-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NxGaXcZ3iVIbN46KcLs/h0C0qu7SHYnHJ4IiSs4ExK6LuPSrvwp0lFfNXVnHksfc 3ijbfFPFsXoIpmuIERMuRQ== 0000932214-03-000121.txt : 20030908 0000932214-03-000121.hdr.sgml : 20030908 20030908162304 ACCESSION NUMBER: 0000932214-03-000121 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20030908 EFFECTIVENESS DATE: 20030908 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AEROFLEX INC CENTRAL INDEX KEY: 0000002601 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 111974412 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-108606 FILM NUMBER: 03886259 BUSINESS ADDRESS: STREET 1: 35 S SERVICE RD CITY: PLAINVIEW STATE: NY ZIP: 11803 BUSINESS PHONE: 5166946700 MAIL ADDRESS: STREET 1: 35 S SERVICE ROAD CITY: PLAINVIEW STATE: NY ZIP: 11803 FORMER COMPANY: FORMER CONFORMED NAME: ARX INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: AEROFLEX LABORATORIES INC DATE OF NAME CHANGE: 19851119 S-8 1 regstmts-8.txt REGISTRATION STATEMENT FOR OPTIONS FOR EMPLOYEES Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 AEROFLEX INCORPORATED (Exact name of registrant as specified in its charter) DELAWARE 11-1974412 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 35 SOUTH SERVICE ROAD, PLAINVIEW, NEW YORK 11803 (Address of principal executive offices) (Zip Code) AEROFLEX INCORPORATED - OPTIONS FOR EMPLOYEES OF RACAL INSTRUMENTS WIRELESS SOLUTIONS GROUP AND MCE TECHNOLOGIES, INC. (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. KRAMER, COLEMAN, WACTLAR & LIEBERMAN, P.C. 100 JERICHO QUADRANGLE JERICHO, NEW YORK 11753 (516) 822-4820 ----------------------------
CALCULATION OF REGISTRATION FEE 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 Common Stock, par value $.10 710,356 shs.(2) $ 9.335 $6,631,173.26 $ 536.46 per share ===================== =================== =================== ==================== =================
(1) Estimated solely for the purpose of calculating the registration fee, based upon the average of the high and low prices of the Company's Common Stock on the Nasdaq National Market on September 2, 2003. (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 Options. AEROFLEX INCORPORATED SUMMARY OF OPTIONS GRANTED TO EMPLOYEES OF RACAL INSTRUMENTS WIRELESS SOLUTIONS GROUP AND MCE TECHNOLOGIES, INC. In July 2003, Aeroflex Incorporated acquired, through certain of its subsidiaries, the wireless solutions business of Racal Instruments. In September 2003, Aeroflex Incorporated acquired all of the issued and outstanding common stock of MCE Technologies, Inc. We determined that it was advisable, in connection with each acquisition, to grant options to certain employees of Racal and MCE in order to retain people we believe will contribute to our success. Consequently, we granted non-qualified stock options to purchase 200,000 shares to a total of 27 Racal employees and non-qualified stock options to purchase 510,356 shares to a total of 83 MCE employees. All of the stock options, other than one of the options granted to an MCE employee, have a term of ten years from the date of grant. o Options to Racal employees all have the following terms: o an exercise price of $8.10 per share, the fair market value on the date of grant; and o become exercisable 25% on each of the first, second, third and fourth anniversaries of the date of grant. o Options granted to MCE employees have the following terms: o one option for an aggregate 249,000 shares has an exercise price of $2.879 per share and expires on December 10, 2004; o 83 options for an aggregate 261,356 shares have an exercise price of $9.59, the fair market value on the date of grant; o of the above-listed options: o options for an aggregate 316,356 shares are fully vested; and o options for an aggregate 194,000 shares become exercisable 25% on each of the first, second, third and fourth anniversaries of the date of grant. The options 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 and may be exercised, during the lifetime of the optionee, only by the optionee. If any optionee ceases to be an employee, he may, for a three (3) month period from the date he stops being an employee, exercise his options to the extent that the options were exercisable as of the date of his termination. To the extent that an optionee 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 three month period, the option terminates. If an optionee becomes disabled while he is an employee, the optionee may exercise his option at any time within the period of one year from the date of termination of his employment due to the disability. In each case the option will be exercisable only to the extent it was exercisable on the date of such termination of employment. If an optionee dies while he is an employee or within one year after termination due to total disability, 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 his option at any time within the period of three years from the date of his death and as to all of the shares subject to the option. If an optionee dies within the three month period following his termination, other than termination due to total disability, 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 his option at any time within the period of three years from the date of his death only to the extent it was exercisable on the date of such termination of employment. In the event of a termination of the optionee "for cause", as defined in the options, each option immediately terminates. -2- In the event of a change in control (as defined in the option agreement) of our company, at the option of Aeroflex's Board of Directors, all options become immediately and fully exercisable. Our reports and registration statements filed with the Securities and Exchange Commission pursuant to the provisions of the Securities Exchange Act of 1934 that are incorporated by reference herein and our latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended, are available upon written or oral request from our Secretary or Treasurer, at our offices at Aeroflex Incorporated, 35 South Service Road, Plainview, New York 11803. We do not intend to furnish any reports to participating employees as to the amount and status of their options. FEDERAL INCOME TAX CONSEQUENCES The following is a brief summary of the principal federal income tax consequences under current federal income tax laws relating to the options. This summary is not intended to be exhaustive. Among other things, it does not describe state, local or foreign income tax consequences. We understand that under present federal tax laws, the grant of stock options creates no tax consequences for an optionee or for us. Upon exercising a nonqualified stock option, the optionee must generally recognize ordinary income equal to the "spread" between the exercise price and the fair market value of the common stock on the date of exercise. The fair market value of the shares on the date of exercise will constitute the tax basis for the shares for computing gain or loss on their subsequent sale. Compensation that is subject to a substantial risk of forfeiture generally is not included in income until the risk of forfeiture lapses. Under current law, optionees who are either directors, officers or more than 10% stockholders are subject to the "short-swing" insider trading restrictions of Section 16(b) of the Exchange Act of 1934. The Section 16(b) restriction is considered a substantial risk of forfeiture for tax purposes. Consequently, the time of recognition of compensation income and its amount will be determined when the restriction ceases to apply. The Section 16(b) restriction lapses six months after the date of exercise. Nevertheless, an optionee who is subject to the Section 16(b) restriction is entitled to elect to recognize income on the date of exercise of the option. The election must be made within 30 days of the date of exercise. If the election is made, the results are the same as if the optionee were not subject to the Section 16(b) restriction. If permitted by our board of directors and if the optionee pays the exercise price of an option in whole or in part with previously-owned shares of common stock, the optionee's tax basis and holding period for the newly-acquired shares is determined as follows: As to a number of newly-acquired shares equal to the number of previously-owned shares used by the optionee to pay the exercise price, the optionee's tax basis and holding period for the previously-owned shares will carry over to the newly- acquired shares on a share-for-share basis, thereby deferring any gain inherent in the previously-owned shares. As to each remaining newly acquired share, the optionee's tax basis will equal the fair market value of the share on the date of exercise and the optionee's holding period will begin on the day after the exercise date. The optionee's compensation income and our deduction will not be affected by whether the exercise price is paid in cash or in shares of common stock. We will generally be entitled to a deduction for federal income tax purposes at the same time and in the same amount as an optionee is required to recognize ordinary compensation income. We will be required to comply with applicable federal income tax withholding and information reporting requirements with respect to the amount of ordinary compensation income recognized by the optionee. If -3- our board of directors permits shares of common stock to be used to satisfy tax withholding, such shares will be valued at their fair market value on the date of exercise. When a sale of the acquired shares occurs, an optionee will recognize capital gain or loss equal to the difference between the sales proceeds and the tax basis of the shares. Such gain or loss will be treated as capital gain or loss if the shares are capital assets. The capital gain or loss will be long-term capital gain or loss treatment if the shares have been held for more than 12 months. There will be no tax consequences to us in connection with a sale of shares acquired under an option. RESTRICTION ON REOFFERS OR RESALES OF COMMON STOCK ACQUIRED UPON THE EXERCISE OF OPTIONS Employees who receive shares of our common stock upon 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 received upon the exercise of options. Pursuant to Section 16(b) of the Exchange Act, if an optionee, while an officer, director or holder of ten percent (10%) or more of our common stock, (i) acquires any of our equity securities (other than shares of common stock acquired upon the exercise of the options granted to employees or another of our stock option plans, if the grant is exempt from Section 16(b)), and (ii) within six months before or after such acquisition sells any of our equity securities, including common stock acquired upon the exercise of options, then the optionee will be required to repay to us any profit attributable to the two transactions. Further, reoffers and resales of common stock received upon the exercise of options granted in connection with the MCE or Racal acquisitions by participants who are our "affiliates" must be made pursuant to a separate prospectus or pursuant to the provisions of Rule 144 under the Securities Act or pursuant to another applicable exemption from the registration requirements of the Securities Act. Such reoffers or resales may not be made pursuant to this prospectus. This document constitutes part of a prospectus covering securities that have been registered under the Securities Act of 1933. -4- 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, 2002 (except for Aeroflex's consolidated financial statements as of and for each of the years in the three-year period ended June 30, 2002 and the related schedule, which have been superceded by the consolidated financial statements and related schedule included in Aeroflex's current report on Form 8-K, filed on July 21, 2003); (b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended September 30, 2002, December 31, 2002 and March 31, 2003; (c) The Registrant's Reports on Form 8-K and 8-K/A filed on August 2, 2002, December 23, 2002, July 2, 2003, July 21, 2003 and August 5, 2003; (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. ------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. --------------------------------------- None. 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. II-1 Under such law, to the extent that such person is successful on the merits of defense of a suit or proceeding brought against him by reason of the fact that he is a director or officer of Registrant, he shall be indemnified against expenses (including attorneys' fees) reasonably incurred in connection with such action. If unsuccessful in defense of a third-party civil suit or a criminal suit is settled, such a person shall be indemnified under such law against both (1) expenses (including attorneys' fees) and (2) judgments, fines and amounts paid in settlement if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of Registrant, and with respect to any criminal action, had no reasonable cause to believe his conduct was unlawful. If unsuccessful in defense of a suit brought by or in the right of Registrant, or if such suit is settled, such a person shall be indemnified under such law only against expenses (including attorneys' fees) incurred in the defense or settlement of such suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of Registrant except that if such a person is adjudicated to be liable in such suit 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 $1,000,000. 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. -------- 4.1 Form of MCE Option Agreement 4.2 Form of fully-vested MCE Option Agreement 4.3 Form of Racal Option Agreement 5 Opinion and consent of Kramer, Coleman, Wactlar & Lieberman, P.C. 23.1 Consent of Kramer, Coleman, Wactlar & Lieberman, P.C. - included in their opinion filed as Exhibit 5. 23.2 Consent of KPMG LLP. 24 Powers of Attorney. II-2 Item 9. Undertakings. ------------ (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (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 II-3 counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against policy as expressed in the Act and will be governed by final adjudication of such issue. II-4 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 8th day of September, 2003. AEROFLEX INCORPORATED By: /s/Michael Gorin -------------------------------------- Michael Gorin President and Director (Chief Financial Officer and Principal Accounting Officer) POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed on September 8, 2003 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) - ------------------------------ Director Paul Abecassis /s/Milton Brenner - ------------------------------ Director Milton Brenner /s/Ernest R. Courchene, Jr. - ------------------------------ Director Ernest E. Courchene, Jr. /s/Donald S. Jones - ------------------------------ Director Donald S. Jones /s/Eugene Novikoff - ------------------------------ Director Eugene Novikoff /s/John S. Patton - ------------------------------ Director John S. Patton /s/Joseph Pompeo - ------------------------------ Director Joseph Pompeo II-5 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 - ------- ------------------- ----------------------- 4.1 Form of MCE Option Agreement 4.2 Form of fully-vested MCE Option Agreement 4.3 Form of Racal Option Agreement 5 Opinion and Consent of Counsel................ 23.1 Consent of Counsel............................ See Exhibit 5 23.2 Consent of KPMG LLP........................... 24 Powers of Attorney............................ See signature page II-6 EX-4.1 3 exh4-1.txt MCE STOCK OPTION AGREEMENT Exhibit 4.1 STOCK OPTION AGREEMENT AGREEMENT made the __ day of September, 2003 between AEROFLEX INCORPORATED, a Delaware corporation, (hereinafter called the "Company") and ___________ (hereinafter called the "Optionee"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Company and MCE Technologies, Inc. entered into a Merger Agreement dated as of June 27, 2003, pursuant to which the Company has acquired (the "Acquisition") all of the outstanding Common Stock of MCE Technologies, Inc.("MCE"); and WHEREAS, the Optionee is currently an employee of MCE, and the Company is desirous of inducing or encouraging the Optionee to continue to remain in the employ of MCE after the Acquisition by offering the Optionee certain incentives or rewards to do so; and WHEREAS, the Board of Directors of the Company has determined that Optionee is eligible for, and should be granted an option as hereinbelow provided, and Optionee desires to have such option; NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. GRANT AND EXERCISE OF OPTION. The Company hereby grants to Optionee an option to purchase a total of _________(_____)shares of the authorized and unissued Common Stock of the Company, having a par value of $.10 per share, at the price of $____ per share, upon and subject to the following terms and conditions: (a) The within option may be exercised on or before September __, 2013 (the "Expiration Date") and, within such period, only at the following times and in the following amounts: (i) After the expiration of one (1) year from the date of this Agreement, the option may be exercised to the extent of not more than TWENTY-FIVE(25%) PERCENT of the shares granted in Paragraph 1 hereof; (ii) After the expiration of two (2) years from the date of this Agreement, the option may be exercised to the extent of not more than FIFTY(50%) PERCENT of the shares granted in Paragraph 1 hereof; (iii) After the expiration of three(3) years from the date of this Agreement, the option may be exercised to the extent of not more than SEVENTY-FIVE(75%) PERCENT of the shares granted in Paragraph 1 hereof; and (iv) After the expiration of four (4) years from the date of this Agreement, the option may be exercised to the extent of not more than ONE HUNDRED (100%) PERCENT of the shares granted in Paragraph 1 hereof. (b) The right to exercise set forth in Paragraph 1(a)(i),(ii), (iii) and (iv) shall, at the option of the Board of Directors, be accelerated to provide for immediate exercise in the event of a change in control of the Company. (1) For purposes of this Agreement, a change in control of the Company, or in any person directly or indirectly controlling the Company, shall mean: (i) a change in control as such term is presently defined in Regulation 240.12b-2 under the Securities and Exchange Act of 1934; or (ii) 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 ten (10%) percent of the voting power of the Company's then outstanding securities; or (iii) if during any period of two (2) consecutive years during the term of this Agreement, individuals who at the beginning of such period constitute the Board of Directors, cease for any reason to constitute at least a majority thereof, unless the election of each director who is not a director at the beginning of such period has been approved in advance by directors representing at least two-third (2/3) of the directors then in office who were directors at the beginning of the period. (2) Notwithstanding the foregoing, this paragraph shall have no applicability to any change of control as defined hereunder in the event that: (i) a majority of the Board of Directors in office immediately prior to the event or events resulting in the change of control determine that such change is in the best interests of the Company; or (ii) a majority of the Board of Directors in office immediately prior to the event or events resulting in the change of control determine that such change is not in the best interests of the Company; and thereafter Employee cooperates, assists or acts, directly or indirectly, on behalf of or in connection with the party seeking to acquire control of the Company; it being expressly understood and agreed that in the event the within option is not exercised on or before the Expiration Date, as to any part or all of the shares which may be purchased under the option, the right to purchase such shares shall completely lapse; (c) Each exercise of the within option shall be by delivery to the Company, at its then principal office (attention of the Secretary) of written notice stating the number of shares to be purchased, accompanied by payment in full of the option price of such shares. The option price shall be payable in United States dollars in cash or by certified check, bank draft, postal or express money order; provided, however, that in lieu of payment in full in cash, the Optionee may, with the approval of the Board of Directors, exercise his option by tendering to the Company shares of the Company's Common Stock owned by him and having a fair market value (as determined by the Board of Directors in its absolute discretion) equal to the cash exercise price (or the balance thereof) applicable to his option. (d) In the event of each exercise of the within option, the Company shall deliver to the Optionee, personally or at the Optionee's designated address, as soon as practicable, a certificate made out to the Optionee for the number of shares being purchased. 2. NON-TRANSFERABILITY OF OPTION. The option granted under this Agreement shall not be transferred otherwise than by will or the laws of descent and distribution and shall be exercisable during Optionee's lifetime only by the Optionee. No option granted hereunder shall be subject to execution, attachment, pledge, hypothecation, or other process. 3. DEATH, RETIREMENT AND TERMINATION OF EMPLOYMENT. Any Option, the period of which has not expired, shall terminate at the time of death of the Optionee, or at the time of retirement or termination for any reason of such person's employment or service, including service as a consultant, and no share of Common Stock may thereafter be delivered pursuant to such Option, except that: (a) Upon retirement or termination of employment or service (other than by death, disability, or termination for cause), an Optionee may within three (3) months after the date of such retirement or termination, purchase all or part of the shares with respect to which the Option was exercisable on the date of such termination, in accordance herewith, but in no event after the Expiration Date; (b) Upon the termination of employment or service for cause, this Option shall immediately terminate. For purposes of this Section, "cause" shall mean (i) willful disregard of duties and/or gross insubordination, (ii) habitual absence from employment,(iii) the commission of fraud, misrepresentation or embezzlement; or (iv) as defined in any employment agreement between the Company or any affiliate of the Company and the Optionee; (c) Upon the "disability" of any Optionee, the Optionee may within one (1) year after the date of such termination of employment, but in no event after the Expiration Date, purchase all or part of the shares with respect to which the Option was exercisable on the date of such termination. For purposes of this section, the term "disability" shall mean a physical or mental disability as defined in Section 105 of the Internal Revenue Code of 1986, as amended; (d) Upon the death of the Optionee during his employment or within one (1) year after termination due to "disability", the person or persons to whom such Optionee's rights under the Option are transferred by will or the laws of descent and distribution may, within three (3) years after the date of such Optionee's death, but in no event after the Expiration Date, purchase all or any part of the shares subject to this Option. Upon the death of the Optionee within three (3) months after any termination of employment under clause 3(a) of this Option, the person or persons to whom such Optionee's rights under the Option are transferred by will or the laws of descent and distribution may, within three (3) years after the date of such Optionee's death, but in no event after the Expiration Date, purchase all or any part of the shares with respect to which the Option was exercisable on the date of termination of employment or service in accordance herewith. 4. DILUTION AND OTHER ADJUSTMENTS. In the event that there is any change in the stock subject to the within option through merger, consolidation or reorganization, or in the event of any dividend in stock of the same class to holders of issued and outstanding stock of the same class, or the issuance to the holders of such stock of rights to subscribe to stock of the same class, or in the event of any split, combination or exchange of stock or other change in the capital structure of the Company, the Board of Directors of the Company shall make such adjustments in the within option as it may deem equitable to prevent dilution or enlargement of the rights granted to the Optionee hereunder, and such adjustments, when so made, shall be conclusive and binding on the parties to this Agreement; and provided, further, that nothing herein shall be construed as limiting or preventing the Company from exercising any right or power to make or enter into adjustments, reclassifications, reorganizations, or changes in its capital or business structure or to merge, consolidate or dissolve or to sell or transfer all or any part of its business or assets. 5. REGISTRATION. The Company shall cause a Registration Statement on Form S-8 covering the Shares of the Common Stock of the Company issuable upon the exercise of the Option granted hereunder to be filed with the Securities and Exchange Commission and to become effective under the Securities Act of 1933, as amended, prior to the first anniversary date of this Agreement; provided, however, that if the Company is not permitted for any reason to register such Common Stock pursuant to a Registration Statement on Form S-8, the Company shall use its best efforts to cause a Registration Statement on Form S-3 covering the Common Stock to be filed with the Securities and Exchange Commission and to become effective under the Securities Act of 1933, as amended, prior to the first anniversary date of this Agreement. 6. REQUIREMENTS OF LAW. (a) If any law, regulation of the Securities and Exchange Commission, or any regulation of any other commission or agency having jurisdiction shall require the Company or the Optionee to take any action with respect to the shares of stock to be acquired upon the exercise of the within option, then the date upon which the Company shall deliver or cause to be delivered the certificate or certificates for the shares of stock shall be postponed until full compliance has been made with all such requirements of law or regulation. (b) Neither the Optionee nor any person or persons referred to in Paragraph 3 above, as the case may be, shall be, or shall be deemed to be, a holder of any shares subject to the within option unless and until certificates for such shares are delivered to him or them in accordance with this Agreement, and no certificates may be delivered until the shares represented thereby are paid in full. 7. PURCHASE FOR INVESTMENT. The Optionee represents, on behalf of himself and the person or persons referred to in Paragraph 3 above, that any shares of the Company purchased pursuant to this Agreement will be acquired in good faith for investment and not for resale or distribution, and Optionee on behalf of himself and said person or persons, agrees that each notice of the exercise of the within option shall contain or be accompanied by a representation in writing signed by him or said person or persons, as the case may be, in form satisfactory to the Company, that the shares of the Company to be purchased pursuant to such notice are being so acquired and will not be sold except in compliance with applicable securities laws. The requirements of this Paragraph 7 may be waived by the Company if the Company shall have received an opinion of its counsel that such representation is not required. 8. ACKNOWLEDGMENT. Optionee represents that he has read and understands the terms and conditions of this Agreement and agrees to be bound thereby. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. AEROFLEX INCORPORATED By: ------------------- ---------------------- , Optionee ------------ EX-4.2 4 exh4-2.txt FULLY-VESTED MCE OPTION AGREEMENT Exhibit 4.2 STOCK OPTION AGREEMENT AGREEMENT made the __ day of September, 2003 between AEROFLEX INCORPORATED, a Delaware corporation, (hereinafter called the "Company") and __________ (hereinafter called the "Optionee"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Company and MCE Technologies, Inc. entered into a Merger Agreement dated as of June 27, 2003, pursuant to which the Company has acquired (the "Acquisition") all of the outstanding Common Stock of MCE Technologies, Inc.("MCE"); and WHEREAS, the Optionee is currently an employee of MCE, and the Company is desirous of inducing or encouraging the Optionee to continue to remain in the employ of MCE after the Acquisition by offering the Optionee certain incentives or rewards to do so; and WHEREAS, the Board of Directors of the Company has determined that Optionee is eligible for, and should be granted an option as hereinbelow provided, and Optionee desires to have such option; NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. GRANT AND EXERCISE OF OPTION. (a) The Company hereby grants to Optionee an option to purchase a total of _________(_____)shares of the authorized and unissued Common Stock of the Company, having a par value of $.10 per share, at the price of $____ per share. The within option may be exercised in full on or before September __, 2013 (the "Expiration Date"). (b) Each exercise of the within option shall be by delivery to the Company, at its then principal office (attention of the Secretary) of written notice stating the number of shares to be purchased, accompanied by payment in full of the option price of such shares. The option price shall be payable in United States dollars in cash or by certified check, bank draft, postal or express money order; provided, however, that in lieu of payment in full in cash, the Optionee may, with the approval of the Board of Directors, exercise his option by tendering to the Company shares of the Company's Common Stock owned by him and having a fair market value (as determined by the Board of Directors in its absolute discretion) equal to the cash exercise price (or the balance thereof) applicable to his option. (c) In the event of each exercise of the within option, the Company shall deliver to the Optionee, personally or at the Optionee's designated address, as soon as practicable, a certificate made out to the Optionee for the number of shares being purchased. 2. NON-TRANSFERABILITY OF OPTION. The option granted under this Agreement shall not be transferred otherwise than by will or the laws of descent and distribution and shall be exercisable during Optionee's lifetime only by the Optionee. No option granted hereunder shall be subject to execution, attachment, pledge, hypothecation, or other process. 3. DEATH, RETIREMENT AND TERMINATION OF EMPLOYMENT. Any Option, the period of which has not expired, shall terminate at the time of death of the Optionee, or at the time of retirement or termination for any reason of such person's employment or service, including service as a consultant, and no share of Common Stock may thereafter be delivered pursuant to such Option, except that: (a) Upon retirement or termination of employment or service (other than by death, disability, or termination for cause), an Optionee may within three (3) months after the date of such retirement or termination, purchase all or part of the shares with respect to which the Option was exercisable on the date of such termination, in accordance herewith, but in no event after the Expiration Date; (b) Upon the termination of employment or service for cause, this Option shall immediately terminate. For purposes of this Section, "cause" shall mean (i) willful disregard of duties and/or gross insubordination, (ii) habitual absence from employment,(iii) the commission of fraud, misrepresentation or embezzlement; or (iv) as defined in any employment agreement between the Company or any affiliate of the Company and the Optionee; (c) Upon the "disability" of any Optionee, the Optionee may within one (1) year after the date of such termination of employment, but in no event after the Expiration Date, purchase all or part of the shares with respect to which the Option was exercisable on the date of such termination. For purposes of this section, the term "disability" shall mean a physical or mental disability as defined in Section 105 of the Internal Revenue Code of 1986, as amended; (d) Upon the death of the Optionee during his employment or within one (1) year after termination due to "disability", the person or persons to whom such Optionee's rights under the Option are transferred by will or the laws of descent and distribution may, within three (3) years after the date of such Optionee's death, but in no event after the Expiration Date, purchase all or any part of the shares subject to this Option. Upon the death of the Optionee within three (3) months after any termination of employment under clause 3(a) of this Option, the person or persons to whom such Optionee's rights under the Option are transferred by will or the laws of descent and distribution may, within three (3) years after the date of such Optionee's death, but in no event after the Expiration Date, purchase all or any part of the shares with respect to which the Option was exercisable on the date of termination of employment or service in accordance herewith. 4. DILUTION AND OTHER ADJUSTMENTS. In the event that there is any change in the stock subject to the within option through merger, consolidation or reorganization, or in the event of any dividend in stock of the same class to holders of issued and outstanding stock of the same class, or the issuance to the holders of such stock of rights to subscribe to stock of the same class, or in the event of any split, combination or exchange of stock or other change in the capital structure of the Company, the Board of Directors of the Company shall make such adjustments in the within option as it may deem equitable to prevent dilution or enlargement of the rights granted to the Optionee hereunder, and such adjustments, when so made, shall be conclusive and binding on the parties to this Agreement; and provided, further, that nothing herein shall be construed as limiting or preventing the Company from exercising any right or power to make or enter into adjustments, reclassifications, reorganizations, or changes in its capital or business structure or to merge, consolidate or dissolve or to sell or transfer all or any part of its business or assets. 5. REGISTRATION. The Company shall cause a Registration Statement on Form S-8 covering the Shares of the Common Stock of the Company issuable upon the exercise of the Option granted hereunder to be filed with the Securities and Exchange Commission and to become effective under the Securities Act of 1933, as amended, prior to the first anniversary date of this Agreement; provided, however, that if the Company is not permitted for any reason to register such Common Stock pursuant to a Registration Statement on Form S-8, the Company shall use its best efforts to cause a Registration Statement on Form S-3 covering the Common Stock to be filed with the Securities and Exchange Commission and to become effective under the Securities Act of 1933, as amended, prior to the first anniversary date of this Agreement. 6. REQUIREMENTS OF LAW. (a) If any law, regulation of the Securities and Exchange Commission, or any regulation of any other commission or agency having jurisdiction shall require the Company or the Optionee to take any action with respect to the shares of stock to be acquired upon the exercise of the within option, then the date upon which the Company shall deliver or cause to be delivered the certificate or certificates for the shares of stock shall be postponed until full compliance has been made with all such requirements of law or regulation. (b) Neither the Optionee nor any person or persons referred to in Paragraph 3 above, as the case may be, shall be, or shall be deemed to be, a holder of any shares subject to the within option unless and until certificates for such shares are delivered to him or them in accordance with this Agreement, and no certificates may be delivered until the shares represented thereby are paid in full. 7. PURCHASE FOR INVESTMENT. The Optionee represents, on behalf of himself and the person or persons referred to in Paragraph 3 above, that any shares of the Company purchased pursuant to this Agreement will be acquired in good faith for investment and not for resale or distribution, and Optionee on behalf of himself and said person or persons, agrees that each notice of the exercise of the within option shall contain or be accompanied by a representation in writing signed by him or said person or persons, as the case may be, in form satisfactory to the Company, that the shares of the Company to be purchased pursuant to such notice are being so acquired and will not be sold except in compliance with applicable securities laws. The requirements of this Paragraph 7 may be waived by the Company if the Company shall have received an opinion of its counsel that such representation is not required. 8. ACKNOWLEDGMENT. Optionee represents that he has read and understands the terms and conditions of this Agreement and agrees to be bound thereby. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. AEROFLEX INCORPORATED By: ------------------------- ---------------------------- , Optionee ------------------ EX-4.3 5 exh4-3.txt RACAL OPTION AGREEMENT Exhibit 4.3 STOCK OPTION AGREEMENT AGREEMENT made the 13th day of August 2003, between AEROFLEX INCORPORATED, a Delaware corporation, (hereinafter called the "Company") and _______________ (hereinafter called the "Optionee"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, in July 2003, Aeroflex Incorporated acquired, through certain of its subsidiaries, the wireless solutions business of Racal Instruments Ltd. and certain of its affiliates (collectively, "Racal"); and WHEREAS, the Optionee is currently or formerly an employee of Racal, and the Company is desirous of inducing or encouraging the Optionee to become an employee of the Company or one of its affiliates after the Acquisition by offering the Optionee certain incentives or rewards to do so; and WHEREAS, the Board of Directors of the Company has determined that Optionee is eligible for, and should be granted an option as hereinbelow provided, and Optionee desires to have such option; NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. GRANT AND EXERCISE OF OPTION. The Company hereby grants to Optionee an option to purchase a total of ___________(_____) shares of the authorized and unissued Common Stock of the Company, having a par value of $.10 per share, at the price of $8.10 per share, upon and subject to the following terms and conditions: (a) The within option may be exercised on or before August 12, 2013(the "Expiration Date") and, within such period, only at the following times and in the following amounts: (i) After the expiration of one (1) year from the date of this Agreement, the option may be exercised to the extent of not more than TWENTY-FIVE(25%) PERCENT of the shares granted in Paragraph 1 hereof; (ii) After the expiration of two (2) years from the date of this Agreement, the option may be exercised to the extent of not more than FIFTY(50%) PERCENT of the shares granted in Paragraph 1 hereof; (iii) After the expiration of three(3) years from the date of this Agreement, the option may be exercised to the extent of not more than SEVENTY-FIVE(75%) PERCENT of the shares granted in Paragraph 1 hereof; and (iv) After the expiration of four (4) years from the date of this Agreement, the option may be exercised to the extent of not more than ONE HUNDRED (100%) PERCENT of the shares granted in Paragraph 1 hereof. (b) The right to exercise set forth in Paragraph 1(a)(i), (ii),(iii) and (iv) shall , at the option of the Board of Directors, be accelerated to provide for immediate exercise, in the event of a change in control of the Company. (1) For purposes of this Agreement, a change in control of the Company, or in any person directly or indirectly controlling the Company, shall mean: (i) a change in control as such term is presently defined in Regulation 240.12b-2 under the Securities and Exchange Act of 1934; or (ii) 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 ten (10%) percent of the voting power of the Company's then outstanding securities; or (iii) if during any period of two (2) consecutive years during the term of this Agreement, individuals who at the beginning of such period constitute the Board of Directors, cease for any reason to constitute at least a majority thereof, unless the election of each director who is not a director at the beginning of such period has been approved in advance by directors representing at least two-third (2/3) of the directors then in office who were directors at the beginning of the period. (2) Notwithstanding the foregoing, this paragraph shall have no applicability to any change of control as defined hereunder in the event that: (i) a majority of the Board of Directors in office immediately prior to the event or events resulting in the change of control determine that such change is in the best interests of the Company; or (ii) a majority of the Board of Directors in office immediately prior to the event or events resulting in the change of control determine that such change is not in the best interests of the Company; and thereafter Employee cooperates, assists or acts, directly or indirectly, on behalf of or in connection with the party seeking to acquire control of the Company; it being expressly understood and agreed that in the event the within option is not exercised on or before the Expiration Date, as to any part or all of the shares which may be purchased under the option, the right to purchase such shares shall completely lapse; (c) Each exercise of the within option shall be by delivery to the Company, at its then principal office (attention of the Secretary) of written notice stating the number of shares to be purchased, accompanied by payment in full of the option price of such shares. The option price shall be payable in United States dollars in cash or by certified check, bank draft, postal or express money order; provided, however, that in lieu of payment in full in cash, the Optionee may, with the approval of the Board of Directors, exercise his option by tendering to the Company shares of the Company's Common Stock owned by him and having a fair market value (as determined by the Board of Directors in its absolute discretion) equal to the cash exercise price (or the balance thereof) applicable to his option. (d) In the event of each exercise of the within option, the Company shall deliver to the Optionee, personally or at the Optionee's designated address, as soon as practicable, a certificate made out to the Optionee for the number of shares being purchased. 2. NON-TRANSFERABILITY OF OPTION. The option granted under this Agreement shall not be transferred otherwise than by will or the laws of descent and distribution and shall be exercisable during Optionee's lifetime only by the Optionee. No option granted hereunder shall be subject to execution, attachment, pledge, hypothecation, or other process. 3. DEATH, RETIREMENT AND TERMINATION OF EMPLOYMENT. Any Option, the period of which has not expired, shall terminate at the time of death of the Optionee, or at the time of retirement or termination for any reason of such person's employment or service, including service as a consultant, and no share of Common Stock may thereafter be delivered pursuant to such Option, except that: (a) Upon retirement or termination of employment or service (other than by death, disability, or termination for cause), an Optionee may within three (3) months after the date of such retirement or termination, purchase all or part of the shares with respect to which the Option was exercisable on the date of such termination, in accordance herewith, but in no event after the Expiration Date; (b) Upon the termination of employment or service for cause, this Option shall immediately terminate. For purposes of this Section, "cause" shall mean (i) willful disregard of duties and/or gross insubordination, (ii) habitual absence from employment,(iii) the commission of fraud, misrepresentation or embezzlement; or (iv) as defined in any employment agreement between the Company or any affiliate of the Company and the Optionee; (c) Upon the "disability" of any Optionee, the Optionee may within one (1) year after the date of such termination of employment, but in no event after the Expiration Date, purchase all or part of the shares with respect to which the Option was exercisable on the date of such termination. For purposes of this section, the term "disability" shall mean a physical or mental disability as defined in Section 105 of the Internal Revenue Code of 1986, as amended; (d) Upon the death of the Optionee during his employment or within one (1) year after termination due to "disability", the person or persons to whom such Optionee's rights under the Option are transferred by will or the laws of descent and distribution may, within three (3) years after the date of such Optionee's death, but in no event after the Expiration Date, purchase all or any part of the shares subject to this Option. Upon the death of the Optionee within three (3) months after any termination of employment under clause 3(a) of this Option, the person or persons to whom such Optionee's rights under the Option are transferred by will or the laws of descent and distribution may, within three (3) years after the date of such Optionee's death, but in no event after the Expiration Date, purchase all or any part of the shares with respect to which the Option was exercisable on the date of termination of employment or service in accordance herewith. 4. DILUTION AND OTHER ADJUSTMENTS. In the event that there is any change in the stock subject to the within option through merger, consolidation or reorganization, or in the event of any dividend in stock of the same class to holders of issued and outstanding stock of the same class, or the issuance to the holders of such stock of rights to subscribe to stock of the same class, or in the event of any split, combination or exchange of stock or other change in the capital structure of the Company, the Board of Directors of the Company shall make such adjustments in the within option as it may deem equitable to prevent dilution or enlargement of the rights granted to the Optionee hereunder, and such adjustments, when so made, shall be conclusive and binding on the parties to this Agreement; and provided, further, that nothing herein shall be construed as limiting or preventing the Company from exercising any right or power to make or enter into adjustments, reclassifications, reorganizations, or changes in its capital or business structure or to merge, consolidate or dissolve or to sell or transfer all or any part of its business or assets. 5. REGISTRATION. The Company shall cause a Registration Statement on Form S-8 covering the Shares of the Common Stock of the Company issuable upon the exercise of the Option granted hereunder to be filed with the Securities and Exchange Commission and to become effective under the Securities Act of 1933, as amended, prior to the first anniversary date of this Agreement; provided, however, that if the Company is not permitted for any reason to register such Common Stock pursuant to a Registration Statement on Form S-8, the Company shall use its best efforts to cause a Registration Statement on Form S-3 covering the Common Stock to be filed with the Securities and Exchange Commission and to become effective under the Securities Act of 1933, as amended, prior to the first anniversary date of this Agreement. 6. REQUIREMENTS OF LAW. (a) If any law, regulation of the Securities and Exchange Commission, or any regulation of any other commission or agency having jurisdiction shall require the Company or the Optionee to take any action with respect to the shares of stock to be acquired upon the exercise of the within option, then the date upon which the Company shall deliver or cause to be delivered the certificate or certificates for the shares of stock shall be postponed until full compliance has been made with all such requirements of law or regulation. (b) Neither the Optionee nor any person or persons referred to in Paragraph 3 above, as the case may be, shall be, or shall be deemed to be, a holder of any shares subject to the within option unless and until certificates for such shares are delivered to him or them in accordance with this Agreement, and no certificates may be delivered until the shares represented thereby are paid in full. 7. PURCHASE FOR INVESTMENT. The Optionee represents, on behalf of himself and the person or persons referred to in Paragraph 3 above, that any shares of the Company purchased pursuant to this Agreement will be acquired in good faith for investment and not for resale or distribution, and Optionee on behalf of himself and said person or persons, agrees that each notice of the exercise of the within option shall contain or be accompanied by a representation in writing signed by him or said person or persons, as the case may be, in form satisfactory to the Company, that the shares of the Company to be purchased pursuant to such notice are being so acquired and will not be sold except in compliance with applicable securities laws. The requirements of this Paragraph 7 may be waived by the Company if the Company shall have received an opinion of its counsel that such representation is not required. 8. ACKNOWLEDGMENT. Optionee represents that he has read and understands the terms and conditions of this Agreement and agrees to be bound thereby. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. AEROFLEX INCORPORATED By: ------------------- ---------------------- , Optionee ------------ EX-5 6 exh5.txt OPINION AND CONSENT OF COUNSEL Exhibit 5 September 8, 2003 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Aeroflex Incorporated Registration Statement on Form S-8 Gentlemen: Reference is made to the filing by Aeroflex Incorporated (the "Corporation") of a Registration Statement on Form S-8 with the Securities and Exchange Commission pursuant to the provisions of the Securities Act of 1933, as amended, covering the registration of 710,356 shares of the Corporation's Common Stock, $.10 par value per share, in connection with the issuance of options to various employees of Racal Instruments Wireless Solutions Group and MCE Technologies, Inc. As counsel for the Corporation, we have examined its corporate records, including its Certificate of Incorporation, as amended, By-Laws, its corporate minutes, the form of its Common Stock certificate, the forms of option agreement and such other documents as we have deemed necessary or relevant under the circumstances. Based upon our examination, we are of the opinion that: 1. The Corporation is duly organized and validly existing under the laws of the State of Delaware. 2. There have been reserved for issuance by the Board of Directors of the Corporation 710,356 shares of its Common Stock, $.10 par value per share. The shares of the Corporation's Common Stock, when issued pursuant to the exercise of options granted to Racal and MCE employees, will be validly authorized, legally issued, fully paid and non-assessable. We hereby consent to be named in the Registration Statement and in the Prospectus which constitutes a part thereof as counsel of the Corporation, and we hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, KRAMER, COLEMAN, WACTLAR & LIEBERMAN, P.C. EX-23.2 7 exh23-2.txt CONSENT OF INDEPENDENT AUDITORS Exhibit 23.2 Consent of Independent Auditors The Board of Directors Aeroflex Incorporated: We consent to the incorporation by reference of our report dated August 12, 2002, except for note 16, which is as of February 14, 2003, on the consolidated balance sheets of Aeroflex Incorporated and subsidiaries as of June 30, 2002, and the related consolidated statements of operations, stockholders' equity and comprehensive income and cash flows and related schedule for each of the years in the three-year period ended June 30, 2002, which report appears in the Form 8-K of Aeroflex Incorporated, filed July 21, 2003, which is incorporated by reference in the Registration Statement on Form S-8 of Aeroflex Incorporated. Note 16 to the consolidated financial statements referred to above indicates that those financial statements were revised to reflect the presentation of a discontinued operation in December 2002. /s/KPMG LLP Melville, New York September 8, 2003 -----END PRIVACY-ENHANCED MESSAGE-----