-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GyenhqeyshHPC/nRoojd6KBe/jCHYq0hetMiq+S7aSFhPEHFJNBHQ+0GAaD8k8S9 mfFNZLSBZ5Mr+PvhA7Ving== 0001201800-07-000136.txt : 20070816 0001201800-07-000136.hdr.sgml : 20070816 20070816162623 ACCESSION NUMBER: 0001201800-07-000136 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20070816 DATE AS OF CHANGE: 20070816 EFFECTIVENESS DATE: 20070816 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HERLEY INDUSTRIES INC /NEW CENTRAL INDEX KEY: 0000047035 STANDARD INDUSTRIAL CLASSIFICATION: SEARCH, DETECTION, NAVIGATION, GUIDANCE, AERONAUTICAL SYS [3812] IRS NUMBER: 232413500 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-145503 FILM NUMBER: 071062785 BUSINESS ADDRESS: STREET 1: 101 NORTH POINTE BOULEVARD CITY: LANCASTER STATE: PA ZIP: 17601-4133 BUSINESS PHONE: 7177358117 MAIL ADDRESS: STREET 1: 101 NORTH POINTE BOULEVARD CITY: LANCASTER STATE: PA ZIP: 17601-4133 FORMER COMPANY: FORMER CONFORMED NAME: HERLEY MICROWAVE SYSTEMS INC DATE OF NAME CHANGE: 19900510 FORMER COMPANY: FORMER CONFORMED NAME: HERLEY INDUSTRIES INC DATE OF NAME CHANGE: 19831103 S-8 1 hrlys8aug07.txt Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 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) 101 North Pointe Boulevard, Lancaster, Pennsylvania 17601-4133 (Address of principal executive offices) (Zip Code) HERLEY INDUSTRIES, INC. 2006 NEW EMPLOYEE STOCK OPTION PLAN (Full Title of the Plan) Myron Levy, Chief Executive Officer Herley Industries, Inc. 101 North Pointe Boulevard Lancaster, Pennsylvania 17601 (Name and address of agent for service) (717) 735-8117 (Telephone number, including area code, of agent for service) copy to: David H. Lieberman, Esq. Beckman, Lieberman & Barandes, LLP 100 Jericho Quadrangle Jericho, New York 11753 (516) 433-1200
CALCULATION OF REGISTRATION FEE ======================== ====================== ====================== ====================== ====================== Title of Each Proposed Minimum Proposed Maximum Class of Securities Amount to be Offering Price Per Aggregate Offering Amount of To be Registered Registered Security (1) Price (1) Registration Fee - ------------------------ ---------------------- ---------------------- ---------------------- ---------------------- Common Stock, par value $.10 500,000 shares (2) $14.725 $7,362,500 $226.03 per share ======================== ====================== ====================== ====================== ====================== (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended. Based upon the average of the high and low sales price of the Company's common Stock on the Nasdaq Stock Market on August 15, 2007. (2) The Registration Statement registers the shares issuable under the 2006 New Employee Stock Option Plan. Pursuant to Rule 416, the Registration Statement also covers an indeterminate number of additional shares of common stock which may become issuable pursuant to anti-dilution and adjustment provisions of the Plan.
PART I Information Required in the Section 10(a) Prospectus ITEM I. PLAN INFORMATION Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I of Form S-8. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. The documents containing the information specified in Part I, Items 1 and 2 will be delivered to each of the participants in accordance with Form S-8 and Rule 428 promulgated under the Securities Act of 1933, as amended. The participants shall be provided in a written statement notifying them that upon written or oral request they will be provided, without charge, (I) the documents incorporated by reference in Item 3 of Part II of the registration statement, and (ii) other documents required to be delivered pursuant to Rule 428(b). The statement will inform the participants that these documents are incorporated by reference in the Section 10(a) prospectus, and shall include the address (giving title or department) and telephone number to which the request is to be directed. 1 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. -------------------------------------- The Registrant hereby incorporates by reference into this Registration Statement the documents listed in (a) through (d) below: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended July 30, 2006; (b) The Registrant's Quarterly Report on Form 10-Q for the quarters ended October 29, 2006, January 28, 2007 and April 29, 2007; (c) The Registrant's Current Reports on Form 8-K filed on August 16, 2006, August 23, 2006, October 13, 2006, December 12, 2006, March 8, 2007, June 4, 2007 and August 15, 2007; (d) The Registrant's proxy statement filed on January 18, 2007; (e) The description of the class of securities to be offered which is contained in a registration statement filed under Section 12 of the Securities Exchange Act of 1934 (File No.0-5411), including any amendment or report filed for the purpose of updating such description; and (f) All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. All such above-referenced documents shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modified or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities. ------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. -------------------------------------- Not applicable. 2 Item 6. Indemnification of Directors and Officers. ----------------------------------------- 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 the Registrant are covered by officers' and directors' liability insurance. The policy coverage is $10,000,000 which includes reimbursement for costs and fees. There is a maximum aggregate deductible for each loss under the policy of $250,000 ($500,000 for securities claims). The Registrant 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. Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- 4.1 Herley Industries, Inc. Amended and Restated 2006 New Employee Stock Option Plan. 5 Opinion and consent of Beckman, Lieberman & Barandes, LLP. 23.1 Consent of Beckman, Lieberman & Barandes, LLP - included in their opinion filed as Exhibit 5. 23.2 Consent of Marcum & Kliegman LLP, Independent Registered Public Accounting Firm. 24 Powers of Attorney (see signature page). 3 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; (ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the Registration Statement; (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 information in the Registration Statement; provided, however, that paragraphs (a)(l)(i) and (a)(l)(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 by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purposes 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 purposes of determining any liability under the Securities Act of 1933, 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 the 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 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 policy as expressed in the Act and will be governed by final adjudication of such issue. 4 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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Lancaster, Pennsylvania on the 16th day August, 2007. HERLEY INDUSTRIES, INC. By: /s/ Myron Levy ----------------- Myron Levy Chief Executive Officer POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed on August 16th, 2007 by the following persons in the capacities indicated. Each person whose signature appears below constitutes and appoints Myron Levy, with full power of substitution, our true and lawful attorney-in-fact and agent to do any and all acts and things in our name and on our behalf in our capacities indicated below which may deem necessary or advisable to enable Herley Industries, Inc. to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this Registration Statement including specifically, but not limited to, power and authority to sign for us or any of us in our names in the capacities stated below, any and all amendments (including post-effective amendments) thereto, 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 such connection, as fully to all intents and purposes as we 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 thereof. Signature Title --------- ----- Chairman of the Board, /s/ Myron Levy Chief Executive Officer and Director - -------------------- (Principal Executive Officer) Myron Levy /s/ Kevin J. Purcell Vice President and - ------------------- Chief Financial Officer Kevin J. Purcell (Principal Financial Officer) /s/ Edward A. Bogucz Director - ------------------- Edward A Bogucz /s/ Carlos Campbell Director - ------------------- Carlos Campbell /s/ Robert M. Moore Director - ------------------- Robert M. Moore /s/ John A. Thonet Secretary and Director - ------------------- John A. Thonet /s/ Edward K. Walker Director - ------------------- Edward K. Walker EX-5 2 hrlys8aug07ex5.txt OPINION OF COUNSEL EXHIBIT 5 August 16, 2007 Securities and Exchange Commission 100 F Street, NE Washington, D.C. 20549 Re: Herley Industries, Inc. Registration Statement on Form S-8 ---------------------------------- Gentlemen: Reference is made to the filing by Herley Industries, Inc. (the "Corporation") of a Registration Statement on Form S-8 with the Securities and Exchange Commission pursuant to the provisions of the Securities Act of 1933, as amended, covering the registration of 500,000 shares of the Corporation's common stock, $.10 par value per share pursuant to the Herley Industries, Inc. 2006 New Employee Stock Option Plan (the "Plan"): As counsel for the Corporation, we have examined its corporate records, including its Certificate of Incorporation, as amended, By-Laws, its corporate minutes, the form of its Common Stock certificate, the Plans 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 Corporation is duly organized and validly existing under the laws of the State of Delaware. 2. The shares of the Corporation's common stock, when issued pursuant to the terms of Plan, will be validly authorized, 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 of the Corporation, and we hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Beckman, Lieberman & Barandes, LLP BECKMAN, LIEBERMAN & BARANDES, LLP EX-23.2 3 hrlys8aug07ex23-2.txt ACCOUNTANT'S CONSENT Exhibit 23.2 INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM'S CONSENT ------------------------------------------------------- We consent to the incorporation by reference in this Registration Statement of Herley Industries, Inc. on Form S-8 of our report dated October 27, 2006, with respect to our audits of the consolidated financial statements and related consolidated financial statement schedule of Herley Industries, Inc. as of July 30, 2006 and July 31, 2005 and for the fifty-two (52) weeks ended July 30, 2006, July 31, 2005 and August 1, 2004 and our report dated October 27, 2006 with respect to our audit of management's assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial reporting of Herley Industries, Inc. as of July 30, 2006 appearing in the Annual Report on Form 10-K of Herley Industries, Inc. for the fifty-two (52) weeks ended July 30, 2006. /s/ Marcum & Kliegman LLP Marcum & Kliegman LLP Melville, New York August 16, 2007 -----END PRIVACY-ENHANCED MESSAGE-----