As filed with the Securities and Exchange Commission on December 17, 1998
Registration No. 333-68603
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE
Amendment No. 1
to
FORM S-4
REGISTRATION STATEMENT
Under
the Securities Act of 1933
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HERLEY INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 3697 23-2413500
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
Lee N. Blatt, Chairman
Herley Industries, Inc.
10 Industry Drive 10 Industry Drive
Lancaster, Pennsylvania 17603 Lancaster, Pennsylvania 17603
(717) 397-2777 (717) 397-2777
(Address, including zip code, and (Name, address, including zip
telephone number including area code, code, and telephone number,
of Registrant's principal executive including area code, of agent
offices) for service)
Copies to:
David H. Lieberman, Esq. Mitchell Tuckman, President Michael I. Stolzar, Esq.
Blau, Kramer, Wactlar General Microwave Corporation Zissu Gumbinger &
& Lieberman, P. C. 5500 New Horizons Blvd. Stolzar, LLP
100 Jericho Quadrangle Amityville, New York 11701 950 Third Avenue
Suite 225 (516) 226-8900 New York, New York 10022
Jericho, New York 11753 (516) 226-8966 Fax (212) 371-3900
(516) 822-4820 (212) 888-3182 Fax
(516) 822-4824 Fax
Approximate date of commencement of proposed sale to the public: Upon
consummation of the Merger described herein.
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If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box [ ] .
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Title of Each Class of Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price per Aggregate Offering Registration
Registered Registered (1) Security Price (2) Fee (3)
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<S> <C> <C> <C> <C>
Common Stock, par
value $.10 per share 966,675 $18.00 $17,647,294 $4,906
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Common Stock
Purchase Warrants 966,675 -- -- --
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Total 966,675 $18.00 $17,647,294 $4,906
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<FN>
(1) Represents the number of Common Stock Purchase Warrants of the Registrant
which may be issued to former shareholders of General Microwave Corporation
("GMC") pursuant to the Merger described herein and the number of shares of
Common Stock underlying such Warrants.
(2) Each share of GMC will be converted into cash and a Common Stock Purchase
Warrant to receive one share of Common Stock of the Registrant pursuant to
the Merger described herein. Pursuant to Rule 457(f) under the Securities
Act of 1933, the registration fee has been calculated as of December 8,
1998. The number shown is rounded from $4,905.95.
(3) Previously Paid.
</FN>
</TABLE>
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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.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
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Under the provisions of the Certificate of Incorporation and By-Laws of
Registrant, each person who is or was a director or officer of Registrant shall
be indemnified by Registrant as of right to the full extent permitted or
authorized by the General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the merits
of defense of a suit or proceeding brought against him by reason of the fact
that he is a director or officer of Registrant, he shall be indemnified against
expenses (including attorneys' fees) reasonably incurred in connection with such
action.
If unsuccessful in defense of a third-party civil suit or a criminal suit
is settled, such a person shall be indemnified under such law against both (1)
expenses (including attorneys' fees) and (2) judgments, fines and amounts paid
in settlement if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of Registrant, and with respect
to any criminal action, had no reasonable cause to believe his conduct was
unlawful.
If unsuccessful in defense of a suit brought by or in the right of
Registrant, or if such suit is settled, such a person shall be indemnified under
such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
Registrant except that if such a person is adjudicated to be liable in such suit
for negligence or misconduct in the performance of his duty to Registrant, he
cannot be made whole even for expenses unless the court determines that he is
fairly and reasonably entitled to be indemnified for such expenses.
The officers and directors of registrant are covered by officers' and
directors' liability insurance. The policy coverage is $1,500,000, which
includes reimbursement for costs and fees. There is a maximum aggregate
deductible for each loss under the policy of $150,000. The Registrant has
entered into Indemnification Agreements with each of its executive 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.
In addition, the Registrant has agreed pursuant to the Agreement and Plan
of Merger between GMC, eleven GMC shareholders, Acquisition and Herley to permit
GMC to cause its current directors and officers liability insurance policies to
remain in effect until three years after te effective time with respect to
former directors and officers of GMC and that, to the extent that GMC fails to
pay in full any retentions or deductibles payable thereunder by indemnified
parties, Registrant shall pay such amounts.
<PAGE>
Item 21. Exhibits.
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2.1 Agreement and Plan of Merger dated August 21, 1998 by and among GMC,
eleven GMC shareholders, Acquisition and Herley (incorporated by
reference to Exhibit 1 to Schedule 13D dated August 28, 1998).
2.2 Amendment No. 1 to Agreement and Plan of Merger dated November 18,
1998 by and among GMC, eleven GMC shareholders, Acquisition and
Herley. *
3.1 Certificate of Incorporation, as amended (incorporated by reference to
Exhibit 3.1 to Herley's Registration Statement on Form S-2, File No.
87160).
3.2 By-Laws of Herley, as amended (incorporated by reference to Exhibit
3.2 to Herley's Registration Statement on Form S-1, File No.
333-39767).
4.2 Form of Warrant Certificate (incorporated by reference to Exhibit 4 to
Form 8-A Filed December 11, 1998)
4.3 Form of Warrant Agreement between the Company and the Warrant Agent
(incorporated by reference to Exhibit 3 to Form 8-A filed December 11,
1998).
5 Opinion of Blau, Kramer, Wactlar & Lieberman, P. C.*
10.1 Form of Exchange Agent Agreement between Registrant and American Stock
Transfer & Trust Co.*
23.1 Form of Consent of Blau, Kramer, Wactlar & Lieberman, P. C., included
in their opinion filed as Exhibit 5*
23.2 Consent of Arthur Andersen LLP*
23.3 Consent of Wolinetz, Gottlieb & Lafazan, P.C.*
23.4 Consent of KPMG Peat Marwick LLP *
23.5 Consent of Igal Brightman & Co. *
24 Powers of Attorney, included on signature page
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*Previously filed
<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
requirements for filing on Form S-4 and has duly caused this Post-Effective
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Lancaster, Pennsylvania on the 17th
day of December, 1998.
Herley Industries, Inc.
By:/s/ Lee N. Blatt
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Lee N. Blatt
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment to the Registration Statement has been signed on
December 17, 1998 by the following persons in the capacities indicated.
Signature Title
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/s/ Lee N. Blatt Chairman of the Board
Lee N. Blatt (Chief Executive Officer)
Myron Levy * President and Director
Myron Levy
Anello C. Garefino * Vice President - Finance, Treasurer (Chief
Anello C. Garefino Financial Officer and Principal Accounting
Officer)
Thomas J. Allshouse * Director
Thomas J. Allshouse
David H. Lieberman * Secretary and Director
David H. Lieberman
John Thonet * Director
John Thonet
Alvin M. Silver * Director
Alvin M. Silver
Edward K. Walker, Jr. * Director
Edward K. Walker, Jr.
*By: /s/Lee N. Blatt
Lee N. Blatt
Attorney-in-Fact
