As filed with the Securities and Exchange Commission on June 24, 1999.
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
RF INDUSTRIES, LTD.
(Exact Name of Registrant as Specified in its Charter)
---------------------------
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)
---------------------------
Employment Agreement with Howard Hill dated January 21, 1998
Employment Agreement with Richard LaFay dated January 1, 1998
Employment Agreement with Leslie Perlman dated January 21, 1998
(Full title of Plan)
---------------------------
Howard Hill
President and Chief Executive Officer
7610 Miramar Road, Bldg. 6000
San Diego, CA 92126
(Name and address of agent for service)
(619) 549-6345
(Telephone Number, Including Area Code, of Agent of Service)
---------------------------
Copies of all correspondence to:
Timothy J. Fitzpatrick, Esq.
Fisher Thurber LLP
4225 Executive Square, Suite 1600
La Jolla, California 92037-1483
(619) 535-9400
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price per Aggregate Offering Registration
to be registered registered(1) Share (2) Price(2) Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock no par
value....................... 700,000 shares $1.84 $1,288,000 $358.06
- -------------------------------------------------------------------------------------------------------------------------
</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 June 23, 1999 on the
Nasdaq SmallCap Market.
<PAGE>
RF INDUSTRIES, LTD.
700,000 SHARES OF COMMON STOCK
The selling stockholders of RF Industries, Ltd. ("RF") listed in this
prospectus may offer and resell up to 700,000 shares of RF common stock under
this prospectus. All of the shares offered hereunder are to be sold by the
selling stockholders. We will not receive any of the proceeds from the sale of
the shares by the selling stockholders.
The selling stockholders acquired the shares to be resold in this
Prospectus as part of their compensation from us. The selling stockholders will
pay all sales commissions and similar expenses.
Our common stock is traded on the Nasdaq SmallCap Market under the symbol
"RFIL." On June 7, 1999, the last sale price of our common stock as reported on
the Nasdaq SmallCap Market was $1.84.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD PURCHASE
SHARES ONLY IF YOU CAN AFFORD A COMPLETE LOSS OF YOUR INVESTMENT.
Neither the Securities and Exchange Commission ("SEC") nor any state
securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this Prospectus. Any representation to the
contrary is a criminal offense.
See "Risk Factors" beginning on Page 5 for a discussion of certain factors
that should be considered by prospective purchasers of shares of our common
stock.
---------------------------
The date of this Prospectus is June 24, 1999.
<PAGE>
In this Prospectus, unless indicated otherwise, "RF," the "Company," "we,"
"us" and "our" refer to RF Industries, Ltd.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Regional Offices of the SEC at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and at 75
Park Place, New York, New York 10007. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our common stock is traded on
The Nasdaq SmallCap Market. You may inspect reports and other information
concerning us at the offices of the National Association of Securities Dealers,
Inc., Market Listing Section, 1735 K Street, N.W., Washington, D.C. 20006. These
filings and other information may also be inspected without charge at a Web site
maintained by the SEC. The address of the site is http://www.sec.gov.
INFORMATION INCORPORATED BY REFERENCE
This Prospectus is part of a registration statement filed with the SEC. The
SEC allows us to "incorporate by reference" into this Prospectus the information
that we file with them, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is considered to be part of this Prospectus, and information that we
file later with the SEC before we file a post-effective amendment which states
all the securities we registered were sold or which deregisters all securities
that were not sold will automatically update and supersede this information. We
are incorporating by reference the documents listed below and any future filings
as described in the preceding sentence that we will make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior
to the sale of all the shares covered by this Prospectus.
- Our Annual Report on Form 10-KSB for the fiscal year ended October 31,
1998 and all amendments thereto.
- Our 10-Q Quarterly Reports on Form 10-QSB filed for the quarters ended
January 31, 1999 and April 30, 1999 and all amendments thereto.
- The description of our common stock contained in RF's registration
statement on Form 10 and any amendments to that description.
We will provide without charge to each person to whom this Prospectus is
delivered, upon oral or written request, a copy of any or all of the foregoing
documents incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
the information that this Prospectus incorporates). Written or telephone
requests should be directed to RF Industries, Ltd., 7610 Miramar Road, Bldg.
6000, San Diego, CA 92126, telephone number (619) 549-6345.
You should rely only on the information incorporated by reference or
provided in this Prospectus or any supplement. RF has not authorized anyone else
to provide you with different information. The selling stockholders will not
make an offer of these shares in any state where the offer is not permitted. You
should not assume that the information in this Prospectus or any supplement is
accurate as of any date other than the date of those documents.
3
<PAGE>
FORWARD LOOKING INFORMATION
This Prospectus, including the information incorporated by reference
herein, contains forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E
of the Exchange Act. Our actual results could differ materially from those
projected in the forward-looking statements as a result of the risk factors set
forth below. In particular, please review the sections captioned "Management's
Discussion and Analysis of Financial Condition and Results of Operations" in our
annual report on Form 10-KSB for the fiscal year ended October 31, 1998 and our
quarterly report on Form 10-Q for the quarters ended January 31, 1999 and April
30, 1999, which reports are incorporated herein by reference and such section of
any subsequently filed Exchange Act reports. In connection with forward-looking
statements which appear in these disclosures, prospective purchasers of the
shares offered hereby should carefully consider the factors set forth in this
Prospectus under "Risk Factors."
SUMMARY INFORMATION REGARDING RF INDUSTRIES, LTD.
We have two operating divisions, the RF Connector Division and the RF
Neulink Division.
RF Connector Division
We are engaged through our RF Connector Division in the design, manufacture
and distribution of coaxial connectors used in radio communication applications
as well as in computers, test instruments, PC (Personal Computer) LANs (Local
Area Networks) and antenna devices. Our coaxial products are distributed through
approximately 70 domestic and international distributors. RF Connector has
introduced various subminiature cable connectors; in series and between-series
adapters; cellular connectors; connectors for large diameter, low-loss cables
and corrugated cable applications. RF Connector is also engaged in the
manufacturing and distribution of RF cable assemblies. Our cable assemblies are
manufactured for end user specifications and are sold through distribution
arrangements or directly to major OEM (Original Equipment Manufacturer)
accounts.
RF Neulink Division
We design and manufacture, through our RF Neulink Division, wireless
digital transmission products, commonly known as RF data links and wireless
modems. A few of the various applications for these products include industrial
monitoring and control of remote sensors and devices (SCADA), wireless linking
of remote weather and seismic sites, multipoint military training range
information systems, infrastructure linking of public safety communications
networks and automatic vehicle location systems.
We consider these divisions to be operating in a single segment involving
the design, manufacture and/or sale of communications equipment.
Our principal executive office is located at 7610 Miramar Road, Building
#6000, San Diego, California.
A more complete description of our business and its recent activities can
be found in the documents described in "WHERE YOU CAN FIND MORE INFORMATION."
4
<PAGE>
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing our company. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also impair our business
operations.
If any of the following risks actually occur, our business, financial
condition or results of operations could be materially adversely affected. In
such case, the trading price of our common stock could decline and you may lose
all or part of the money you paid to buy our common stock.
Technological Change
As a result of rapid technological change in our industry, our position in
existing markets or other markets that we may enter can be eroded rapidly by
product advances. The life cycles of our products are difficult to estimate. Our
growth and future financial performance depends in part upon our ability to
improve existing products, develop and introduce new products that keep pace
with technological advances, meet changing customer needs and respond to
competitive products. We cannot assure you that our existing customers will
continue to utilize our products, that the technologies used by our customers
will continue to employ our products or that new products developed by us will
achieve market acceptance. Further, shifts in demand for the technologies and
products of our customers may have an adverse effect on demand for our products.
Dependence on RF Connector Division Products
Sales of RF Connector division products accounted for approximately 79% of
our total sales for the fiscal year ended October 31, 1999, while sales of RF
Neulink division products accounted for approximately 21% for the same period.
We expect the RF Connector division products to account for a significant
portion of our revenues for the near future. Any factors such as competition or
technological change adversely affecting the pricing of, demand for, or market
acceptance of our RF Connector products until such time, if ever, that RF
Neulink products constitute a more significant percentage of our revenue, could
materially adversely affect our business, operating results and financial
condition.
Cyclicality May Lead to Fluctuations in Demand
Historically, the communications industry has been cyclical, affected by
both general economic conditions and industry-specific cycles. Depressed general
economic conditions and cyclical downturns in the communications industry have
each had an adverse effect on sales of communications equipment, OEMs and their
suppliers, including the Company. In addition, the life cycles of existing
communications products and the timing of new product development and
introductions can affect demand for communications components. The connector
industry is expected to be subject to fluctuations in demand for products in the
future. Reduced demand for communication products or their components could have
a material adverse effect on us. As a result, any cyclical downturn in the
communications industry could have a material adverse effect on us.
5
<PAGE>
Significant Competition
The connector industry is highly competitive and fragmented, with over
approximately 50 competitors. We believe that competition in our targeted
segments is primarily based on quality, reliability, design capability, delivery
time and price. Many of our current potential competitors have much greater
financial, technical, marketing and other resources than RF. As a result, they
may be able to respond more quickly to new or emerging technologies and changes
in customer needs. They may also be able to devote greater resources to the
development, promotion and sale of their products than we can. We may not be
able to compete successfully against current and future competitors. In
addition, competitive pressures faced by us may materially adversely affect our
business, operating results and financial condition.
Risks of Foreign Operations
For the year ended October 31, 1998, export sales to our customers in South
America, Canada, Mexico, Europe, Australia, the Middle East and the Orient
accounted for approximately 19% of our sales. Seasonal buying patterns in such
foreign markets, changes in local economic or political conditions, worldwide
demand for connector products and changes in technology could impact our
products and sales and adversely affect us. Our RF Connector division purchases
almost all of its connector products from contract manufacturers in Taiwan and
in the United States, and changes in quality, price, availability or demand
could adversely affect us.
Our international operations are subject to a variety of risks associated
with conducting business internationally, including: (i) longer payment cycles;
(ii) problems in collecting accounts receivable; (iii) fluctuations in currency
exchange rates; (iv) difficulties in managing international operations; and (v)
increases in tariffs, duties, price controls, or other restrictions or trade
barriers imposed by foreign countries. These factors could materially adversely
affect our business, operating results and financial conditions.
We Depend Significantly on Third Parties to Sell and Market Our Products
We market our RF Connector products primarily through warehousing
distributors and original equipment manufacturers, and we market and sell our RF
Neulink products through manufacturer representatives, system integrators and
original equipment manufacturers ("OEM"). For the fiscal year ended October 31,
1991, distributors accounted for 75% of the RF Connector division sales while
OEM's accounted for approximately 25% of sales of our RF Connector division. We
may not be able to attract and retain a sufficient number of qualified
distributors to successfully market our RF Connector and other products. The
failure to attract and retain a sufficient number of OEM's and distributors
could have a material adverse effect on our business, financial condition and
results of operations. Selling through indirect channels such as distributors
may limit our contacts with our customers. As a result, our ability to
accurately forecast sales, evaluate customer satisfaction and recognize emerging
customer requirements may be hindered.
Control by Principal Stockholders
Officers and directors, as of April 30, 1999, own or could own, upon
exercise of options which are immediately exercisable, approximately 20.7% of
the outstanding Common Stock of the Company. Also, Hytek International, Inc.
owns approximately 41.2% of our Common Stock as of April 30, 1999 and is
therefore considered an affiliate. Accordingly, these parties will be able to
influence the outcome of any corporate or other matter submitted to the
Company's stock holders for approval, including any merger, consolidation sale
of all or substantially all of the Company's assets. Such concentrated share
ownership may prevent or discourage potential bids to acquire us unless the
terms are approved by the officers and directors.
6
<PAGE>
Dependence on Key Personnel
Our success will depend to a significant extent on the continued service of
our senior executives and certain other key employees, including certain sales,
consulting, technical and marketing personnel. If we lost the services of one or
more of our key executives or employees (including if one or more of our
officers or employees decided to join a competitor or otherwise compete directly
or indirectly with us), this could materially adversely affect our business,
operating results, and financial condition.
Volatility of Trading Prices
In the past several years the market price of RF common stock has varied
greatly, and the volume of RF common stock traded has fluctuated greatly as
well. These fluctuations often occur independently of any announcements by RF or
of general market fluctuations. We expect such fluctuations to continue. Factors
that may result in such fluctuations include:
o any shortfall in revenues or net income from revenues or net income
expected by securities analysts
o announcements of new products by RF or our competitors
o quarterly fluctuations in our financial results or the results of
other connector and communications-related companies, including those
of our direct competitors
o changes in analysts' estimates of our financial performance, the
financial performance of our competitors or the financial performance
of connector and communications-related companies in general
o general conditions in the connector and communications industries
o changes in prices for our products or the products of our competitors
o changes in our revenue growth rates or the growth rates of our
competitors
o sales of large blocks of RF common stock
o conditions in the financial markets in general
In addition, the stock market may from time to time experience extreme
price and volume fluctuations. Many technology companies in particular have
experienced such fluctuations. Often such fluctuations have been unrelated to
the operating performance of the specific companies. The market prices of RF's
common stock may experience significant fluctuations in the future.
7
<PAGE>
SELLING STOCKHOLDERS
The table below sets forth certain information regarding the selling
stockholders as of June 1, 1999. The shares are being registered to permit
public sales of the shares, and the selling stockholders may offer the shares
for resale from time to time. See "Plan of Distribution."
Except as described, the selling stockholders have not held any position or
office with, been employed by, or otherwise had a material relationship with RF
or any of its predecessors or affiliates within the past three years. Howard
Hill has been our President and a Director since 1993. Leslie Perlman has been
the Vice President of Sales and Marketing of the RF Connector Division since
1998. Richard LaFay has been the President of the RF Connector Division since
January 1997.
The table below sets forth the names of the selling stockholders and the
number of shares owned, directly and beneficially, by such stockholders.
Selling Stockholders Number Beneficially Owned Number Offered Hereby
- -------------------- ------------------------- ---------------------
Howard Hill 453,660(1) 500,000(2)
Richard LaFay 32,500(3) 100,000
Leslie Perlman 32,500(4) 100,000
-------- -------
Total 569,000 700,000
======= =======
(1) Howard Hill owns 26,000 shares of Common Stock and options to acquire an
additional 436,660 shares of Common Stock which are exercisable within 60
days hereof.
(2) Howard Hill has the right to acquire a total of 500,000 shares of Common
Stock pursuant to the terms of his employment agreement with the Company
dated January 21, 1998. Options for the purchase of 83,335 shares vest
annually from July 6, 1993 through July 6, 1999.
(3) Richard LaFay owns 10,000 shares of Common Stock, an option to acquire an
additional 22,500 shares of Common Stock exercisable within 60 days hereof,
and an option pursuant to his employment agreement to acquire an additional
77,500 shares of Common Stock which is exercisable over the term of his
employment agreement.
(4) Leslie Perlman owns an option to acquire 32,500 shares of Common Stock of
the Company exercisable within 60 days hereof and an option to acquire an
additional 77,500 shares of Common Stock which is exercisable in
installments over the term of his employment agreement.
In recognition of the fact that investors may wish to be legally permitted
to sell their shares when they deem the sale to be appropriate, we have filed
with the SEC under the Securities Act a Registration Statement with respect to
the resale of the shares from time to time and have agreed to prepare and file
such amendments and supplements to the Registration Statement as may be
necessary to keep the Registration Statement effective until the shares are no
longer required to be registered for the sale thereof by the selling
stockholders.
The shares being offered by the selling stockholders hereunder were
acquired in connection with their respective Employment Agreements.
8
<PAGE>
PLAN OF DISTRIBUTION
We are registering the shares on behalf of the selling stockholders. As
used in this Prospectus, "selling stockholders" includes donees, pledgees,
transferees or other successors in interest (including corporate or partnership
distributees of the selling stockholders which are privately held corporations
or partnerships) selling shares received from a named selling stockholder after
the date of this Prospectus. We will pay all costs, expenses and fees in
connection with the registration of the shares offered hereby. Any brokerage
commissions and similar selling expenses attributable to the sale of shares will
be paid by the selling stockholders.
Sales of shares may be made by selling stockholders from time to time in
one or more types of transactions (which may include block transactions) on the
Nasdaq SmallCap Market or on any other market on which our shares may then be
trading, in the over-the-counter market, in negotiated transactions, through put
or call options transactions relating to the shares, through short sales of
shares, or a combination of such methods of sale, at market prices prevailing at
the time of sale, or at negotiated prices. Such transactions may or may not
involve brokers, dealers or underwriters. The selling stockholders have advised
us that they have not entered into any agreements, understandings or
arrangements with any underwriters or broker-dealers regarding the sale of their
shares. The selling stockholders have also advised us that no underwriter or
coordinating broker is acting in connection with the proposed sale of shares by
the selling stockholders, however, the selling stockholders may enter into
agreements, understandings or arrangements with an underwriter or broker-dealer
regarding the sale of their shares in the future.
The selling stockholders may make sales by selling shares directly to
purchasers or to or through broker-dealers or underwriters, which may act as
agents or principals. These broker-dealers and underwriters may receive
compensation in the form of discounts, concessions, or commissions from the
selling stockholders and/or the purchasers of shares for whom the broker-dealers
and underwriters may act as agents or to whom they sell as principal, or both.
This compensation to a particular broker-dealer or underwriter might be in
excess of customary commissions.
The selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in short
sales of our common stock in the course of hedging the positions they assume
with the selling stockholders. The selling stockholders may also enter into
options or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealers or other
financial institutions of the shares offered hereby, which shares such
broker-dealers or other financial institutions may resell pursuant to this
Prospectus.
The selling stockholders an any broker-dealers or underwriters that act in
connection with the sale of shares might be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, and any commissions received
by broker-dealers or underwriters and any profit on the resale of the shares
sold by them while acting as principals might be deemed to be underwriting
discounts or commissions under the Securities Act. We may agree to indemnify
each selling stockholder against certain liabilities, including liabilities
arising under the Securities Act. The selling stockholders may agree to
indemnify any agent, dealer, broker-dealer or underwriter that participates in
transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act.
Because selling stockholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, the selling stockholders will be
subject to the Prospectus delivery requirements of the Securities Act and the
rules promulgated thereunder. We have informed the selling stockholders that the
antimanipulative provisions of Regulation M promulgated under the Exchange Act
may apply to their sales in the market.
9
<PAGE>
Selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act, provided
they meet the criteria and conform to the requirements of that rule.
All or any part of the shares offered hereby may or may not be sold by the
selling stockholders.
USE OF PROCEEDS
We will not receive an proceeds from the sale of the common stock by the
selling stockholders.
LEGAL MATTERS
The validity of the shares is being passed upon by Fisher Thurber LLP, San
Diego, California.
EXPERTS
The consolidated financial statements incorporated by reference in this
Prospectus from RF Industries, Ltd.'s Annual Report on Form 10-KSB for the year
ended October 31, 1998 have been audited by J.H. Cohn, LLP, independent public
accountants, as stated in their report dated December 3, 1998, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
10
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus. If given or made, such information or representations must not be
relied upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any of the
securities other than the securities to which it relates, or an offer or
solicitation of an offer to buy any of the securities to which it relates, or an
offer or solicitation to any person in any jurisdiction where such an offer or
solicitation would be unlawful. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstances create an implication that
information contained herein is correct as of any time subsequent to the date
hereof.
---------------------
TABLE OF CONTENTS
Page
-----
Where You Can Find More Information......3
Information Incorporated by Reference....3
Forward Looking Information..............4
Summary Information Regarding
RF Industries, Ltd.....................4
Risk Factors.............................5
Selling Stockholders.....................7
Plan of Distribution.....................8
Use of Proceeds.........................10
Legal Matters...........................10
Experts.................................10
------------------
RF INDUSTRIES, LTD.
700,000
Shares of Common Stock
--------------
PROSPECTUS
--------------
June 24, 1999
11
<PAGE>
RF INDUSTRIES, LTD.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information filed with the Commission are
hereby incorporated by reference in this Prospectus:
(1) The Company's Annual Report on Form 10-KSB for the fiscal year
ending October 31, 1998, filed pursuant to Section 13 of the Exchange Act.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ending January 31, 1999 and April 30, 1999, filed pursuant to Section 13 of the
Exchange Act.
(3) The description o f the Company's Common Stock contained in the
Company's Registration Statement Form 8-A filed pursuant to Section 15(d) of the
Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XV of the Company's Articles of Incorporation, as amended,
provides for the indemnification of directors, employees and agents to the
fullest extent permissible under Nevada Law. This Article also provides for the
indemnification of officers, directors and third parties acting on behalf of the
Company if such person acted in good faith and in a manner reasonably believed
to be in and not opposed to the best interest of the Company, and, with respect
to any criminal action or proceeding, the indemnified party had no reason to
believe his conduct was unlawful.
The Company believes it is the position of the Securities and Exchange
Commission that insofar as the foregoing provisions may disclaim liability
arising under the Securities Act of 1933, such provisions are against public
policy and, therefore, unenforceable.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The issuance of the Options and the shares of Common Stock underlying
the Options being offered by the resale prospectus included herein were deemed
to be exempt from registration under the Securities Act in reliance on Section
4(2) of the Securities Act and/or Regulation D promulgated thereunder, as
transactions by an issuer not involving a public offering. Appropriate legends
were and will be affixed to the share certificates and instruments issued in
such transactions. All recipients had adequate access, through their
relationship with the Company, to information about the Registrant.
ITEM 8. EXHIBITS.
Exhibit
Number Description
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
24.1 Power of Attorney (see page II-4).
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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.
II-2
<PAGE>
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to law, the Company's Certificate of Incorporation,
Bylaws or indemnification agreements, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company in a successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Company will,
unless in the opinion of its counsel the matter has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on this 10th day of
June, 1999.
RF INDUSTRIES, LTD.
By: /s/ Howard F. Hill
----------------------
Howard F. Hill
II-3
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE
APPEARS BELOW CONSTITUTES AND APPOINTS HOWARD F. HILL AS HIS OR HER ATTORNEY-
IN-FACT, WITH FULL POWER OF SUBSTITUTION FOR HIM OR HER IN ANY AND ALL
CAPACITIES TO SIGN ANY AMENDMENTS TO THIS REGISTRATION STATEMENT ON FORM S-8,
AND TO FILE THE SAME, WITH EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION
THEREWITH, WITH THE SECURITIES AND EXCHANGE COMMISSION, HEREBY RATIFYING AND
CONFIRMING ALL THAT SAID ATTORNEY-IN-FACT, OR HIS SUBSTITUTES, MAY DO OR CAUSE
TO BE DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
President and Chief Executive Officer
/s/ Howard F. Hill (Principal Executive Officer) June 10, 1999
- ----------------------
Howard F. Hill
Chief Financial Officer (Principal
/s/ Terrie Gross Financial and Accounting Officer) June 10, 1999
- ---------------------
Terrie Gross
/s/ John Ehret Director June 10, 1999
- ----------------------
John Ehret
/s/ Henry E. Hooper Director June 10, 1999
- ----------------------
Henry E. Hooper
/s/ Robert Jacobs Director June 10, 1999
- ---------------------
Robert Jacobs
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney (contained on page II-4)
II-5
Exhibit 5.1
June 24, 1999
Board of Directors
RF Industries, Ltd.
7610 Miramar Road
San Diego, CA 92126-4202
Re: Form S-8 Registration Statement
Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission on or about June 24, 1999 to register a total of 700,000 shares of
common stock, no par value per share (the "Common Stock"), of RF Industries,
Ltd., a Nevada corporation (the "Company") for the options granted to purchase
Common Stock of the Company pursuant to the employment agreements of Messrs.
Hill, LaFay and Perlman.
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 and 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 in the Registration
Statement, when issued in accordance with the Registration Statement and the
provisions of the respective employment agreements will be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement., and any amendments thereto.
FISHER THURBER LLP
By: /s/ David A. Fisher
------------------------
David A. Fisher
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 being filed with the Securities and Exchange Commission
(the "SEC") of our report, dated December 3, 1998, on our audits of the
financial statements of RF Industries, Ltd. (the "Company") as of and for the
years ended October 31, 1998 and 1997, which appears in the Company's Annual
Report on Form 10-KSB for the fiscal year ended October 31, 1998 previously
filed with the SEC.
/s/ J.H. Cohn LLP
-----------------------
J.H. COHN LLP
San Diego, California
June 18, 1999
