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As
filed with the Securities and Exchange
Commission on July 3, 2006
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Reg.
No.
333-
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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 issuer as specified in its charter)
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Nevada
(State
or other jurisdiction of
incorporation
or organization)
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88-0168936
(I.R.S.
Employer
Identification
No.)
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7620
Miramar Road
San
Diego, CA 92126
(818)
549-6340
(Address,
including zip code, and telephone number,
including
area code, of Registrant’s principal executive offices)
─────────────────────────
GEORGE
MARKS EMPLOYMENT AGREEMENT
(Full
title of the plans)
─────────────────────────
Howard
Hill, Chief Executive Officer
RF
INDUSTRIES, LTD.
7620
Miramar Road
San
Diego, CA 92126
(858)
549-6340
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copy
to:
Istvan
Benko, Esq.
Troy
& Gould Professional Corporation
1801
Century Park East, Suite 1600
Los
Angeles, California 90067
(310)
553-4441
FAX:
(310) 201-4746
CALCULATION
OF REGISTRATION FEE
|
Title
of securities
to
be registered
|
Amount
to be registered
|
Proposed
maximum
offering
price
per
share (1)
|
Proposed
maximum
aggregate
offering
price(1)
|
Amount
of
registration
fee(1)
|
|
Common
Stock, $.01 par value
|
10,000
shares
|
$5.13
|
$51,300
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$5.49
|
|
Common
Stock, $.01 par value
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90,000
shares
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$5.81
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$522,900
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$55.95
|
|
Total
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100,000
shares
|
|
$574,200
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$61.44
|
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(1)
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With
respect to 10,000 shares for which the offering price is known, the
registration fee was determined in accordance with Rule 457(h) under
the Securities Act of 1933. With respect to the remaining 90,000
shares of
common stock that are issuable under this plan for which the offering
price is not known, the proposed maximum offering price per share
and
maximum aggregate offering price for these shares were estimated
pursuant
to Rule 457(h) of the Securities Act on the basis of the high and
low
trading prices of the registrant’s common stock as reported on the Nasdaq
Capital Market on June 26, 2006.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Item
1. |
Plan
Information.*
|
| Item
2. |
Registrant
Information and Employee Plan Annual
Information.*
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_____________
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*
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Information
required by Part I to be contained in the Section 10(a) prospectus
is
omitted from the Registration Statement in accordance with Rule 428
of the
General Rules and Regulations under the Securities Act of 1933 and
the
Note to Part I of Form S-8.
|
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
| Item
3. |
Incorporation
of Documents by Reference
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The
following documents filed by RF Industries, Ltd. (the “Company”) with the
Securities and Exchange Commission (the “Commission”) under the Securities
Exchange Act of 1934 (the “Exchange Act”) (Commission File No. 000-13301) are
incorporated herein by reference: (a) the Company’s Annual Report on Form
10-KSB, as amended, for the fiscal year ended October 31, 2005; (b) the Current
Report on Form 8-K filed with the Commission on March 22, 2006, (c) the Current
Report on Form 8-K filed with the Commission on June 15, 2006, (d) the Company’s
Quarterly Report on Form 10-QSB for the quarter ended January 31, 2006; (e)
the
Company’s Quarterly Report on Form 10-QSB for the quarter ended April 30, 2006;
and (f) the description of the Company’s Common Stock contained in the Company’s
Registration Statement on Form 8-A, including any amendment or report
subsequently filed by the Company for the purpose of updating that
description.
In
addition, any document filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
Common Stock then remaining unsold, will be deemed incorporated herein by
reference and to be a part hereof from the date of filing of such
document.
| Item
6. |
Indemnification
of Directors and Officers
|
Subsection
1 of Section 78.7302 of the Nevada General Corporation Law (“NGCL”) provides
that a corporation may indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(except in an action brought by or on behalf of the corporation) if that person
is or was a director, officer, employee or agent of the corporation, or is
or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation or enterprise, against expenses, including
attorneys’ fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by that person in connection with such action, suit or
proceeding, if that person acted in good faith and in a manner which that person
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon
a
plea of nolo contendere or its equivalent, alone, does not create a presumption
that the person did not act in good faith and in a manner which the person
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and that, with respect to any criminal action or proceeding, the
person had reasonable cause to believe his action was unlawful.
Subsection
2 of Section 78.7502 of the NGCL provides that a corporation may indemnify
any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit brought by or on behalf of
the
corporation to procure a judgment in its favor because the person acted in
any
of the capacities set forth above, against expenses, including amounts paid
in
settlement and attorneys’ fees, actually and reasonably incurred by that person
in connection with the defense or settlement of such action or suit, if the
personal acted in accordance with the standard set forth above, except that
no
indemnification may be made in respect of any claim, issue or matter as to
which
such person shall have been adjudged by a court of competent jurisdiction after
exhaustion of all appeals therefrom to be liable to the corporation or for
amounts paid in settlement to the corporation unless and only to the extent
that
the court in which such action or suit was brought or other court of competent
jurisdiction determines that, in view of all the circumstances of the case,
such
person is fairly and reasonably entitled to indemnity for such expenses as
the
court deems proper.
Section
78.751 of the NGCL provides that unless indemnification is ordered by a court,
the determination to provide indemnification must be made by the stockholders,
by a majority vote of a quorum of the board of directors who were not parties
to
the action, suit or proceeding, or in specified circumstances by independent
legal counsel in a written opinion. In addition, the articles of incorporation,
bylaws or an agreement made by the corporation may provide for the payment
of
the expenses of a director or officer of the expenses of defending an action
as
incurred upon receipt of an undertaking to repay the amount if it is ultimately
determined by a court of competent jurisdiction that the person is not entitled
to indemnification. Section 78.751 of the NGCL further provides that, to the
extent a director or officer of a corporation has been successful on the merits
or otherwise in the defenses of any action, suit or proceeding referred to
in
subsection (1) and (2), or in the defense of any claim, issue or matter therein,
that person shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by that person in connection therewith; that
indemnification provided for by Section 78.751 of the NGCL shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled
and
that the scope of indemnification shall continue as to directors, officers,
employees or agents who have ceased to hold such positions, and to their heirs,
executors and administrators.
Finally,
Section 78.752 of the NGCL provides that a corporation may purchase and maintain
insurance on behalf of a director, officer, employee or agent of the corporation
against any liability asserted against him or incurred by him in any such
capacity or arising out of his status as such whether or not the corporation
would have the authority to indemnify him against such liabilities and
expenses.
Article
XV of the Company’s Articles of Incorporation, as amended, provides for the
indemnification of directors, employees and agents to the fullest extent
permissible under Nevada law. This Article also provides for the indemnification
of officers, directors and third parties acting on behalf of the Company if
such
person acted in good faith and in a manner reasonably believed to be in and
not
opposed to the best interest of the Company, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his conduct
was unlawful.
The
foregoing indemnification provisions are broad enough to encompass certain
liabilities of directors and officers of the Company under the Securities Act
of
1933.
The
following exhibits included herewith or incorporated herein by reference are
made a part of this Registration Statement:
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4.1
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Option
Agreement, dated December 6, 2004, between RF Industries, Ltd. and
George
Marks
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5
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Opinion
of Troy & Gould Professional Corporation regarding the legality of the
securities registered hereunder.
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23.1
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Consent
of JH Cohn LLP.
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23.2
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Consent
of Troy & Gould Professional Corporation (included in Exhibit
5.)
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24.1
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Power
of Attorney (included on signature
page).
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(a) The
Company hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to
such information in this Registration Statement;
provided,
however,
that
paragraphs (1)(i) and (1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That,
for
the purpose of determining any liability under the Securities Act of 1933,
each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered hereunder which remain unsold at the termination of the
offering.
(b) The
undersigned Company hereby undertakes that for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is
incorporated by reference in this Registration Statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Company certifies that
it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
San
Diego, California, on this 27th day of June, 2006.
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RF INDUSTRIES
LTD. |
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By:
/s/ Howard F.
Hill |
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Howard
F. Hill
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Chief
Executive
Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Howard
F.
Hill such person’s true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, to sign on such person’s behalf,
individually and in each capacity stated below, all amendments and
post-effective amendments to this Registration Statement on Form S-8 and to
file
the same, with all exhibits thereto and any other documents in connection
therewith, with the Commission under the Securities Act, granting unto said
attorney-in-fact and agent full power and authority to do and perform each
and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do
in
person, hereby ratifying and confirming each act that said attorney-in-fact
and
agent may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has
been
signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
Howard F. Hill
Howard
F. Hill
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Chief
Executive Officer and Director
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June
27, 2006
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/s/
Victor Powers
Victor
Powers
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Chief
Financial Officer and Principal Accounting Officer
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June
27, 2006
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/s/
William Reynolds
William
Reynolds
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Director
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June
27, 2006
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/s/
John Ehret
John
Ehret
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Director
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June
27, 2006
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/s/
Robert Jacobs
Robert
Jacobs
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Director
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June
27, 2006
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/s/
Linde Kester
Linde
Kester
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Director
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June
27, 2006
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/s/
Marvin Fink
Marvin
Fink
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Director
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June
27, 2006
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