| As filed with the Securities and Exchange Commission on July 20, 2015 | Registration No. 333-______ |
UNITED STATES
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 (State or other jurisdiction of incorporation or organization) |
88-0168936 (I.R.S. Employer Identification No.) |
7610 Miramar Road
San Diego, CA 92126
(858) 549-6340
(Address of principal executive offices)
2010 Stock Incentive Plan
(Full title of the plan)
|
Johnny Walker, Chief Executive Officer RF INDUSTRIES, LTD. 7610 Miramar Road San Diego, CA 92126 (Name
and address of agent for service)
|
| Copy to: Istvan Benko TroyGould PC 1801 Century Park East, Suite 1600 Los Angeles, California 90067 (310) 789-1226 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| o Large accelerated filer | ¨ Accelerated filer | ¨ Non-accelerated filer | ý Smaller reporting company | |||
| (Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee (4) |
| Common Stock, $0.01 par value per share(2) | 57,000 shares (2) | $3.96(2) | $225,720(2) | $26.23 |
| Common Stock, $0.01 par value per share(2) | 100,000 shares (2) | $4.07(2) | $407,000(2) | $47.30 |
| Common Stock, $0.01 par value per share(3) | 343,000 shares (3) | $5.74(3) | $1,968,820(3) | $228.78 |
| TOTAL | 500,000 shares | -- | $2,601,540 | $302.31 |
| (1) | Pursuant to Rule 416(a) of the Securities Act of 1933, this registration statement covers, in addition to the shares of common stock specified above, an indeterminate number of additional shares of common stock that may become issuable under the 2010 Stock Incentive Plan as a result of the anti-dilution adjustment provisions contained therein. |
| (2) | The registration fee for shares of common stock issuable upon exercise of outstanding awards under the 2010 Stock Incentive Plan was calculated pursuant to Rule 457(h) of the Securities Act of 1933 using the prices at which such outstanding options may be exercised. |
| (3) | Represents shares reserved for issuance pursuant to future awards under the 2010 Stock Incentive Plan. The proposed maximum offering price per share and maximum aggregate offering price for these shares were estimated pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933 on the basis of the $4.35 average of the high and low trading prices of the registrant’s common stock, as reported on the Nasdaq Global Market on July 16, 2015. |
| (4) | Amount of registration fee was calculated pursuant to Section 6(b) of the Securities Act of 1933, which provides that the fee shall be $116.20 per $1,000,000 of the proposed maximum aggregate offering price of the securities proposed to be offered. |
EXPLANATORY NOTE UNDER GENERAL INSTRUCTION E
REGISTRATION OF ADDITIONAL SECURITIES AND INCORPORATION BY REFERENCE
A Registration Statement on Form S-8, File No. 333-169490 was filed on September 20, 2010 to register 1,000,000 shares (as adjusted for a 2-for-1 stock split) of common stock of RF Industries, Ltd. (the “Registrant”), that were issuable under the 2010 Stock Incentive Plan (the “Plan”).
The Registrant subsequently amended the Plan to increase the number of shares issuable upon the exercise of options and other awards granted thereunder by 500,000 shares. Accordingly, this registration statement registers the additional 500,000 shares of common stock issuable under the Plan.
INCORPORATION BY REFERENCE OF PRIOR REGISTRATION STATEMENT
The contents of the Registration Statement of RF Industries, Ltd., File No. 333-169490 , filed on September 20, 2010, as amended, are incorporated into this Registration Statement by this reference, pursuant to General Instruction E to Form S-8, except that the provisions contained in Part II of such earlier registration statement are modified as set forth in this registration statement.
| 1 |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by RF Industries, Ltd. (“we,” “us,” “our,” or the “Company”) with the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934 are incorporated by reference in this registration statement:
| · | Our Annual Report on Form 10-K for the fiscal year ended October 31, 2014, filed with the SEC on January 29, 2015; |
| · | Our Quarterly Reports on Form 10-Q for the fiscal quarter ended January 31, 2015, filed with the SEC on March 17, 2015, and for the fiscal quarter ended April 30, 2015, filed with the SEC on June 15, 2015; |
| · | Our Current Reports on Form 8-K filed with the SEC on April 10, 2015, June 1, 2015, and June 5, 2015; and |
| · | The description of our common stock contained in the Company’s Registration Statement on Form 8-A, including any amendment or report filed for the purpose of updating any such description. |
In addition, each document that the Company files with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this registration statement and 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, shall be deemed to be incorporated by reference into this registration statement and to be part thereof from the date of the filing of such document.
Item 8. Exhibits
The following exhibits are filed with this registration statement or are incorporated by reference as a part of this Registration Statement:
| Exhibit No. | Exhibit Description |
| 4.1 | 2010 Stock Incentive Plan (previously filed as Exhibit 4.1 to the Registrant’s Form S-8, File No. 333-169490, filed on September 20, 2010 and incorporated herein by reference). |
| 5.1 | Opinion of TroyGould PC (included with this registration statement). |
| 23.1 | Consent of CohnReznick LLP (included with this registration statement). |
| 23.2 | Consent of TroyGould PC (included in the opinion filed as Exhibit 5.1). |
| 24.1 | Power of Attorney (included on signature page). |
| 2 |
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 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 July 20, 2015.
RF INDUSTRIES, LTD. | ||
| By: | /s/ JOHNNY WALKER | |
Johnny Walker | ||
President and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of Johnny Walker and Mark Turfler as his true and lawful attorney-in-fact and agent, with full power of substitution, for him in any and all capacities, to sign this registration statement on Form S-8 and any amendments hereto (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, and other documents in connection therewith, with the Securities and Exchange Commission, 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 he might do or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may do or cause to be done by virtue of this power of attorney.
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 20th day of July 2015.
| Signature | Title | |
|
/s/ JOHNNY WALKER |
President and Chief Executive Officer | |
| Johnny Walker | (principal executive officer) | |
|
/s/ MARK TURFLER |
Chief Financial Officer | |
| Mark Turfler | (principal financial and accounting officer) | |
/s/ WILLIAM L. REYNOLDS |
Director | |
| William L. Reynolds | ||
/s/ HOWARD F. HILL |
Director | |
| Howard F. Hill | ||
|
/s/ JOSEPH BENOIT |
Director | |
| Joseph Benoit | ||
|
/s/ DARREN CLARK |
Director | |
| Darren Clark | ||
|
/s/ MARVIN FINK |
Director | |
| Marvin Fink |
| 3 |
EXHIBIT INDEX
The following exhibits are filed with this registration statement or are incorporated by reference as a part of this Registration Statement:
| Exhibit No. | Exhibit Description |
| 4.1 | 2010 Stock Incentive Plan (previously filed as Exhibit 4.1 to the Registrant’s Form S-8, File No. 333-169490, filed on September 20, 2010 and incorporated herein by reference). |
| 5.1 | Opinion of TroyGould PC (included with this registration statement). |
| 23.1 | Consent of CohnReznick LLP (included with this registration statement). |
| 23.2 | Consent of TroyGould PC (included in the opinion filed as Exhibit 5.1). |
| 24.1 | Power of Attorney (included on signature page). |
Exhibit 5.1
TroyGould PC
1801 Century Park East
16th Floor
Los Angeles, California 90067
Telephone: (310) 553-4441
Facsimile: (310) 201-4746
July 20, 2015
RF Industries, Ltd.
7610 Miramar Road
San Diego, CA 92126
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to RF Industries, Ltd., a Nevada corporation (the “Company”), in connection with a Registration Statement on Form S-8 (the “Registration Statement”) that the Company intends to file with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on or about July 20, 2015 for the purpose of registering the offer and sale of up to 500,000 shares (the “Shares”) of the Company’s common stock issuable under the Company’s 2010 Stock Incentive Plan (as amended, the “Plan”).
As a basis for rendering our opinion expressed below, we have reviewed originals or copies of originals, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, (ii) the Plan, (iii) the Company’s Articles of Incorporation and Bylaws, each as amended to date, (iv) minutes or resolutions of the Company’s Board of Directors and stockholders pertaining to the adoption of the Plan and authorization and issuance of the Shares, the Registration Statement and related matters, and (v) such certificates of public officials, certificates of officers of the Company and other documents as we have considered necessary or appropriate as a basis for rendering our opinion.
With your permission, in order to render our opinion, we have made and relied upon such customary assumptions as we have deemed necessary or appropriate without any independent investigation or inquiry by us. Among other things, we have assumed that: all signatures on documents reviewed by us are genuine; all documents submitted to us as originals are authentic; and all documents submitted to us as copies conform to the originals of such documents, and such originals are authentic.
The law covered by our opinion expressed below is limited to the internal corporation laws of the State of Nevada (including applicable rules and regulations promulgated thereunder and applicable reported judicial decisions interpreting the same). We neither express nor imply any opinion with respect to any other laws or the laws of any other jurisdiction.
This opinion letter is limited to the opinion expressly stated below, does not include any implied opinions and is rendered as of the date hereof. We do not undertake to advise you of matters that may come to our attention subsequent to the date hereof and that may affect our opinion, including, without limitation, future changes in applicable law.
Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued and paid for in accordance with the terms of the Registration Statement and the Plan, will be validly issued, fully paid, and non-assessable.
This opinion letter is rendered to you solely in connection with the transactions contemplated by the Registration Statement and may not be relied upon for any other purpose. We consent to the filing with the Commission of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ TROYGOULD PC
TROYGOULD PC
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of RF Industries, Ltd. of our report dated January 29, 2015 on our audits of the consolidated financial statements of RF Industries, Ltd. and Subsidiary as of October 31, 2014 and 2013, and for the years then ended, included in the Annual Report on Form 10-K of RF Industries, Ltd. for the year ended October 31, 2014.
/s/ CohnReznick LLP
San Diego, California
July 20, 2015