As filed with the Securities and Exchange Commission on January 6, 2009
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Frequency Electronics, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 11-1986657
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
55 Charles Lindbergh Blvd.
Mitchel Field, NY 11553
516-794-4500
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
2008 Employee Stock Purchase Program
(Full Title of the Plan)
Alan Miller
Chief Financial Officer
Frequency Electronics, Inc.
55 Charles Lindbergh Blvd.
Mitchel Field, NY 11553
(516) 794-4500
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent For Service)
Copies to:
Dennis J. Block, Esq.
William P. Mills, III, Esq.
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
(212) 504-6000
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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 |_| Non-accelerated |X| Smaller reporting
accelerated filer filer company
filer
(Do not check if
a smaller
reporting company)
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered(1) Price Per Unit Aggregate Offering Price Registration Fee
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Common Stock, par value $1.00 per share 200,000 (2) $2.97 (3) $594,000(3) $23.34
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(1) Plus such indeterminate number of shares pursuant to Rule 416 as may be
issued in respect of stock splits, stock dividends and similar
transactions.
(2) Represents the registration of an aggregate of 200,000 shares of common
stock of Frequency Electronics, Inc. which are to be acquired by certain
employees of Frequency Electronics, Inc. in open market transactions
pursuant to the 2008 Employee Stock Purchase Program.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933,
as amended, based on the average of the high and low sales prices of the
common stock as reported on the Nasdaq Global Market on January 2, 2009.
EXPLANATORY NOTE
Frequency Electronics, Inc. (the "Company") has prepared this Registration
Statement in accordance with the requirements of Form S-8 under the Securities
Act of 1933, as amended (the "Securities Act"), to register the offer and sale
of up to 200,000 shares of Company common stock, par value $1.00 per share
("Common Stock"), that may be acquired by certain of the Company's employees in
open market transactions pursuant to the 2008 Employee Stock Purchase Program.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required in Part I of this
Registration Statement will be sent or given to employees as specified in Rule
428(b)(1) of the Securities Act and are not filed as part of this Registration
Statement pursuant to the Note to Part I of Form S-8. Those documents and the
documents incorporated by reference into this Registration Statement, taken
together, constitute prospectuses that meet the requirements of Section 10(a) of
the Securities Act.
The Company will deliver or cause to be delivered promptly, without
charge, to each person to whom information is required to be delivered, upon
written or oral request, a copy of the information that is incorporated by
reference pursuant to Item 3 of this Registration Statement and any other
documents required to be delivered pursuant to Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed with the Securities Exchange Commission
("SEC") by the Company are incorporated herein by reference:
(i) the Annual Report on Form 10-K filed with the SEC on July 29, 2008
and the amendment to Form 10-K filed with the SEC on August 22, 2008
for the fiscal year ended April 30, 2008;
(ii) the Quarterly Reports on Form 10-Q filed with the SEC on September
15, 2008 and December 15, 2008 for the fiscal quarter ended July 31,
2008 and October 31, 2008, respectively;
(iii) the Current Reports on Form 8-K filed on July 22, 2008, August 5,
2008 and September 15, 2008; and
(iv) the description of the Company's Common Stock, par value $1.00 per
share, contained in the Company's Registration Statement on Form
8-A12B, filed under the Exchange Act on July 31, 2006, including any
amendments or reports filed for the purpose of updating such
description.
All documents filed by the Company with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered 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 a part thereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits
indemnification of officers, directors, and other corporate agents under certain
circumstances and subject to certain limitations. The Company's Amended and
Restated Certificate of Incorporation and By-laws provide that the Company will
indemnify its directors and officers, and anyone who is or was serving at the
Company's request as a director, officer, employee, fiduciary, or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, to the fullest extent permitted under Delaware law. These
indemnification provisions may be sufficiently broad to permit indemnification
of the Company's executive officers and directors for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
The Company maintains directors' and officers' liability insurance against
any actual or alleged error, misstatement, misleading statement, act, omission,
neglect or breach of duty by any director or officer, excluding certain matters
including fraudulent, dishonest or criminal acts or self dealing.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Specimen of Common Stock certificate (Filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1, File No. 2-29609).
*4.2 Summary of 2008 Employee Stock Purchase Program
*23.1 Consent of Holtz Rubenstein Reminick LLP, independent registered
public accounting firm.
*24 Power of Attorney (included on the signature page of this
Registration Statement).
* Filed herewith.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a)(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
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 (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to
the SEC by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time will 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) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act 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 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions referred to in this Registration
Statement, or otherwise, the registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed in the
Securities 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 public policy as expressed in the Securities
Act and will be governed by the 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 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 Mitchel Field, state of New York, on December 18,
2008.
FREQUENCY ELECTRONICS, INC.
By: /s/ Alan Miller
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Alan Miller
Treasurer and Chief Financial
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan Miller his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, 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 such
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he 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 hereof.
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
dates indicated.
Signature Title Date
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/s/ Joseph P. Franklin
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Joseph P. Franklin Chairman of the Board December 21, 2008
/s/ Joel Girsky
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Joel Girsky Director December 18, 2008
/s/ E. Donald Shapiro
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E. Donald Shapiro Director December 22, 2008
/s/ Richard Schwartz
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Richard Schwartz Director December 23, 2008
/s/ Martin B. Bloch
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Martin B. Bloch President, CEO and Director
(Principal Executive Officer) December 18, 2008
/s/ Alan Miller
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Alan Miller Treasurer and Chief Financial
Officer (Principal Financial
Officer and Principal
Accounting Officer) December 18, 2008
EXHIBIT INDEX
Paper (P) or
Exhibit No. Description Electronic (E)
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4.1 Specimen of Common Stock certificate (Filed as
Exhibit 4.1 to the Company's Registration E
Statement on Form S-1, File No. 2-29609).
*4.2 Summary of 2008 Employee Stock Purchase Program E
*23.1 Consent of Holtz Rubenstein Reminick LLP,
independent registered public accounting firm. E
*24 Power of Attorney (included on the signature
page of this Registration Statement). E
* Filed herewith.
Exhibit 4.2
Frequency Electronics, Inc.
2008 Employee Stock Purchase Program
Purpose: The purpose of the 2008 Employee Stock Purchase Program (the "Program")
is to provide selected employees, non-employee independent consultants and third
party service providers of Frequency Electronics, Inc. (the "Company") who are
not executive officers or directors of the Company with an opportunity to
acquire ownership of common stock, par value $1.00 per share ("Common Stock") of
the Company.
The Program: The Program will become effective on January 6, 2009. The Company
will lend the purchase price for a specified number of shares to selected
employees, non-employee independent consultants and third party service
providers of the Company who are not executive officers or directors of the
Company to enable such participants to acquire shares of Common Stock of the
Company in open market transactions (the "Loan"). In return, the Company will
receive a promissory note from the participants upon the terms set forth in the
section below entitled "The Loan." The maximum number of shares of Common Stock
that Identified Participants (as defined below) in the aggregate may acquire
under the Program is 200,000 shares. The Program is not subject to the Employee
Retirement Income Security Act of 1974.
Administration: The Program shall be administered by the Compensation Committee
of the Company's Board of Directors (the "Board") or such other committee
appointed by the Company's Board of Directors to administer the Program from
time to time (the "Committee"). The Committee shall have full discretion and
authority to interpret and apply the provisions of the Program. The Committee's
decision as to any matter arising under the Program, including questions of
construction, interpretation and administration, are final, binding and
conclusive on all persons.
Participation and Procedure: Upon the recommendation of management, the
Committee will identify and select employees, non-employee independent
consultants and third party service providers of the Company (each an
"Identified Participant") who are eligible to participate in the Program. Each
Identified Participant will be offered the opportunity to borrow from the
Company up to a certain amount (such amount to be determined by a committee of
the board of directors of the Company, taking into account the total amount of
shares to be acquired pursuant to the Program and the extent to which each of
the Identified Participants elect to participate in the Program) for the purpose
of acquiring Common Stock in open market transactions pursuant to the Program.
The Identified Participant will have 15 days following the offer to participate
in the Program, to notify the Company of his/her election to participate in the
Program and the amount he or she elects to borrow from the Company pursuant to
the Program (such amount not to be greater than the maximum Loan amount offered
to the Identified Participant). Upon the Identified Participant's notification
to the Company of their election to participate in the Program, the Company will
loan the Identified Participant the elected amount so that the Identified
Participant can instruct his or her broker to acquire shares for the Identified
Participant's account on the open market. The Identified Participant may not
assign or hypothecate his or her interest in the Program without the written
consent of the Company.
The Loan: The maximum aggregate amount of loans to be issued by the Company
under the Program is $500,000. The maximum aggregate amount of loans to be
issued by the Company in any calendar quarter under the Program is $200,000. The
proceeds from the Loan may be used by the Identified Participants for the sole
purpose of acquiring Common Stock pursuant to the Program and to pay broker's
commissions and other costs incurred in connection with transactions made
pursuant to the Program. The Loan will become due and payable by an Identified
Participant at the earlier of (i) five years from the date the Loan is made to
the Identified Participant, (ii) termination of the Identified Participant's
employment or consultancy, as applicable, with the Company (regardless of
whether such termination was voluntary or involuntary), (iii) the sale of the
Common Stock acquired pursuant to the Program without the prior written consent
of the Company, (iv) the appointment of the Identified Participant to an
executive officer position of the Company and (v) the election of the Identified
Participant as a director of the Company. The interest rate of the Loan will be
Prime + 0.5%, reset annually and such interest will be simple interest - not
compounded. The Loan is a non-recourse loan and will be secured by (i) the
Common Stock acquired pursuant to the Program, (ii) any dividends received by
the Identified Participant as a result of the ownership of the Common Stock
acquired pursuant to the Program and (iii) any other shares, securities or
property representing a distribution on or in respect of the Common Stock
acquired pursuant to the Program. The outstanding principal plus any accrued
interest under the Loan may be paid without penalty in full or in part to the
Company at any time by an Identified Participant. If an Identified Participant
wishes to settle the Loan or a portion thereof by selling some or all of the
underlying Common Stock acquired pursuant to the Program, the Company will take
appropriate measures to ensure that the Company is repaid and the Identified
Participant receives the net proceeds of any such sale.
Registration and Resale: The Company will file a registration statement on Form
S-8 to register the offer and sale of the shares of Common Stock to be acquired
pursuant to the Program. Resale of the Common Stock acquired pursuant to the
Program must be made in compliance with applicable securities laws and company
trading policy. Common Stock received pursuant to the Program by persons deemed
an "affiliate" of the Company under the Securities Act of 1933 (the "Securities
Act"), as amended must be registered for resale by such person unless such
resale complies with the provisions of Rule 144 promulgated under the Securities
Act.
No Employment Rights: Nothing contained herein shall confer upon any Identified
Participant a right to continue his or her employment or consultancy with the
Company for any specified period or limit the Company's right to terminate the
employment or consultancy of any Identified Participant at any time for any or
no reason.
Amendment and Termination: The Board may amend or terminate the Program at any
time, provided that no such action shall adversely affect the rights of any
Identified Participant in any material respect without his or her consent. The
termination of the Program shall not affect any Loans outstanding on the
termination date.
Tax Withholding. Whenever under the Program, an Identified Participant incurs
federal income tax liability, obligations with respect to Social Security and
Medicare taxes, or other tax obligations in connection with shares of Common
Stock purchased under the Program, the Company shall be entitled to require that
the Identified Participant remit when due an amount sufficient to satisfy all
federal, state and local withholding tax requirements relating thereto. At the
election of the Company, such mandatory withholding amounts may be remitted by
check payable to the Company, in shares of Common Stock, by the Company's
withholding of shares of Common Stock purchased under the Program, or any
combination thereof; provided, however, that in no event may shares be withheld
to satisfy a tax obligation of an Identified Participant in excess of the
mandatory tax withholding obligations arising in connection with the
participant's Award.
Governing Law: The Program shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to principles of
conflicts of laws, and applicable federal law. If any provision of the Program
shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions shall continue to be effective.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 2008 Employee Stock Purchase Program of
Frequency Electronics, Inc. of our report dated July 25, 2008, with respect to
the consolidated financial statements of Frequency Electronics, Inc. and
Subsidiaries included in its Annual Report (Form 10-K) for the year ended April
30, 2008 filed with the Securities and Exchange Commission.
/s/ Holtz Rubenstein Reminick LLP
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Holtz Rubenstein Reminick LLP
Melville, New York
January 6, 2009