As filed with the Securities and Exchange Commission on April 27, 2004
Reg. No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RF INDUSTRIES, LTD.
(Exact name of issuer as specified in its charter)
Nevada 88-0168936
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7620 Miramar Road
San Diego, CA 92126
(818) 549-6340
(Address, including zip code, and
telephone number, including area code, of
Registrant's principal executive offices)
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EMPLOYMENT AGREEMENTS
(Full title of the plans)
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Howard Hill, Chief Executive Officer
RF INDUSTRIES, LTD.
7620 Miramar Road
San Diego, CA 92126
(858) 549-6340
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Istvan Benko, Esq.
Troy & Gould Professional Corporation
1801 Century Park East, Suite 1600
Los Angeles, California 90067
(310) 553-4441
FAX: (310) 201-4746
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered(1) per share price(1) registration fee(1)
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Common Stock, $.01 par value............ 200,000 shares $2.90 $580,000 $73.49
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Common Stock, $.01 par value............ 100,000 shares $2.13 $213,000 $26.99
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Total 300,000 shares $783,000 $100.48
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(1) Computed in accordance with Rule 457(h) of the General Rules under the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 of the General Rules and Regulations under the Securities Act of
1933 and the Note to Part I of Form S-8.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by RF Industries, Ltd. (the "Company") with
the Securities and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934 (the "Exchange Act") (Commission File No. 000-13301) are
incorporated herein by reference: (a) the Company's Annual Report on Form
10-KSB, as amended, for the fiscal year ended October 31, 2003; (b) the Current
Report on Form 8-K filed with the Commission on March 3, 2004, (c) the Company's
Quarterly Report on Form 10-QSB for the quarter ended January 31, 2004; and (d)
the description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A, including any amendment or report
subsequently filed by the Company for the purpose of updating that description.
In addition, any document filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
Common Stock then remaining unsold, will be deemed incorporated herein by
reference and to be a part hereof from the date of filing of such document.
Item 6. Indemnification of Directors and Officers
Subsection 1 of Section 78.7302 of the Nevada General Corporation Law
("NGCL") provides that a corporation may indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (except in an action brought by or on behalf of the corporation)
if that person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by that person in connection with
such action, suit or proceeding, if that person acted in good faith and in a
manner which that person reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, alone, does not
create a presumption that the person did not act in good faith and in a manner
which the person reasonably believed to be in, or not opposed to, the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, the person had reasonable cause to believe his action was unlawful.
Subsection 2 of Section 78.7502 of the NGCL provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit brought by or on behalf
of the corporation to procure a judgment in its favor because the person acted
in any of the capacities set forth above, against expenses, including amounts
paid in settlement and attorneys' fees, actually and reasonably incurred by that
person in connection with the defense or settlement of such action or suit, if
the personal acted in accordance with the standard set forth above, except that
no indemnification may be made in respect of any claim, issue or matter as to
which such person shall have been adjudged by a court of competent jurisdiction
after exhaustion of all appeals therefrom to be liable to the corporation or for
amounts paid in settlement to the corporation unless and only to the extent that
the court in which such action or suit was brought or other court of competent
jurisdiction determines that, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
Section 78.751 of the NGCL provides that unless indemnification is ordered
by a court, the determination to provide indemnification must be made by the
stockholders, by a majority vote of a quorum of the board of directors who were
not parties to the action, suit or proceeding, or in specified circumstances by
independent legal counsel in a written opinion. In addition, the articles of
incorporation, bylaws or an agreement made by the corporation may provide for
the payment of the expenses of a director or officer of the expenses of
defending an action as incurred upon receipt of an undertaking to repay the
amount if it is ultimately determined by a court of competent jurisdiction that
the person is not entitled to indemnification. Section 78.751 of the NGCL
further provides that, to the extent a director or officer of a corporation has
been successful on the merits or otherwise in the defenses of any action, suit
or proceeding referred to in subsection (1) and (2), or in the defense of any
claim, issue or matter therein, that person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by that
person in connection therewith; that indemnification provided for by Section
78.751 of the NGCL shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled and that the scope of indemnification
shall continue as to directors, officers, employees or agents who have ceased to
hold such positions, and to their heirs, executors and administrators.
Finally, Section 78.752 of the NGCL provides that a corporation may
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the corporation would have the authority to indemnify him against such
liabilities and expenses.
Article XV of the Company's Articles of Incorporation, as amended, provides
for the indemnification of directors, employees and agents to the fullest extent
permissible under Nevada law. This Article also provides for the indemnification
of officers, directors and third parties acting on behalf of the Company if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Company, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his conduct
was unlawful.
The foregoing indemnification provisions are broad enough to encompass
certain liabilities of directors and officers of the Company under the
Securities Act of 1933.
Item 8. Exhibits
The following exhibits included herewith or incorporated herein by
reference are made a part of this Registration Statement:
5 Opinion of Troy & Gould Professional Corporation regarding the
legality of the securities registered hereunder.*
23.1 Consent of JH Cohn LLP.*
23.2 Consent of Troy & Gould Professional Corporation ( included in
Exhibit 5.)*
24.1 Power of Attorney (included on signature page).
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* Included herewith.
Item 9. Undertakings
(a) The Company 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 this 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 this Registration
Statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(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 with or furnished to the Commission
by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose 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 hereunder which remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 this
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) Insofar as indemnification for liabilities arising under the Securities
Actof 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
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 the City of San Diego, California, on this __ day of April, 2004.
RF INDUSTRIES LTD.
By: /s/ Howard F. Hill
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Howard F. Hill
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Howard F. Hill such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to sign on such person's behalf,
individually and in each capacity stated below, all amendments and
post-effective amendments to this Registration Statement on Form S-8 and to file
the same, with all exhibits thereto and any other documents in connection
therewith, with the Commission under the Securities Act, 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 in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming each act that said attorney-in-fact and
agent may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ Howard F. Hill Chief Executive Officer April 27, 2004
------------------------ and Director
Howard F. Hill
/s/ Terrie Gross Chief Financial Officer and April 27, 2004
------------------------ Principal Accounting Officer
Terrie Gross
/s/ Henry E. Hooper Director April 27, 2004
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Henry E. Hooper
/s/ John Ehret Director April 27, 2004
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John Ehret
/s/ Robert Jacobs Director April 27, 2004
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Robert Jacobs
/s/ Linde Kester Director April 27, 2004
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Linde Kester
/s/ Marvin Fink Director April 27, 2004
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Marvin Fink