As filed with the Securities and Exchange Commission on August 22, 1997.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RF INDUSTRIES, LTD.
(Exact Name of Registrant as Specified in its Charter)
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Nevada 88-0168936
(State of Incorporation) (I.R.S. Employer Identification No.)
7610 Miramar Road, Bldg. 6000, San Diego, CA 92126
(Address of Principal Executive Office) (Zip Code)
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Consulting Agreement dated February 13, 1996
(Full title of Plan)
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Howard Hill
7610 Miramar Road, Bldg. 6000
San Diego, CA 92126
(Name and address of agent for service)
(619) 549-6340
(Telephone Number, Including Area Code, of Agent of Service)
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Copies of all correspondence to:
Timothy J. Fitzpatrick
Fisher Thurber, Ltd.
4225 Executive Square, Suite 1600
La Jolla, California 92037-1483
(619) 535-9400
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Title of Maximum Aggregate
Securities to be Amount to be Offering Price Offering Amount of
Registered Registered (1) Per Share (2) Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock
no par value 50,000 $ 2.8125 $ 140,625 $ 42.61
shares
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h) based on the average of the bid and ask prices
of the Common Stock of the Company as reported on August 14, 1997 on
the OTC Bulletin Board.
<PAGE>
RF INDUSTRIES, LTD.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be filed with the Securities and Exchange Commission (the
Commission) pursuant to Form S-8 adopted under the Securities Act of 1933, as
amended (the Securities Act).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by RF Industries, Ltd. (the Company) with
the Commission pursuant to the Securities and Exchange Act of 1934, as amended
(the Exchange Act), are incorporated herein by reference:
A. The Companys Annual Report on Form 10-KSB for the fiscal year ended
October 31, 1996 filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
B. The Quarterly Reports on Form 10-QSB for the quarters ended January 31,
1997 and April 30, 1997 filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the registrants document
referred to in (a) above.
C. The description of the common stock, no par value, of the Company
contained in a registration statement filed under Section 12 of the Exchange
Act, including any amendments or reports filed for the purpose of updating such
description.
All documents which the Company files pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part thereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Inapplicable
1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The statutes, charter provisions, Bylaw, Indemnification Agreement, or
other arrangement under which any controlling person, director or officer of the
Registrant is insured or indemnified in any manner against any liability which
he may incur in his capacity as such, are as follows:
The registrants Articles of Incorporation, as amended provide the
corporation shall indemnify, to the fullest extent permitted by law, any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of the
corporation, by reason of the fact that he is or was a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall also indemnify, to the fullest extent permitted by law, any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses, including attorneys fees, actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the corporation.
Mr. Jack Benz, a director of the Company is party to an Indemnification
Agreement with the Company dated April 18, 1990. Under the terms of the
Indemnification Agreement the Company will pay on behalf of Mr. Benz any
expenses which Mr. Benz actually and reasonably incurs in connection with any
claim made against Mr. Benz on account of any act or omission by Mr. Benz while
acting in his capacity as a director or officer of the Company, so long as Mr.
Benz acted in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interest of the Company. The Company is obligated to
pay expenses, including attorneys fees, judgments, fines and amounts paid in
settlement of such claims made against Mr. Benz, for which under applicable law
a Nevada corporation may indemnify Mr. Benz, as such law exists or may be
amended from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
2
<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed pursuant to Item 601 of Regulation S-K:
EXHIBIT NO. TITLE
3.1 Articles of Incorporation and Amendments thereto
as filed with the Nevada Secretary of State. (1)
3.2 Bylaws of the Registrant. (1)
4.1 Consulting Agreement with Neil G. Berkman dated
February 13,1996. (2)
5.1 Opinion of Fisher Thurber LLP including consent
of such counsel. (2)
23.1 Consent of J.H. Cohn LLP (2)
23.2 Consent of Fisher Thurber LLP
(Included in Exhibit 5.1) (2)
_______________________
(1) Incorporated by reference to the exhibits filed with the Form 10-K
(File No. 0-13301) filed on August 2, 1987.
(2) Filed herewith.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the Act);
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement;
3
<PAGE>
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such informa-
tion in the registration statement;
unless, with respect to paragraphs (i) and (ii), the information required to be
included in a post- effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended ( the Exchange Act ), that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrants 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 plans 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.
C. Insofar as indemnification of liabilities arising under the Securities
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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on the ______ day of
August, 1997.
RF INDUSTRIES, LTD.
BY: /s/ Howard F. Hill
Howard F. Hill, President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURES TITLE DATE
/s/ Howard F. Hill President, CEO August 22, 1997
and Director
/s/ Terrie A. Gross CFO August 22, 1997
/s/ Jack A. Benz Director August 22, 1997
/s/ John R. Ehret Director August 22, 1997
/s/ Robert Jacobs Director August 22, 1997
5
<PAGE>
FORM S-8
RF INDUSTRIES, LTD.
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
4.1 Consulting Agreement dated February 13, 1996 with
Neil G. Berkman...............................................9
5.1 Opinion of Fisher Thurber LLP dated August 18, 1997..........12
23.1 Consent of J.H. Cohn LLP.....................................15
23.2 Consent of Fisher Thurber LLP
(Included in Exhibit 5).....................................
EXHIBIT 4.1
<PAGE>
February 2, 1996
Mr. Howard Hill
President
RF Industries, Ltd.
7610 Miramar Road
San Diego, CA 92126
Dear Howard:
This will confirm our understanding that Neil G. Berkman Associates
( NGBA ) has been retained as financial public relations counsel to RF
Industries, Ltd. (RFI) at a fee of $2,000 per month plus direct expenses for
postage, telephone and copying and the reimbursement of pre-approved out-
of-pocket expenses (billed at cost) beginning January 1, 1996. Our fee is to be
paid as invoiced, beginning January 1, 1996.
In addition to this monthly cash fee plus reimbursement of expenses, RFI
agrees immediately to issue to Neil G. Berkman a five-year option to purchase
50,000 shares of unrestricted RFI common stock, exercisable at the bid price of
$.94 per share, as of the close of trading on January 1, 1996, the effective day
of this agreement. The option will vest on a pro-rata basis over the five-year
period, with the first years vesting complete January 1, 1996, the effective
date of this agreement, with the exercise dates as shown in Table 1 (attached).
Expenses incurred by RFI to establish this option agreement (approximately
$1,500) are deductible from Berkman Associates January invoice of $2,000
For this fee, NGBA will provide its field service program of one-to-one
contact with analysts, brokers and portfolio managers in various regions of the
United States, counseling on the style and content of analyst presentations,
speeches and other presentations to the financial community as required, plus
assistance with the writing and dissemination of financial press releases and
annual and quarterly reports and the development and placement of corporate and
marketing-oriented publicity.
This agreement may be canceled by either party on thirty (30) days written
notice. Upon cancellation of this agreement, the stock option agreement is also
canceled.
It is understood that during any period of termination (thirty days), RFI
will continue to honor its fee arrangement to NGBA, including reimbursement of
expenses, and that NGBA will continue any work undertaken on behalf of RFI.
(more)
<PAGE>
BERKMAN ASSOCIATES/RF INDUSTRIES, LTD., LETTER OF AGREEMENT
February 2, 1996
Page Two
It is also understood that as your financial public relations counsel NGBA
must in all instances rely upon the accuracy and completeness of the information
supplied to us by RFI, its officers and directors. In that connection RFI
assumes full responsibility for the accuracy and completeness of such
information, and RFI agrees to indemnify and hold NGBA, its officers and
directors, harmless from all claims, costs or other expenses incurred by any of
them (including reasonable attorneys fees) arising out of or due to the
inaccuracy or incompleteness of the material or information released on behalf
of or concerning RFI which has been previously reviewed and approved for release
by the president of RFI or the corporate officer designated by the president.
In turn, NGBA agrees not to release any information on behalf of, or
otherwise concerning, RFI until such information has been reviewed and approved
by RFIs president or other corporate officer designated by the president. NGBA
agrees to indemnify and hold RFI, its officers and directors, harmless from all
claims, costs or other expenses incurred by any of them (including reasonable
attorneys fees) arising out of or resulting from the release by NGBA of
information on behalf of, or concerning, RFI without such prior clearance.
If this agreement meets with your approval, please sign one copy and return
it to me, while retaining the other copy for your files.
Sincerely,
By: /s/
Neil G. Berkman, President
AGREED TO: By: /s/
Howard Hill, President
DATE: February 13, 1996
EXHIBIT 5.1
August 18, 1997
RF Industries, Ltd.
7610 Miramar Road, Building 6000
San Diego, CA 92126
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a Registration
Statement on Form S-8 (the Registration Statement) to be filed with the
Securities and Exchange Commission to register 50,000 shares of common stock, no
par value (the Common Stock), of RF Industries, Ltd., a Nevada corporation
(the Company), issuable pursuant to the Consulting Agreement with Neil G.
Berkman dated February 13, 1996.
For purposes of rendering this opinion, we have made such legal and factual
examinations as we have deemed necessary under the circumstances and, as part of
such examination, we have examined among other things, originals and copies,
certified or otherwise, identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and relying upon the foregoing examination and assumptions,
we are of the opinion that, assuming the Registration Statement shall have
become effective pursuant to the provisions of the Securities Act of 1933, as
amended, the shares of Common Stock being offered pursuant to the referenced
Consulting Agreement, when issued in accordance with the Registration Statement
and the provisions of the referenced Consulting Agreement, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FISHER THURBER LLP
By: /s/
David A. Fisher
TJF:mrc
cc: Timothy J. Fitzpatrick
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 being filed by RF Industries, Ltd. (the "Company") of our report dated
December 13, 1996 appearing in the Company's Annual Report on Form 10-KSB (the
"Form 10-KSB") for the fiscal year ended October 31, 1996 on our audits of the
financial statements of the Company as of October 31, 1996 and for the years
ended October 31, 1996 and 1995 also appearing in the Form 10-KSB.
J.H. COHN LLP
San Diego, California
August 18, 1997
