UNITED STATES
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)
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Delaware
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23-2413500
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer Identification No.)
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3061 Industry Drive
Lancaster, Pennsylvania
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17603
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(Address of principal executive offices)
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(Zip Code)
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HERLEY INDUSTRIES, INC. 2010 STOCK PLAN
(Full Title of the Plan)
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Richard Poirier, Chief Executive Officer
Herley Industries, Inc.
3061 Industry Drive
Lancaster, Pennsylvania 17601
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copy to
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Paul G. Mattaini, Esq.
Kimberly J. Decker, Esq.
Barley Snyder, LLC
126 East King Street
Lancaster, Pa 17602
(717) 299-5201
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(Name and address of agent for service)
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(717) 735-8117
(Telephone number, including area code, of agent for service)
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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 definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large Accelerated filer
¨
Accelerated filer X
Non-accelerated filer
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(Do not check if a smaller reporting company) Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be Registered
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Proposed Maximum Offering Price per Share
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee
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Common Stock, Par Value $0.10 per share
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500,000 Shares
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$18.975
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$9,487,500
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$1,102
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(1) The Registration Statement registers the shares issuable under the 2010 Stock 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.
(2) 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 February [27], 2011.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM I. PLAN INFORMATION
The documents containing the information specified in Item 1 will be sent or given to employees, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
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.
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 August 1, 2010;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”) since the end of the fiscal year covered by the Registrant’s Form 10-K referred to in (a) above; and
(c) The description of the class of securities to be offered which is contained in a
description contained in Amendment No. 1 to the Registrant's Registration Statement No. 333-39767 on Form S-1, as filed with the Commission on November 18, 1997.
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.
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 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.
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4.1
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Herley Industries, Inc. 2010 Stock Plan (incorporated by reference to Exhibit B of Herley's definitive proxy statement, filed February 17, 2010).
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5.1
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Opinion and consent of Barley Snyder, LLC.
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23.1
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Consent of Barley Snyder, LLC - included in their opinion filed as Exhibit 5.
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23.2
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Consent of Grant Thornton, LLP, Independent Registered Public Accounting Firm.
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24.1
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Power of Attorney (see signature page).
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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.
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 the City of Lancaster, Pennsylvania on the 1st day of March, 2011.
HERLEY INDUSTRIES, INC.
By:
/s/
Richard F. Poirer
Richard F. Poirier
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated.
Each person whose signature appears below constitutes and appoints Richard F. Poirier and Anello C. Garefino, and either of them, 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.
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Signature
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Title
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Date
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/s/ Dr. Edward A. Bogucz
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Dr. Edward A. Bogucz
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Director
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March 1, 2011
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_/s/ Carlos C. Campbell
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Carlos C. Campbell
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Director
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March 1, 2011
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_/s/ F. Jack Liebau, Jr.___________
F. Jack Liebau, Jr.
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Director
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March 1, 2011
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_/s/ Michael N. Pocalyko
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Michael N. Pocalyko
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Director
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March 1, 2011
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_/s/ Raj Tatta
_________________
Raj Tatta
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Director
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March 1, 2011
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_/s/ John A. Thonet
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John A. Thonet
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Chairman of the Board, Director
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March 1, 2011
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_/s/ Richard F. Poirier
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Richard F. Poirier
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President and Chief Executive Officer (Principal Executive Officer)
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March 1, 2011
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_/s/ Anello C. Garefino
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Anello C. Garefino
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Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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March 1, 2011
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