As filed with the Securities and Exchange Commission January 14, 1997
Registration No. 333
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
HERLEY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 23-2413500
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10 Industry Drive Myron Levy, President
Lancaster, Pennsylvania 17603-4025 Herley Industries, Inc.
(717) 397-2777 10 Industry Drive
(Address, including zip code and telephone Lancaster, Pennsylvania 17603-4025
number, including area code, of registrant's (717) 397-2777
principal executive offices) (Name address and telephone number,
including area code, of agent for
service)
Copy to:
David H. Lieberman, Esq.
Blau, Kramer, Wactlar & Lieberman, P.C.
100 Jericho Quadrangle
Jericho, New York 11753
(516) 822-4820
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ].
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box [ ].
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered Price Per Share (1) Aggregate Offering Price (1) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 380,490 shs. $10.50 $3,995,145 $1,211
$.10 per share, reserved
for issuance upon the
exercise of Common Stock
Purchase Warrants (2)
- -----------------------------------------------------------------------------------------------------------------------------------
<PAGE>
<FN>
(1) Estimated solely for the purpose of calculating the registration fee, based
on the closing price of the Common Stock reported in the consolidated reporting
system on January 7, 1997. (2) Pursuant to Rule 416, this Registration Statement
also covers any additional shares of Common Stock which may become issuable by
virtue of the anti-dilution provisions of such Warrants.
</FN>
</TABLE>
- -------------------------------------------------------------------------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
HERLEY INDUSTRIES, INC.
Cross Reference Sheet
Showing location in Prospectus of Information Required by Items on Form S-3
Item No. Prospectus Caption
1. Forepart of the Registration Outside Front Cover
Statement and Outside Front Cover Page Page of Prospectus
of Prospectus
2. Inside Front and Outside Back Cover Inside Front and Outside
Pages of Prospectus Back Cover Pages of
Prospectus
3. Summary Information, Risk Factors and *
Ratio of Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Outside Front Cover Page;
Selling Securityholders
6. Dilution *
7. Selling Security Holders Selling Securityholders
8. Plan of Distribution Outside Front Cover Page;
Plan of Distribution
9. Description of Securities to be *
Registered
10. Interests of Named Experts and Counsel Legal Opinion;
Experts
11. Material Changes *
12. Incorporation of Certain Information Incorporation of
by Reference Certain Documents
By Reference
13. Disclosure of Commission Position on *
Indemnification for Securities Act
Liabilities
*Omitted since answer to item is negative or inapplicable
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECTED TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION
Dated January 14, 1997
HERLEY INDUSTRIES, INC.
380,490 Shares of Common Stock
$.10 par value
The 380,490 shares of Common Stock, par value $.10 par share, (the
"Shares") underlying Common Stock Purchase Warrants, of Herley Industries, Inc.
(the "Company") being covered by this Prospectus are being offered for sale from
time to time by or for the accounts of Ladenburg, Thalmann & Co, Inc., certain
directors and officers of the Company, certain transferees thereof, and any
pledgees, transferees, donees or other successors in interest thereof (the
"Selling Securityholders"). The Shares may be offered by the Selling
Securityholders from time to time in transactions on the Nasdaq National Market
System, in privately negotiated transactions, or by a combination of such
methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Securityholders may effect such
transactions by selling the Shares to or through broker-dealers and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Securityholders or the purchaser of the Shares for
whom such broker-dealers may act as agent or to whom they sell as principal or
both (which compensation to a particular broker-dealer might be in excess of
customary commissions). See "Selling Securityholders" and "Plan of
Distribution."
None of the proceeds from the sale of the Shares by the Selling
Securityholders will be received by the Company. The Company will bear the
expenses in connection with the offering, including filing fees and the
Company's legal and accounting fees, estimated at $7,500.
The Company's Common Stock is traded on the Nasdaq National Market
System (NASD Symbol: HRLY). On January 7, 1997, the last reported sale price of
the Company's Common Stock as reported by the Nasdaq National Market System was
$10.50 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1997
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C., a Registration Statement under the Securities
Act of 1933, as amended (the "Act"), with respect to the Common Stock offered
hereby. This Prospectus does not contain all the information set forth in the
Registration Statement and the exhibits relating thereto. For further
information with respect to the Company and the shares of Common stock offered
by this Prospectus, reference is made to such Registration Statement and the
exhibits thereto. Statements contained in this Prospectus as to the contents of
any contract or other document are not necessarily complete and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement for a full statement of the provisions
thereof; each such statement contained herein is qualified in its entirety by
such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained at the office
of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the Commission's Regional Offices at Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade
Center, New York, New York 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission, Washington, D.C. 20549, at
prescribed rates, and from the Securities and Exchange Commission's Web site at
the address http://www.sec.gov. In addition, the Company's Common Stock is
listed on the Nasdaq Stock Market, and copies of the foregoing materials and
other information concerning the Company can be inspected at the offices of the
Nasdaq Stock Market at 1735 K Street, N.W., Washington, DC 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission
(File No. 0-5411) pursuant to the Exchange Act, are incorporated by reference in
this Prospectus and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended July
28, 1996.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
November 3, 1996.
(3) The description of the class of securities to be offered which is
contained in a Registration Statement filed under Section 12 of the
Securities and Exchange Act of 1934 (File No. 0-5411), including any
amendment or report filed for the purpose of updating such
description.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Prospectus and prior to the termination of
this offering of Common Stock shall be deemed to be incorporated by reference in
this Prospectus and to be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference in this Prospectus shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein or
in any subsequently filed document that also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated by reference (except for
exhibits thereto unless specifically incorporated by reference therein).
Requests for such copies should be directed to the Secretary, Herley Industries,
Inc., 10 Industry Drive, Lancaster, PA 17603, (717) 397-2777.
<PAGE>
THE COMPANY
Herley Industries, Inc. ("Herley" or the "Company") principally designs,
manufactures and sells flight instrumentation products, primarily to aerospace
companies, the U.S. government, and several foreign governments. One of the
Company's main products is a variety of transponders which are used to enhance
radar signals to accurately track the flight of space launch vehicles and
aircraft.
The transponders are used in conjunction with target command and control
systems, also manufactured by the Company, in the training of troops and the
testing of weapons. These command and control systems are housed in shelters on
training and testing ranges in the U.S. and in foreign countries. The Company
has an established base of approximately 100 command and control systems
installed around the world. These command and control systems are both shelter
mounted and portable radar units. Herley also manufactures microwave devices
used in its flight instrumentation products and in connection with the radar and
defense electronic systems on tactical fighter aircraft.
Since its inception in 1965, the Company has designed and manufactured
microwave devices for use on various tactical military programs. In June 1986
the Company acquired a small engineering company engaged in the design and
development of transponders. This acquisition enabled the Company to enter the
flight instrumentation business beginning with the design and manufacture of
range safety transponders. In September 1992, the Company acquired substantially
all of the assets of Micro-Dynamics, Inc. of Woburn, Massachusetts, a microwave
subsystem designer and manufacturer. In June of 1993, the Company acquired Vega
Precision Laboratories, Inc. ("Vega") of Vienna, Virginia , and moved the
operations to Lancaster, Pennsylvania in October, 1993. In March 1994, the
Company entered into an exclusive license agreement for the manufacture,
marketing and sale of the Multiple Aircraft GPS Integrated Command & Control
(MAGIC2) systems. In July, 1995, the Company acquired certain assets and the
business of Stewart Warner Electronics Corp. of Chicago, Illinois, a
manufacturer of high frequency radio and IFF interrogator systems.
With these recent acquisitions, the Company has reorganized into three
operating facilities; HERLEY-VEGA SYSTEMS, operating in Lancaster, Pennsylvania;
HERLEY-MDI operating in Woburn, Massachusetts, and Stewart Warner Electronics
Co. operating in Chicago, Illinois. In January 1996 the Company created its
Global Security Systems division, a marketing group, to serve the international
marketplace.
The Company manufactures flight instrumentation products, encompassing
transponder products and command & control systems; and microwave products
including microwave integrated circuits, receiver-protectors, and magnetrons.
Revenues from flight instrumentation products accounted for approximately 69%,
58% and 62%, and revenues from microwave products accounted for approximately
31%, 42% and 38%, of net revenues for the fiscal years 1996, 1995 and 1994,
respectively.
Herley's business strategy is to expand its product line by acquisition and
by designing and manufacturing other flight instrumentation products for sale to
the Company's existing domestic customers. In addition, the Company due to its
broad product line, will seek to expand its foreign business. These major
products include transponders, flight termination receivers, telemetry systems
and telemetry data encoders. The Company believes that significant growth
potential for the sale of flight instrumentation products to the space launch
industry has been created by changes in government space policy, enabling
private industry to launch satellites, and new technologies providing for
broader use of satellites.
Products
The Company manufactures and sells transponders, microwave devices, command
and control systems, and other related products, in one industry segment,
military electronics. The Company's business is not considered to be seasonal in
nature.
USE OF PROCEEDS
The Company will not receive any proceeds from this offering.
<PAGE>
PRICE RANGE OF COMMON STOCK
(a) The Company's Common Stock is traded in the over-the-counter National
Market System under the symbol HRLY. The following table sets forth the high and
low closing sales price as reported by NASDAQ - National Market System for the
Company's Common Stock for the periods indicated.
<TABLE>
<CAPTION>
Common Stock
High Low
<S> <C> <C>
Fiscal Year 1995
First Quarter . . . . . . . . . . . . . . . . $ 5-1/2 $ 3-5/8
Second Quarter. . . . . . . . . . . . . . . . 4-1/8 2-9/16
Third Quarter . . . . . . . . . . . . . . . . 3-13/16 1-3/4
Fourth Quarter. . . . . . . . . . . . . . . . 5-5/8 3-3/16
Fiscal Year 1996
First Quarter . . . . . . . . . . . . . . . . 6-1/8 4-7/8
Second Quarter. . . . . . . . . . . . . . . . 8-1/4 5-1/8
Third Quarter . . . . . . . . . . . . . . . . 10-5/8 7
Fourth Quarter. . . . . . . . . . . . . . . . 12-1/4 8
Fiscal Year 1997
First Quarter . . . . . . . . . . . . . . . . 10-5/8 8-1/4
- -----------
</TABLE>
The closing price on January 7, 1997 was $10.50
(b) As of January 7, 1997, there were approximately 1,000 record holders of
the Company's Common Stock.
(c) There have been no cash dividends declared or paid by the Company on
its Common Stock during the past two years.
DIVIDEND POLICY
The Company has never paid any cash dividends on its Common Stock. There
have been no stock dividends declared or paid by the Company on its Common Stock
during the past two years. Payment of future dividends, if any, will be
dependent upon the earnings and financial position of the Company and such
factors as the Board of Directors shall deem appropriate.
COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The primary function of the Compensation Committee is to oversee policies
relating to executive compensation including salary, incentive bonuses, fringe
benefits and stock option awards. Its objective is to attract and retain
qualified individuals by providing competitive compensation, while, at the same
time, linking such compensation to corporate objectives. The Committee believes
that providing a direct relationship between corporate results and executive
compensation will best serve shareholder interest. This link between executive
compensation and corporate performance is facilitated through incentive bonuses
based on earnings and also through stock option awards. Salary ranges for the
chief executive officer and other executive officers are based on the underlying
accountability of each executive's position, which is reviewed on a regular
basis, subject to the terms and conditions of employment agreements.
<PAGE>
RELATIONSHIP OF COMPENSATION TO PERFORMANCE
FOR OFFICERS AND CHIEF EXECUTIVE OFFICER
The Compensation Committee annually establishes, subject to any applicable
employment agreements, the salaries which will be paid to the Company's
executive officers during the coming year. In setting salaries, the Committee
takes into account several factors, including competitive compensation data, the
extent to which an individual may participate in the stock option plans
maintained by the Company and its affiliates, and qualitative factors bearing on
an individual's experience, responsibilities, management and leadership
abilities and job performance.
The Compensation Committee: Thomas J. Allshouse
David H. Lieberman
COMPLIANCE WITH SECTION 16(a) OF THE SECURITIES EXCHANGE ACT
Section 16(a) of the Exchange Act requires the Company's executive
officers, directors and persons who own more than ten percent of a registered
class of the Company's equity securities ("Reporting Persons") to file reports
of ownership and changes in ownership on Forms 3, 4 and 5 with the Securities
and Exchange Commission (the "SEC") and the National Association of Securities
Dealers, Inc. (the "NASD"). These Reporting Persons are required by SEC
regulations to furnish the Company with copies of all Forms 3, 4 and 5 they file
with the SEC and NASD.
Based solely upon the Company's review of the forms it has received, the
Company believes that all reporting persons complied on a timely basis with all
filing requirements applicable to them with respect to transactions during
fiscal year 1996.
PERFORMANCE CHART
The following graph sets forth the cumulative total stockholder return to
the Company's stockholders during the five-year period ended July 28, 1996 as
well as an overall stock market index (NASDAQ Stock Market-US) and the Company's
peer group index (S&P Aerospace/Defense):
COMPARISON OF FIVE YEAR CUMULATIVE TOTAL RETURN
AMONG HERLEY INDUSTRIES, INC., THE NASDAQ STOCK MARKET-US INDEX AND
THE S & P AEROSPACE/DEFENSE INDEX
<TABLE>
<CAPTION>
Measurement Period Herley NASDAQ S & P
(Fiscal Year Covered) Industries, Inc. Stock Market Aerospace/Defense
<S> <C> <C> <C>
1991 100 100 100
1992 154 117 102
1993 137 143 130
1994 68 147 148
1995 93 206 221
1996 152 225 287
</TABLE>
<PAGE>
SELLING SECURITY HOLDERS
The Shares being offered by this Prospectus are for the account of the
following Selling Securityholders in the amounts set forth below:
<TABLE>
<CAPTION>
Number of Number of Number of
Shares Shares Shares Owned
Securityholder(2) Owned Offered (1) After Offering
<S> <C> <C> <C>
Ladenburg, Thalmann & Co., Inc. 130,490 130,490 -0-
Lee N. Blatt (3). . . . . . . . 617,770 100,000 517,770 (16.2%)
Myron Levy (3). . . . . . . . . 264,958 50,000 214,958 ( 6.8%)
Gerald Klein (3). . . . . . . . 271,407 50,000 221,407 ( 7.1%)
David H. Lieberman. . . . . . . 16,600 10,000 6,600
Thomas J. Allshouse . . . . . . 19,600 10,000 9,600
John Thonet . . . . . . . . . . 16,270 10,000 6,270
Anello C. Garefino (3). . . . . 32,938 10,000 22,938
Allan Coon (3). . . . . . . . . 20,000 10,000 10,000
<FN>
(1) Represents an aggregate of 380,490 shares of Common Stock issuable upon
exercise of 380,490 Common Stock Purchase Warrants (the "Warrants") issued
by the Company in February 1992, April 1993 and December 1995, each to
purchase one share of Common Stock. One hundred thirty thousand four
hundred ninety of these Warrants are exercisable for shares of Common Stock
of the Company at a current exercise price of $11.84 per share, two hundred
twenty thousand of these Warrants are exercisable for shares of Common
Stock of the Company at a current exercise price of $6.1875 per share, and
thirty thousand of these Warrants are exercisable for shares of Common
Stock of the Company at a current exercise price of $7.13 per share.
(2) The following Selling Securityholders are officers and/or directors of the
Company: Mr. Blatt, Chairman of the Board; Mr. Levy, President and
Director; Mr. Klein, Chief Technical Officer and a former director; Mr.
Lieberman, Secretary and Director; Messrs. Allshouse and Thonet,
directors; Mr. Garefino, Vice President Finance, Treasurer and Chief
Financial Officer; and Mr. Coon, Vice President.
(3) Includes shares subject to options exercisable within the 60-day period
following January 2, 1997 at prices ranging from $3.38 to $9.25 per share
pursuant to the Company's Non-Qualified Stock Option Plans: Lee N. Blatt -
83,333, Myron Levy - 54,167, Gerald I. Klein - 16,667, Anello C. Garefino -
8,333, Allan Coon - 10,000.
</FN>
</TABLE>
PLAN OF DISTRIBUTION
The Shares are traded on the NASDAQ Stock Market National Market System
under the symbol HRLY. The Shares may be sold from time to time directly by the
Selling Securityholders. Alternatively, the Selling Securityholders may from
time to time offer such securities through underwriters, dealers or agents. The
distribution of securities by the Selling Securityholders may be effected in one
or more transactions that may take place on the NASDAQ Stock Market National
Market System, including ordinary broker's transactions, privately-negotiated
transactions or through sales to one or more broker-dealers for resale of such
shares as principals, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Usual and
customary or specifically negotiated brokerage fees or commissions may be paid
by the Selling Securityholders in connection with such sales of securities.
At the time a particular offer of securities is made by or on behalf of the
Selling Securityholders, to the extent required, a prospectus will be
distributed which will set forth the number of shares being offered and the
terms of the offering, including the name or names of any underwriters, dealers
or agents, if any, the purchase price paid by any underwriter for shares
purchased from the Selling Securityholders and any discounts, commissions or
concessions allowed or reallowed or paid to dealers, and the proposed selling
price to the public.
<PAGE>
LEGAL OPINION
Certain legal matters in connection with this offering will be passed upon
for the Company by Blau, Kramer, Wactlar & Lieberman, P.C., Jericho, New York
11753. David H. Lieberman, a member of the firm, is a director of the Company.
Mr. Lieberman owns 6,600 shares of Common Stock of the Company and Warrants to
purchase 10,000 shares of Common Stock of the Company. The 10,000 shares of
Common stock underlying the Warrants owned by Mr.
Lieberman are registered for resale hereunder.
EXPERTS
The financial statements and schedules included in this prospectus and
elsewhere in the Registration Statement, to the extent and for the periods
indicated in their reports, have been audited by Arthur Andersen LLP and
Wolinetz, Gottlieb & Lafazan, P.C., independent public accountants, and are
included herein in reliance upon the authority of said firms as experts in
giving said reports.
<PAGE>
No dealer, salesperson, or other person has been authorized by the Company to
give any information or to make any representations other than those contained
in this Prospectus and, if given or made, such other information or
representations must not be relied upon as having been so authorized by the
Company. This Prospectus does not constitute an offer to sell, or a solicitation
of an offer to buy, any securities other than the securities to which it
relates, or an offer to or solicitation of any person in any jurisdiction in
which such offer or solicitation would be unlawful. Neither delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that the information herein is correct as of any time subsequent
to the date hereof.
TABLE OF CONTENTS
Page
----
Available Information 2
Incorporation of Certain Documents
by Reference 2
The Company 3
Use of Proceeds 4
Price Range of Common Stock 4
Dividend Policy 4
Compensation Committee Report on
Executive Compensation 4
Relationship of Compensation to Performance
for Officers and Chief Executive Officers 5
Compliance with Section 16(a) of the
Securities Exchange Act 5
Performance Chart 5
Selling Security Holders 6
Plan of Distribution 6
Legal Opinion 7
Experts 7
HERLEY INDUSTRIES, INC.
380,490 Shares of
Common Stock
PROSPECTUS
___________, 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission
Filing Fee. . . . . . . . . . . . . . . . . $ 1,211
Legal and Accounting Fees . . . . . . . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . 1,289
Total . . . . . . . . . . . . . . . . . . . $7,500
The Company will pay all of these expenses.
Item 15. Indemnification of Directors and Officers
Under provisions of the By-Laws of the Company, each person who is or was a
director or officer of the Company may be indemnified by the Company to the full
extent permitted or authorized by the General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the merits
of defense of a suit or proceeding brought against him by reason of the fact
that he is a director or officer of the Company, he shall be indemnified against
expenses (including attorneys' fees) reasonably incurred in connection with such
action.
If unsuccessful in defense of a third-party civil suit or if a criminal
suit is settled, such a person may be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgements, fines and amounts
paid in settlement if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Company, and
with respect to any criminal action, had no reasonable cause to believe his
conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the
Company, or if such suit is settled, such a person may be indemnified under such
law only against expenses (including attorneys' fees) incurred in the defense or
settlement of such suit if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Company except
that if such a person is adjudged to be liable in such suit for negligence or
misconduct in the performance of his duty to the Company, he cannot be made
whole even for expenses unless the court determines that he is fairly and
reasonably entitled to indemnity for such expenses.
The Company and its officers and directors of the Company are covered by
officers and directors liability insurance. The policy coverage is $3,000,000,
which includes reimbursement for costs and fees. There is a maximum deductible
under the policy of $200,000 for each claim. The Company 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.
<PAGE>
Item 16. Exhibits
4.1 Form of Warrant Certificate dated as of February 13, 1992 between the
Company and Ladenburg, Thalmann & Co., Inc.
4.2 Form of Warrant Certificate between the Company and certain Selling
Securityholders.
5 Opinion of Blau, Kramer, Wactlar & Lieberman, P.C.
23.1 Consent of Arthur Andersen LLP 23.2 Consent of Wolinetz, Gottlieb &
Lafazan, LLP.
23.3 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. (included in
Exhibit 5 hereof)
24 Powers of Attorney (included in the signature pages hereof)
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"Act"), each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of a registration
statement in reliance upon Rule 430A and contained in a form of prospectus filed
by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act
shall be deemed to be part of the registration statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Lancaster, Pennsylvania on the 30th day of December, 1996.
Herley Industries, Inc.
By: /s/ Lee N. Blatt
Lee N. Blatt
Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on December 30, 1996 by the
following persons in the capacities indicated. Each person whose signature
appears below also constitutes and appoints Lee N. Blatt and Myron Levy, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and all other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Signature Title
/s/ Lee N. Blatt Chairman of the Board
Lee N. Blatt (Chief Executive Officer)
/s/ Myron Levy President and Director
Myron Levy
/s/ Anello C. Garefino Vice President - Finance,
Anello C. Garefino Treasurer (Chief Financial
Officer and Principal
Accounting Officer)
/s/ Thomas S. Allshouse Director
Thomas S. Allshouse
/s/ David H. Lieberman Secretary and Director
David H. Lieberman
/s/ John Thonet Director
John Thonet
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
---------------
EXHIBITS
to
Form S-3
Registration Statement
---------------
Herley Industries, Inc.
(Exact name of registrant as specified in its charter)
HERLEY INDUSTRIES, INC.
Warrant for the Purchase of Shares of Common Stock
No. 1 _______ Shares
FOR VALUE RECEIVED, HERLEY INDUSTRIES, INC., a Delaware corporation
(the "Company"), hereby certifies that Ladenburg, Thalmann & Co. Inc. or its
permitted assigns, is entitled to purchase from the Company, at any time or from
time to time commencing on February 13, 1993 and prior to 5:00 P.M., New York
City time, on February 13, 1997, _____________________ (_______) fully paid and
non-assessable shares of the common stock, $.10 par value per share, of the
Company for an aggregate purchase price of $1,545,000 (computed on the basis of
$_____ per share). (Hereinafter, (i) said common stock, together with any other
equity securities which may be issued by the Company with respect thereto or in
substitution therefor, is referred to as the "Common Stock," (ii) the shares of
the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to as the,"Warrant Shares,"(iii) the aggregate
purchase price payable for the Warrant Shares hereunder is referred to as the
"Aggregate Warrant Price," (iv) the price payable for each of the Warrant Shares
hereunder is referred to as the "Per Share Warrant Price," (v) this Warrant, all
similar Warrants issued on the date hereof and all warrants hereafter issued in
exchange or substitution for this Warrant or such similar Warrants are referred
to as the "Warrants" and (vi) the holder of this Warrant is referred to as the
"Holder" and the holder of this Warrant and all other Warrants or Warrant Shares
issued upon the exercise of any Warrant are referred to as the "Holders.") The
Aggregate Warrant Price is not subject to adjustment. The Per Share Warrant
Price is subject to adjustment as hereinafter provided; in the event of any such
adjustment, the number of Warrant Shares shall be adjusted by dividing the
Aggregate Warrant Price by the Per Share Warrant Price in effect immediately
after such adjustment.
1. Exercise of Warrant. This Warrant may be exercised, in whole at any
time or in part from time to time, commencing on February 13, 1993 and prior to
5:00 P.M., New York City time, on February 13, 1997, by the Holder by the
surrender of this Warrant (with the subscription form at the end hereof duly
executed) at the address set forth in Subsection 9(a) hereof, together with
proper payment of the Aggregate Warrant Price, or the proportionate part thereof
if this Warrant is exercised in part. Payment for Warrant Shares shall be made
by certified or official bank check payable to the order of the Company. If this
Warrant is exercised in part, this Warrant must be exercised for a number of
whole shares of the Common Stock, and the Holder is entitled to receive a new
Warrant covering the Warrant Shares which have not been exercised and setting
forth the proportionate part of the Aggregate Warrant Price applicable to such
Warrant Shares. Upon such surrender of this Warrant, the Company will (a) issue
a certificate or certificates in the name of the Holder for the largest number
of whole shares of the Common Stock to which the Holder shall be entitled and,
if this Warrant is exercised in whole, in lieu of any fractional share of the
Common Stock to which the Holder shall be entitled, pay to the Holder cash in an
amount equal to the fair value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall determine), and
(b) deliver the other securities and properties receivable upon the exercise of
this Warrant, or the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of this Warrant.
<PAGE>
2. Reservation of Warrant Shares; Listing. The Company agrees that,
prior to the expiration of this Warrant, the Company will at all times (a)
have authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant, the shares of the Common Stock and
other securities and properties as from time to time shall be receivable upon
the exercise of this Warrant, free and clear of all restrictions on sale or
transfer and free and clear of all preemptive rights and rights of first refusal
and (b) if the Company hereafter lists its Common Stock on any national
securities exchange, keep the shares of the Common Stock receivable upon the
exercise of this Warrant authorized for listing on such exchange upon notice of
issuance.
3. Protection Against Dilution. (a) If, at any time or from time to
time after the date of this Warrant, the Company shall issue or distribute to
the holders of shares of Common Stock evidences of its indebtedness, any other
securities of the Company or any cash, property or other assets (excluding a
subdivision, combination or reclassification, or dividend or distribution
payable in shares of Common Stock, referred to in Subsection 3(b), and also
excluding cash dividends or cash distributions paid out of net profits legally
available therefor if the full amount thereof, together with the value of other
dividends and distributions made substantially concurrently therewith or
pursuant to a plan which includes payment thereof, is equivalent to not more
than 5% of the Company's net worth) (any such non-excluded event being herein
called a "Special Dividend"), the Per Share Warrant Price shall be adjusted by
multiplying the Per Share Warrant Price then in effect by a fraction, the
numerator of which shall be the then current market price of the Common Stock
(defined as the average for the thirty consecutive business days immediately
prior to the record date of the daily closing price of the Common Stock as
reported by the national securities exchange upon which the Common Stock is then
listed or if not listed on any such exchange, the average of the closing prices
as reported by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") National Market System, or if not then listed on
the NASDAQ National Market System, the average of the highest reported bid and
lowest reported asked prices as reported by the NASDAQ, or if not then publicly
traded, as the fair market price as determined by the Company's Board of
Directors) less the fair market value (as determined by the Company's Board of
Directors) of the evidences of indebtedness, cash, securities or property, or
other assets issued or distributed in such Special Dividend applicable to one
share of Common Stock and the denominator of which shall be such then current
market price per share of Common Stock. An adjustment made pursuant to this
Subsection 3(a) shall become effective immediately after the record date of any
such Special Dividend.
(b) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its capital stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
or (iv) issue by reclassification of its Common Stock any shares of capital
stock of the Company, the Per Share Warrant Price shall be adjusted so that the
Holder upon the exercise hereof shall be entitled to receive the number of
shares of Common Stock or other capital stock of the Company which he would have
owned immediately following such action had such Warrant been exercised
immediately prior thereto. An adjustment made pursuant to this Subsection 3(b)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
<PAGE>
(c) Except as provided in Subsection 3(e), in case the Company shall
hereafter issue or sell any shares of Common Stock for a consideration per share
less than the Per Share Warrant Price on the date of such issuance or sale, the
Per Share Warrant Price shall be adjusted as of the date of such issuance or
sale so that the same shall equal the price determined by dividing (i) the sum
of (A) the number of shares of Common Stock outstanding immediately prior to
such issuance or sale multiplied by the Per Share Warrant Price plus (B) the
consideration received by the Company upon such issuance or sale by (ii) the
total number of shares of Common Stock outstanding after such issuance or sale.
(d) Except as provided in Subsections 3(a) and 3(e), in case the
Company shall hereafter issue or sell any rights, options, warrants or
securities convertible into Common Stock entitling the holders thereof to
purchase Common Stock or to convert such securities into Common Stock at a price
per share (determined by dividing (i) the total amount, if any, received or
receivable by the Company in consideration of the issuance or sale of such
rights, options, warrants or convertible securities plus the total
consideration, if any, payable to the Company upon exercise or conversion
thereof (the "Total Consideration") by (ii) the number of additional shares of
Common Stock issuable upon exercise or conversion of such securities) less than
the then current Per Share Warrant Price in effect on the date of such issuance
or sale, the Per Share Warrant Price shall be adjusted as of the date of such
issuance or sale so that the same shall equal the price determined by dividing
(i) the sum of (A) the number of shares of Common Stock outstanding on the date
of such issuance or sale multiplied by the Per Share Warrant Price plus (B) the
Total Consideration by (ii) the number of shares of Common Stock outstanding on
the date of such issuance or sale plus the maximum number of additional shares
of Common Stock issuable upon exercise or conversion of such securities.
(e) No adjustment in the Per Share Warrant Price shall be required in
the case of (i) the issuance by the Company of options to purchase in the
aggregate up to 100,000 shares of Common Stock pursuant to the Company's
Incentive Stock Option Plan and Non-Qualified Stock Option Plan in effect on the
date hereof and the issuance by the Company of up to an aggregate of 100,000
shares upon the exercise of such option, (ii) the issuance by the Company of
Common Stock pursuant to the exercise of any Warrant, and (iii) the issuance by
the Company of any shares of Common Stock pursuant to the exercise of the
over-allotment option referred to in Section 4(b) of the Underwriting Agreement
(the "Underwriting Agreement"), dated February 6, 1992, by and among the
Company, Ladenburg, Thalmann & Co. Inc., the Selling Stockholders listed in
Schedule B thereto (the "Selling Stockholders") and the other underwriters named
in Schedule A thereto. The number of shares of Common Stock set forth in this
Subsection 3(e) are subject to adjustment in accordance with any anti-dilution
provisions existing on the date hereof under the terms of the instruments
governing their issuance.
(f) In case of any capital reorganization or reclassification, or any
consolidation or merger to which the Company is a party other than a merger or
consolidation in which the Company is the continuing corporation, or in case of
any sale or conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), the Holder
<PAGE>
of this Warrant shall have the right thereafter to receive on the exercise of
this Warrant the kind and amount of securities, cash or other property which the
Holder would have owned or have been entitled to receive immediately after such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance had this Warrant been exercised immediately prior to the
effective date of such reorganization, reclassification, consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if necessary,
appropriate adjustment shall be made in the application of the provisions set
forth in this Section 3 with respect to the rights and interests thereafter of
the Holder of this Warrant to the end that the provisions set forth in this
Section 3 shall thereafter correspondingly be made applicable, as nearly as may
reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the exercise of this Warrant. The above
provisions of this Subsection 3(f) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, statutory
exchanges, sales or conveyances. The issuer of any shares of stock or other
securities or property thereafter deliverable on the exercise of this Warrant
shall be responsible for all of the agreements and obligations of the Company
hereunder. Notice of any such reorganization, reclassification, consolidation,
merger, statutory exchange, sale or conveyance and of said provisions so
proposed to be made, shall be mailed to the Holders of the Warrants not less
than 30 days prior to such event. A sale of all or substantially all of the
assets of the Company for a consideration consisting primarily of securities
shall be deemed a consolidation or merger for the foregoing purposes.
(g) In case any event shall occur as to which the other provisions of
this Section 3 are not strictly applicable but as to which the failure to make
any adjustment would not fairly protect the purchase rights represented by this
Warrant in accordance with the essential intent and principles hereof then, in
each such case, the Holders of Warrants representing the right to purchase a
majority of the Warrant Shares subject to all outstanding Warrants may appoint a
firm of independent public accountants of recognized national standing
reasonably acceptable to the Company, which shall give their opinion as to the
adjustment, if any, on a basis consistent with the essential intent and
principles established herein, necessary to preserve the purchase rights
represented by the Warrants. Upon receipt of such opinion, the Company will
promptly mail a copy thereof to the Holder of this Warrant and shall make the
adjustments described therein. The fees and expenses of such independent public
accountants shall be borne by the Company.
(h) No adjustment in the Per Share Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least $0.05
per share of Common Stock; provided however, that any adjustments which by
reason of this Subsection 3(h) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided further,
however, that adjustments shall be required and made in accordance with the
provisions of this Section 3 (other than this Subsection 3(h)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or Common Stock issuable upon
exercise hereof. All calculations under this Section 3 shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case may be. Anything
in this Section 3 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the Per Share Warrant Price, in addition to those
required by this Section 3, as it in its discretion shall deem to be advisable
in order that any stock dividend, subdivision of shares or distribution of
rights to purchase stock or securities convertible or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.
<PAGE>
(i) Whenever the Per Share Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights of a Holder of Warrants
in accordance with this Section 3, the Company shall promptly obtain, at its
expense, a certificate of a firm of independent public accountants of recognized
standing selected by the Board of Directors (who may be the regular auditors of
the Company) setting forth the Per Share Warrant Price and the number of Warrant
Shares after such adjustment or the effect of such modification, a brief
statement of the facts requiring such adjustment or modification and the manner
of computing the same and cause copies of such certificate to be mailed to the
Holders of the Warrants.
(j) If the Board of Directors of the Company shall declare any dividend
or other distribution with respect to the Common Stock other than a cash
distribution out of earned surplus, the Company shall mail notice thereof to the
Holders of the Warrants not less than 15 days prior to the record date fixed for
determining stockholders entitled to participate in such dividend or other
distribution.
(k) If, as a result of an adjustment made pursuant to this Section 3,
the Holder of any Warrant thereafter surrendered for exercise shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a written
notice to the Holder of any Warrant promptly after such adjustment) shall
determine the allocation of the adjusted Per Share Warrant Price between or
among shares or such classes of capital stock or shares of Common Stock and
other capital stock.
4. Fully Paid Stock Taxes. The Company agrees that the shares of the
Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and nonassessable, and not subject
to preemptive rights or rights of first refusal, and the Company will take all
such actions as may be necessary to assure that the par value or stated value,
if any, per share of the Common Stock is at all times equal to or less than the
then Per Share Warrant Price. The Company further covenants and agrees that it
will pay, when due and payable, any and all Federal and state stamp, original
issue or similar taxes which may be payable in respect of the issue of any
Warrant Share or certificate therefor.
5. Registration Under Securities Act of 1933.
(a) The Company agrees that if, at any time during the period
commencing on February 13,1993 and ending on February 13, 1997, the Holder
and/or the Holders of any other Warrants and/or Warrant Shares who or which
shall hold not less than 50% of the Warrants and/or Warrant Shares outstanding
at such time and not previously sold pursuant to this Section 5 shall request
that the Company file, under the Securities Act of 1933 (the "Act"), a
post-effective amendment to the Registration Statement (File Number 33-44959)
(the "Original Registration Statement") or if a post-effective amendment to the
Original Registration Statement is not available, a registration statement under
<PAGE>
the Act covering not less than 50% of the Warrant Shares issued or issuable upon
the exercise of the Warrants and not so previously sold, the Company will (i)
promptly notify each Holder of the Warrants and each holder of Warrant Shares
not so previously sold that such registration statement will be filed and that
the Warrant Shares which are then held, and/or may be acquired upon exercise of
the Warrants by the Holder and such Holders will be included in such
post-effective amendment or registration statement at the Holder's and such
Holders' request, (ii) cause such post-effective amendment or registration
statement to cover all Warrant Shares which it has been so requested to include,
(iii) use its best efforts to cause such post-effective amendment or
registration statement to become effective as soon as practicable and (iv) take
all other action necessary under any Federal or state law or regulation of any
governmental authority to permit all Warrant Shares which it has been so
requested to include in such post-effective amendment or registration statement
to be sold or otherwise disposed of, and will maintain such compliance with each
such Federal and state law and regulation of any governmental authority for the
period necessary for such Holders to effect the proposed sale or other
disposition, but in no event greater than one year from the effective date of
such registration statement. The Company shall be required to effect a
registration or qualification pursuant to this Subsection 5(a) on one occasion
only.
(b) The Company agrees that if, at any time and from time to time
during the period commencing on February 13, 1993 and ending on February 13,
1999, the Board of Directors of the Company shall authorize the filing of a
registration statement (any such registration statement being hereinafter called
a "Subsequent Registration Statement") under the Act (otherwise than pursuant to
Subsection 5(a) hereof, or other than a registration statement on Form S-8 or
other form which does not include substantially the same information as would be
required in a form for the general registration of securities) in connection
with the proposed offer of any of its securities by it or any of its
stockholders, the Company will (i) promptly notify the Holder and each of the
Holders, if any, of other Warrants and/or Warrant Shares not previously sold
pursuant to this Section 5 that such Subsequent Registration Statement will be
filed and that the Warrant Shares which are then held, and/or which may be
acquired upon the exercise of the Warrants, by the Holder and such Holders,
will, at the Holder's and such Holders' request, be included in such Subsequent
Registration Statement or, if the undertaking made by the Company in the
Original Registration Statement or the rules, regulations and releases of the
Securities and Exchange Commission, as the same may from time to time be in
effect, so require, in a post-effective amendment to the Original Registration
Statement, (ii) include in the securities covered by such Subsequent
Registration Statement or post-effective amendment all Warrant Shares which it
has been so requested to include, (iii) use its best efforts to cause such
Subsequent Registration Statement or post-effective amendment to become
effective as soon as practicable and (iv) take all other action necessary under
any Federal or state law or regulation of any governmental authority to permit
all Warrant Shares which it has been so requested to include in such Subsequent
Registration Statement or post-effective amendment to be sold or otherwise
disposed of, and will maintain such compliance with each such Federal and state
law and regulation of any governmental authority for the period necessary for
the Holder and such Holders to effect the proposed sale or other disposition.
(c) Whenever the Company is required pursuant to the provisions of
this Section 5 to include Warrant Shares in a registration statement or a
post-effective amendment to a registration statement, the Company shall (i)
furnish each Holder of any such Warrant Shares and each underwriter of such
Warrant Shares with such copies of the prospectus, including the preliminary
prospectus, conforming to the Act (and such other documents as each such Holder
<PAGE>
or each such underwriter may reasonably request) in order to facilitate the sale
or distribution of the Warrant Shares, (ii) use its best efforts to register or
qualify such Warrant Shares under the blue sky laws (to the extent applicable)
of such jurisdiction or laws (to the extent applicable) of such jurisdiction or
jurisdictions as the Holders of any such Warrant Shares and each underwriter of
Warrant Shares being sold by such Holders shall reasonably request and (iii)
take such other actions as may be reasonably necessary or advisable to enable
such Holders and such underwriters to consummate the sale or distribution in
such jurisdiction or jurisdictions in which such Holders shall have reasonably
requested that the Warrant Shares be sold; provided, however, that the Company
shall not be required to maintain the effectiveness of any registration
statement or post-effective amendment for a period in excess of 90 days after
the effective date of such registration statement or post-effective amendment.
(d) The Company shall pay all expenses incurred in connection with any
registration statement or other action pursuant to the provisions of this
Section 5, other than underwriting discounts and applicable transfer taxes
relating to the Warrant Shares.
(e) The Company will indemnify the Holders of Warrant Shares which are
included in each Subsequent Registration Statement and post-effective amendment
to the Original Registration Statement referred to in Subsections 5(a) and 5(b),
and the underwriters of such Warrant Shares, substantially to the same extent as
the Company has indemnified the underwriters (the "Underwriters") of its public
offering of Common Stock pursuant to the Underwriting Agreement dated February
6, 1992, among the Company, Ladenburg, Thalmann & Co. Inc., the Selling
Stockholders and the other underwriters named therein, and such Holders will
indemnify the Company (and the underwriters, if applicable) with respect to
information furnished by them in writing to the Company for inclusion therein
substantially to the same extent as the Underwriters have indemnified the
Company.
6. Limited Transferability. This Warrant may not be sold, transferred,
assigned or hypothecated by the Holder (a) except in compliance with the
provisions of the Act, and (b) until the first anniversary hereof except (i) to
any successor firm or corporation of Ladenburg, Thalmann & Co. Inc., (ii) to any
of the officers of Ladenburg, Thalmann & Co. Inc., or of any such successor firm
or (iii) in the case of an individual, pursuant to such individual's last will
and testament or the laws of descent and distribution, and is so transferable
only upon the books of the Company which it shall cause to be maintained for the
purpose. The Holder, by acceptance hereof, agrees that this Warrant and all
Warrant Shares purchased upon exercise hereof will be disposed of only in
accordance with the Act, the rules and regulations of the Securities and
Exchange Commission promulgated thereunder and all state securities laws
applicable thereto and that the Company may require the Holder to make such
representations, and may place such legends on certificates representing this
Warrant or any Warrant Shares, as may be reasonably required in the opinion of
counsel to the Company to permit transfer without registration. The Company may
treat the registered Holder of this Warrant as he or it appears on the Company's
books at any time as the Holder for all purposes. The Company shall permit any
Holder of a Warrant or his duly authorized attorney, upon written request during
ordinary business hours, to inspect and copy or make extracts from its books
showing the registered holders of Warrants. All warrants issued upon the
transfer or assignment of this Warrant will be dated the same date as this
Warrant, and all rights of the Holder thereof shall be identical to those of the
Holder.
<PAGE>
7. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and of
indemnity reasonably satisfactory to the Company, if lost stolen or destroyed,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
shall execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. Warrant Holder Not Shareholder. Except as otherwise provided herein,
this Warrant does not confer upon the Holder any right to vote or to consent to
or receive notice as a stockholder of the Company, as such in respect of any
matters whatsoever, or any other rights or liabilities as a stockholder, prior
to the exercise hereof.
9. Communications. No notice or other communication under this Warrant
shall be effective unless, but any notice or other communication shall be
effective and shall be deemed to have been given if, the same is in writing and
is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at 10 Industry Drive, Lancaster, Pennsylvania 17603 or such
other address as the Company has designated in writing to the Holder, or
(b) the Holder at 540 Madison Avenue, New York, New York 10022 or such
other address as the Holder has designated in writing to the Company.
10. Headings. The headings of this Warrant have been inserted as a matter
of convenience and shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by and construed in
accordance with the law of the State of New York without giving effect to the
principles of conflicts of law thereof.
IN WITNESS WHEREOF, HERLEY INDUSTRIES, INC. has caused this Warrant
to be signed by its President and its corporate seal to be hereunto affixed and
attested by its Secretary this 13th day of February, 1992.
HERLEY INDUSTRIES, INC.
By: __________________________________
President
ATTEST:
- ------------------------
Secretary
[Corporate Seal]
<PAGE>
SUBSCRIPTION
The undersigned, _____________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees to subscribe for and purchase
____________________________ shares of the Common Stock of HERLEY INDUSTRIES,
INC. covered by said Warrant, and makes payment therefor in full at the price
per share provided by said Warrant.
Dated: ______________ Signature: ____________________________
Address: ______________________________
ASSIGNMENT
FOR VALUE RECEIVED ________________ hereby sells, assigns and transfers
unto ________________ the foregoing Warrant and all rights evidenced thereby,
and does irrevocably constitute and appoint _____________________, attorney, to
transfer said Warrant on the books of HERLEY INDUSTRIES, INC.
Dated: __________________ Signature: ___________________________
Address: ___________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _______________________ hereby assigns and transfers
unto ___________________ the right to purchase ______________ shares of the
Common Stock of HERLEY INDUSTRIES, INC. covered by the foregoing Warrant, and a
proportionate part of said Warrant and the rights evidenced thereby, and does
irrevocably constitute and appoint _______________, attorney, to transfer that
part of said Warrant on the books of HERLEY INDUSTRIES, INC.
Dated: ___________________ Signature: _____________________________
Address: _____________________________
These securities may not be publicly offered or sold unless at the time of such
offer or sale, the person making such offer of sale delivers a prospectus
meeting the requirements of the Securities Act of 1933 forming a part of a
registration statement, or post-effective amendment thereto, which is effective
under said act, or unless in the opinion of counsel to the Corporation, such
offer and sale is exempt from the provisions of Section 5 of said Act.
W A R R A N T
For the Purchase of Common Stock, Par Value $.10 per Share of
HERLEY INDUSTRIES, INC.
(Incorporated under the Laws of the State of Delaware)
VOID AFTER 5 P.M.______________
No. ___
Warrant to Purchase
_______Shares
THIS IS TO CERTIFY that, for value received, ___________ is entitled,
subject to the terms and conditions set forth, at or before 5 P.M., New York
City Time, on ________________, but not thereafter, to purchase the number of
shares set forth above of Common Stock, par value $.10 per shares (the "Common
Stock"), of HERLEY INDUSTRIES, INC., a Delaware corporation (the "Corporation"),
from the Corporation at a purchase price per share of $______ if and to the
extent this Warrant is exercised, in whole or in part, during the period this
Warrant remains in force, subject in all cases to adjustment as provided in
Section 3 hereof, and to receive a certificate or certificates representing the
shares of Common Stock so purchased, upon presentation and surrender to the
Corporation of this Warrant, with the form of subscription attached hereto duly
executed, and accompanied by payment of the purchase price of each share
purchased either in cash or by certified or bank cashier's check payable to the
order of the Corporation.
1. The Corporation covenants and agrees that all shares may be
delivered upon the exercise of this Warrant and will, upon delivery, be fully
paid and non-assessable, and, without limiting the generality of the foregoing,
the Corporation covenants and agrees that it will from time to time take all
such action as may be requisite to assure that the par value per share of the
Common Stock is at all times equal to or less than the then current Warrant
purchase price per share of the Common Stock issuable upon exercise of this
Warrant.
<PAGE>
2. The rights represented by this Warrant are exercisable at the
option of the holder hereof in whole at any time, or in part from time to time,
within the period above specified at the prices specified in Section 1 hereof .
In case of the purchase of less than all the shares as to which this Warrant is
exercisable, the Corporation shall cancel this Warrant upon the surrender hereof
and shall execute and deliver a new Warrant of like tenor for the balance of the
shares purchasable hereunder.
3. The price per share at which shares of Common Stock may be
purchased hereunder, and the number of such shares to be purchased upon exercise
hereof, are subject to change or adjustment as follows:
(A) In case the Corporation shall, while this Warrant remains unexercised,
in whole or in part, and in force, effect a recapitalization of such character
that the shares of Common Stock purchasable hereunder shall be changed into or
become exchangeable for a larger or smaller number of shares, then, after the
date of record for effecting such recapitalization, the number of shares of
Common Stock which the holder hereof shall be entitled to purchase hereunder
shall be increased or decreased, as the case may be, in direct proportion to the
increase or decrease in the number of shares of Common Stock by reason of such
recapitalization, and the purchase price hereunder per share of such
recapitalized Common Stock shall, in the case of an increase in the number of
such shares, be proportionately reduced, and in the case of a decrease in the
number of such shares, shall be proportionately increased. For the purpose of
this subsection (A), a stock dividend, stock split-up or reverse split shall be
considered as a recapitalization and as an exchange for a larger or smaller
number of shares, as the case may be.
(B) In the case of any consolidation of the Corporation with, or merger of
the Corporation into, any other corporation, or in case of any sale or
conveyance of all or substantially all of the assets of the Corporation in
connection with a plan of complete liquidation of the Corporation, then, as a
condition of such consolidation, merger or sale or conveyance, adequate
provision shall be made whereby the holder hereof shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of shares of Common Stock immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby, such shares of stock or securities as may be issued in
connection with such consolidation, merger or sale or conveyance with respect to
or in exchange for the number of outstanding shares of Common Stock immediately
therefore purchasable and receivable upon the exercise of the rights represented
hereby had such consolidation, merger or sale or conveyance not taken place, and
in any such case appropriate provision shall be made with respect to the rights
and interests of the holder of this Warrant to the end that the provisions
hereof shall be applicable as nearly as may be in relation to any shares of
stock or securities thereafter deliverable upon the exercise hereof.
<PAGE>
(C) In case the Corporation shall, while this Warrant remains unexercised,
in whole or in part, and in force, issue (otherwise than by stock dividend or
stock split-up or reverse split) or sell shares of its Common Stock (hereinafter
referred to as "Additional Shares") for a consideration per share (before
deduction of expenses or commissions or underwriting discounts or allowances in
connection therewith) less than the purchase price hereunder per share, then,
after the date of such issuance or sale, the purchase price hereunder per shall
be reduced to a price determined by dividing (1) an amount equal to (a) the
total number of shares of Common Stock outstanding immediately prior to the time
of such issuance or sale multiplied by such purchase price hereunder per share,
plus (b) the consideration (before deduction of expenses or commissions or
underwriting discounts or allowances in connection therewith), if any, received
by the Corporation upon such issuance or sale, by (2) the total number of shares
of Common Stock outstanding after the date of the issuance or sale of such
Additional Shares, and the number of shares of Common Stock which the holder
hereof shall be entitled to purchase hereunder at each such adjusted purchase
price per share, at the time such adjusted purchase price per shall be in
effect, shall be the number of whole shares of Common Stock obtained by
multiplying such purchase price hereunder per share before such adjustment, by
the number of shares of Common Stock purchasable upon the exercise of this
Warrant immediately before such adjustment, and dividing the product so obtained
by such adjusted purchase price per share; provided, however, that no such
adjustment of the purchase price hereunder per share or the number of shares for
which this Warrant may be exercised shall be made upon the issuance or sale by
the Corporation of not more than 500,000 Additional Shares reserved for issuance
upon exercise of outstanding stock options or warrants.
(D) In case the Corporation shall, while this Warrant remains unexercised
in whole or in part, and in force, issue or grant any rights to subscribe for or
to purchase, or any option (other than the employee stock options referred to in
subsection (C) above) for the purchase of (i) Common Stock or (ii) any
indebtedness or shares of stock convertible into or exchangeable for Common
Stock (indebtedness or shares of stock convertible into or exchangeable for
Common Stock being hereinafter referred to as "Convertible Securities"), or
issue or sell Convertible Securities and the price per share for which Common
Stock is issuable upon the exercise of such rights or options or upon conversion
or exchange of such Convertible Securities at the time such Convertible
Securities first become convertible or exchangeable (determined by dividing (1)
in the case of an issuance or grant of any such rights or options, the total
amount, if any, received or receivable by the Corporation as consideration for
the issuance or grant of such rights or options, plus the minimum aggregate
amount of additional consideration payable to the Corporation upon exercise of
such rights or options, plus, in the case of such Convertible Securities, in the
minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange of such Convertible Securities at
the time such Convertible Securities first become convertible or exchangeable,
or (2) in the case of an issuance or sale of Convertible Securities other than
where the same or issuable upon the exercise of any such rights or options, the
<PAGE>
total amount, if any, received or receivable by the Corporation as
consideration for the issuance or sale of such Convertible Securities, plus the
minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange of such Convertible Securities at
the time such Convertible Securities first become convertible or exchangeable,
by, in either such case, (3) the total maximum number of shares of Common Stock
issuable upon the exercise of such rights or options or upon the conversion or
exchange of such Convertible Securities at the time such Convertible Securities
first become convertible or exchangeable) shall be less than the two purchase
prices hereunder per share, then the total maximum number of shares of Common
Stock issuable upon the exercise of such rights or options or upon conversion or
exchange of the total maximum amount of such Convertible Securities at the time
such Convertible Securities first become convertible or exchangeable, shall (as
of the date of the issuance or grant of such rights or options or, in the case
of the issuance or sale of Convertible Securities other than where the same are
issuable upon the exercise of rights or options, as of the date of such issuance
or sale) be deemed to be outstanding and to have been issued for said price per
share; provided that (i) no further adjustment of the purchase price shall be
made upon the actual issuance of such Common Stock upon the exercise of such
rights or options or upon the conversion or exchange of such Convertible
Securities or upon the actual issuance of Convertible Securities where the same
are issuable upon the exercise of such rights or options, and (ii) rights or
options issued or granted pro rata to shareholders without consideration and
Convertible Securities issuable by way of dividend or other distribution to
shareholders shall be deemed to have been issued or granted at the close of
business on the date fixed for the determination of shareholders entitled to
such rights, options or Convertible Securities and shall be deemed to have been
issued without consideration; and (iii) if, in any case, the total maximum
number of shares of Common Stock issued upon exercise of such rights or options
or upon conversion or exchange of such Convertible Securities is not, in fact,
issued and the right to exercise such right or option or to convert or exchange
such Convertible Securities shall have expired or terminated, then, and in any
such event, the purchase price, as adjusted, shall be appropriately readjusted
at the time of such expiration or termination. In such case, each purchase price
hereunder per share which is greater than the price per share for which Common
Stock is issuable upon conversion or exchange of such rights or options or upon
conversion or exchange of such Convertible Securities at the time such
Convertible Securities first become convertible or exchangeable, as determined
above in this subsection (D), shall thereupon be reduced to a price determined
by dividing (1) an amount equal to (a) the total number of shares of Common
Stock outstanding immediately prior to the time of the issuance or grant of such
rights or options or the issuance or sale of such Convertible Securities
multiplied by such purchase price hereunder per share, plus (b) the total
amount, if any, received or receivable by the Corporation as consideration for
such issuance or grant or such issuance or sale, plus the additional amounts
referred to and more fully set forth in clauses (1) and (2) of the parenthetical
material above in this subsection (D), whichever clause and whichever additional
amounts may be applicable, by (2) the total number of shares of Common Stock
outstanding after the date of such issuance or grant or such issuance or sale,
<PAGE>
and the number of shares of Common Stock which the holder hereof shall be
entitled to purchase hereunder at such adjusted purchase price per share, at the
time such adjusted purchase price per shall be in effect, shall be the number of
whole shares of Common Stock obtained by multiplying such purchase price
hereunder, per share, before such adjustment, by the number of shares of Common
Stock purchasable upon the exercise of this Warrant immediately before such
adjustment and dividing the product so obtained by such adjusted purchase price
per share.
(E) For the purpose of subsections (C) and (D) above, in case the
Corporation shall issue or sell Additional Shares, issue or grant any rights to
subscribe for or to purchase, or any options for the purchase of (i) Common
Stock or (ii) Convertible Securities, or issue or sell Convertible Securities
for a consideration part of which shall be other than cash, the amount of the
consideration received by the Corporation therefor shall be deemed to be the
cash proceeds, if any, received by the Corporation plus the fair value of the
consideration other than cash as determined by the Board of Directors of the
Corporation in good faith, before deduction of commissions, underwriting
discounts or allowances or other expenses paid or incurred by the Corporation
for any underwriting of, or otherwise in connection with, such issuance, grant
or sale.
(F) Subject to the provisions of subsection (G) below, in case the
Corporation shall, while this Warrant remains unexercised, in whole or in part,
and in force, make any distribution of its assets to holders of Common Stock as
a partial liquidating dividend, by way of return of capital or otherwise, then,
after the date of record for determining shareholders entitled to such
distribution, the holder hereof shall be entitled, upon exercise of this Warrant
and purchase of any or all of the shares of Common Stock subject hereto, to
receive the amount of such assets (or at the option of the Corporation, a sum
equal to the value thereof at the time of such distribution to holders of Common
Stock as such value is determined by the Board of Directors of the Corporation
in good faith) which would have been payable to such holder had he been the
holder of record of such shares of Common Stock on the record date for the
determination of shareholders entitled to such distribution.
(G) Except as otherwise provided in subsection (B) above, in the case of
any sales or conveyance of all or substantially all of the assets of the
Corporation in connection with a plan of complete liquidation of the
Corporation, in the case of the dissolution, liquidation or winding up of the
Corporation, all rights under this Warrant shall terminate on a date fixed by
the Corporation, such date so fixed to be not earlier than the date of the
commencement of the proceedings for such dissolution, liquidation or winding-up
and not later than thirty (30) days after such commencement date. Notice of such
termination of purchase rights shall be given to the registered holder hereof,
as the same shall appear on the books of the Corporation, at least thirty (30)
days prior to such termination date.
<PAGE>
(H) In case the Corporation shall, while this Warrant remains unexercised
in whole or in part, and in force, offer to the holders of Common Stock any
rights to subscribe for additional shares of stock of the Corporation, then the
Corporation shall given written notice thereof to the registered holder hereof
not less than thirty (30) days prior to the date on which the books of the
Corporation are closed or a record date fixed for the determination of
shareholders entitled to such subscription rights. Such notice shall specify the
date as to which the books shall be closed or the record date fixed with respect
to such offer or subscription, and the right of the holder hereof to participate
in such offer or subscription shall terminate if this Warrant shall not be
exercised on or before the date of such closing of the books or such record
date.
(I) Any adjustment pursuant to the foregoing provisions shall be made on
the basis of the number of shares of Common Stock which the holder hereof would
have been entitled to acquire by exercise of this Warrant immediately prior to
the event giving rise to such adjustment and, as to the purchase price hereunder
per share, whether or not in effect immediately prior to the time of such
adjustment, on the basis of such purchase price immediately prior to the event
giving rise to such adjustment. Whenever any such adjustment is required to be
made, the Corporation shall forthwith determine the new number of shares of
Common Stock which the holder shall be entitled to purchase hereunder and/or
such new purchase price per share, and shall prepare, retain on file and
transmit to the holder hereof within ten (10) days after such preparation a
statement describing in reasonable detail the method used in calculating such
adjustment(s).
(J) For the purposes of this Section 3, the term "Common Stock" shall
include all shares of capital stock authorized by the Corporation's Certificate
of Incorporation, as from time to time amended, which are not limited to a fixed
sum or percentage of par value in respect of the right of the holders thereof to
participate in dividends or in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation.
(K) Whenever the price per share hereunder, initial or adjusted, and the
number of shares of Common Stock to be purchased upon exercise hereof, initial
or adjusted, shall be changed or adjusted pursuant to the provisions of this
Section 3, the Corporation shall forthwith cause written notice setting forth
the changed or adjusted price per share hereunder and number of shares to be
purchased upon exercise hereof to be given to the holder of this Warrant.
4. The holder hereof agrees that the Warrants and shares of Common
Stock will not be offered or sold (1) unless at the time of such offer or sale,
there is delivered a prospectus meeting the requirements of the Securities Act
of 1933, as amended, forming a part of an applicable post-effective amendment to
the Registration Statement, or forming a part of a new registration statement
with respect to such offer and sale, or (2) unless in the opinion of counsel to
the Corporation satisfactory to the holder hereof, such offer and sale is exempt
from the provisions of Section 5 of the Act. In connection with the preparation
of any post-effective amendment to the Registration Statement or any new
registration statement, the holder hereof agrees to furnish the Corporation with
information, in writing, concerning the terms of the proposed offer.
<PAGE>
5. The Corporation agrees at all times to reserve or hold available a
sufficient number of shares of Common Stock to cover the number of shares
issuable upon the exercise of this and all other Warrants of the same class.
6. This Warrant shall not entitle the holder hereof to any voting
rights or other rights as a shareholder of the Corporation, or to any other
rights whatsoever except the rights herein expressed, and no dividends shall be
payable or accrue in respect of this Warrant or the interest represented hereby
or the shares purchasable hereunder until or unless, and except to the extent
that, this Warrant shall be exercised.
7. This Warrant is exchangeable upon the surrender hereof by the
holder hereof to the Corporation for new Warrants of like tenor representing in
the aggregate the right to purchase the number of shares purchasable hereunder,
each of such new Warrants to represent the right to purchase such number of
shares as shall be designated by the holder hereof at the time of such
surrender.
8. The Corporation will transmit to the holder of this Warrant such
information, documents and reports as are generally distributed to shareholders
of the Corporation concurrently with the distribution thereof to such
shareholders.
9. Notices to be given to the holder of this Warrant shall be deemed
to have been sufficiently given if delivered or mailed, addressed in the name
and at the address of such holder appearing in the records of the Corporation,
and if mailed, sent first class registered or certified mail, postage prepaid.
The address of the Corporation is 10 Industry Drive, Lancaster, Pennsylvania
17603, and the Corporation shall give written notice of any change of address to
the holder hereof.
10. The exercise of this Warrant is subject to the approval of its
issuance by the shareholders of the Corporation.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by the signature of its President and its seal affixed and attested by
its Secretary.
Dated:
HERLEY INDUSTRIES, INC.
By:
[Corporate Seal]
ATTEST:
Exhibit 5
January 13, 1996
Securities and Exchange Commission
450 Fifth Avenue
Washington, D.C. 20549
Re: Herley Industries, Inc.
Registration Statement on Form S-3
Gentlemen:
Reference is made to the filing by Herley Industries, Inc. (the "Company")
of a Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission pursuant to the provisions of the Securities
Act of 1933, as amended, covering the registration of 380,490 shares of Common
Stock of the Company, par value $.10 per share (the "Common Stock") obtainable
upon the exercise of Common Stock Purchase Warrants (the "Warrants").
As counsel for the Company, we have examined its corporate records,
including its Certificate of Incorporation, By-Laws, its corporate minutes, the
form of its Common Stock certificate and Warrants 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 Company is duly organized and validly existing under the laws of
the State of Delaware.
2. The shares of Common Stock subject to the Registration Statement have
been duly authorized and, when issued in accordance with the terms of the
Warrants and the related Warrant Certificates, as more fully described in the
Registration Statement, will be 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 to the Company, and we
hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/
BLAU, KRAMER, WACTLAR
& LIEBERMAN, P.C.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Board of Directors
Herley Industries, Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement of our report dated
September 27, 1996, included in Herley Industries, Inc. Form 10-K for the
year ended July 28, 1996, and to all references to our Firm included in this
Registration Statement.
/s/
ARTHUR ANDERSON LLP
Lancaster, Pennsylvania
January 9, 1997
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
Board of Directors
Herley Industries, Inc.
We consent to the incorporation by reference in this Registration Statement of
Herley Industries, Inc. on Form S-3 of our report dated October 13, 1994 on the
consolidated statements of operations, stockholders' equity and cash flows for
the 52 weeks ended July 31, 1994, appearing in the Annual Report on Form 10-K of
Herley Industries, Inc. for the year ended July 28, 1996 and to the reference to
us under the heading "Experts" in this Registration Statement.
/s/
WOLINETZ, GOTTLIEB AND LAFAZAN P.C.
Rockville Centre, New York
January 9, 1997
