements filed with the Securities
and Exchange Commission pursuant to the provisions of the Securities Exchange
Act of 1934 are incorporated by reference herein and these documents, as
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well as Aeroflex's annual report to shareholders, its latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended, and
additional information about the plan and its administration, are available upon
written or oral request from the Treasurer of Aeroflex, at its offices at 35
South Service Road, Plainview, New York 11803, (516)694-6700. Aeroflex does not
intend to furnish any reports to participating employees as to the amount and
status of their options under the plan.
FEDERAL INCOME TAX CONSEQUENCES
The following is a brief summary of the Federal income tax consequences as
of the date hereof with respect to options exercised with cash or common stock
or a combination of cash and common stock. This description of the Federal
income tax consequences is based upon law and Treasury interpretations in effect
on the date of this prospectus (including proposed and temporary regulations
which may be changed when finalized), and it should be understood that this
summary is not exhaustive, that the law may change, and further that special
rules may apply with respect to situations not specifically discussed herein.
Careful attention should also be given to state and local tax consequences. As
such, optionees are urged to consult with their own qualified tax advisors.
Exercise of Non-Qualified Options with Cash
No taxable income will be realized by the optionee upon the grant of a
non-qualified option. On exercise, the excess of the fair market value of the
stock at the time of exercise over the option price of such stock will be
compensation and (i) will be taxable at ordinary income tax rates in the year of
exercise, (ii) will be subject to withholding for Federal income tax purposes,
and (iii) generally will be an allowable income tax deduction to Aeroflex. The
optionee's tax basis for stock acquired upon exercise of a non-qualified option
will be equal to the option price paid for the stock plus any amounts included
in income as compensation. Upon the sale of shares acquired pursuant to exercise
of a non-qualified option, the optionee will have long-term or short-term
capital gain or loss depending on the holding period.
If the optionee is subject to restrictions under Section 16(b) of the
Exchange Act at exercise, (i) he will not be taxed at the time of exercise, and
will instead be taxed when the Section 16(b) restrictions lapse (which is deemed
under Treasury regulations to be six months after the date of issuance of the
shares), based on the excess (if any) at that time or, if earlier, at the time
of the sale of such shares, of the fair market value of the shares received over
the option price, and (ii) the holding period for purposes of determining
entitlement to long-term or short-term capital gain or loss, as the case may be,
will commence on the earlier of the date of sale of such shares or the date that
the Section 16(b) restrictions lapse. However, such an optionee may elect under
Section 83(b) of the Internal Revenue Code of 1986, as amended, to be taxed at
the time of exercise of the option, based on the excess (if any) at the time of
exercise of the fair market value of the shares received over the option price,
in which event the holding period will commence on the date of transfer.
Optionees who are subject to Section 16(b) restrictions should consult a
qualified tax advisor regarding the advisability of a Section 83(b) election,
which must be made within 30 days following the exercise of the shares.
Exercise of Non-Qualified Options with Common Stock
Based on a 1980 Revenue Ruling, if shares previously acquired other than
upon exercise of an incentive stock option are surrendered in full or partial
payment of the exercise price of a non-qualified option, then no gain or loss
will be recognized by the optionee, on the date of exercise, for the shares
which have an aggregate fair market value equal to the aggregate fair market
value of the shares surrendered. These shares received are called replacement
shares. The optionee will have a basis in the replacement shares equal to the
basis of the shares surrendered, and the optionee's holding period (for purposes
of determining entitlement to short-term or long-term capital gain or loss
treatment on a subsequent disposition of the Replacement Shares) will generally
include the period during which the surrendered shares were held.
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In the event that the optionee receives any additional shares in addition
to the replacement shares on such exercise, then (i) the excess of the fair
market value of all of the shares received over the sum of the fair market value
of the shares surrendered plus any cash payments made by the optionee on the
exercise of the option will be treated as compensation taxable as ordinary
income (and subject to withholding), (ii) the optionee's basis in the additional
shares will be equal to the sum of the amount taxed as ordinary income on
exercise plus the amount of any cash payments made on exercise, and (iii) the
holding period for the additional shares (for purposes of determining
entitlement to long-term or short-term capital gain or loss treatment on a
subsequent disposition of the additional shares) will begin when such additional
shares are issued to the optionee.
In the absence of new published rulings to the contrary, it would appear
that rules similar to those that apply under the 1980 Revenue Ruling would apply
to the exercise of a non-qualified option using shares previously acquired by
exercising an incentive stock option. Based on the 1980 Revenue Ruling, the
exercise of a non-qualified option using shares previously acquired by
exercising an incentive stock option would not result in a "disqualifying
disposition" of such shares.
Information Reporting
Pursuant to applicable tax regulations, Aeroflex will provide to each
optionee and to the appropriate tax authorities information regarding the
exercises of non-qualified options on Form W-2.
RESTRICTION ON REOFFERS OR RESALES OF COMMON STOCK
ACQUIRED PURSUANT TO THE PLAN
Participants in the plan who receive shares of common stock pursuant to the
exercise of options may from time to time sell all or a part of such common
stock. In some instances, there may be restrictions on the amount and manner of
such sales by reason of pertinent provisions of the securities laws and the
rules thereunder. Optionees should consult with legal counsel about the
securities law implications of the exercise of options and the acquisition or
disposition of shares of common stock under the plan.
Pursuant to Section 16(b) of the Exchange Act, if an optionee, while an
officer, director or ten percent (10%) stockholder of Aeroflex, (i) acquires any
equity security of Aeroflex (other than shares of common stock acquired under
the plan or another stock option plan of Aeroflex if the exercise price of the
option pursuant to which such shares of common stock were acquired does not
exceed the fair market value thereof at the time of exercise), and (ii) within
six months before or after such acquisition sells any equity security of
Aeroflex, including common stock acquired under the plan, then such optionee
will be required to repay to Aeroflex any profit attributable to the two
transactions.
In the event of any inconsistency between this summary and the plan, the
terms of the plan shall govern.
This document constitutes part of a prospectus covering securities that
have been registered under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (d) below:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000;
(c) The Registrant's proxy statement filed on October 2, 2000; and
(d) 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.000- 02324), 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 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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Harvey R. Blau, the Chairman and Chief Executive Officer of the Registrant,
is a member of Blau, Kramer, Wactlar & Lieberman, P.C. As of January 10, 2001,
Mr. Blau owns 2,761,230 shares of the Registrant's common stock, including
options to purchase 2,511,390 shares of common stock granted pursuant to certain
of the Registrant's 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 the Registrant's common stock. For the
year ended June 30, 2000, the Registrant paid approximately $324,000 in legal
fees to the firm.
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
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amounts paid in settlement if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
Registrant, and with respect to any criminal action, had no reasonable cause to
believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of
Registrant, or if such suit is settled, such a person shall be indemnified under
such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
Registrant except that if such a person is adjudicated to be liable in such suit
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 Registrant 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 aggregate
deductible for each loss under the policy of $250,000. The Registrant has
entered into Indemnification Agreements with certain of its officers and
directors. The Agreements provide for reimbursement for all direct and indirect
costs of any type or nature whatsoever (including attorneys' fees and related
disbursements) actually and reasonably incurred in connection with either the
investigation, defense or appeal of a Proceeding, as defined, including amounts
paid in settlement by or on behalf of an indemnitee.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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4.1 Aeroflex Incorporated Key Employee 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 LLP.
24 Powers of Attorney.
Item 9. Undertakings.
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(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;
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(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, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Plainview, New York on the 11th day of January, 2001.
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 January 11, 2001 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
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
