What changed in this filing

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Item 5. Other Information

2023-09-14 compared with 2023-06-14 · 24 added, 18 removed, 22 unchanged (66% of the section changed)

Other Information

Amended and Restated Bylaws

On June 14, 2023, our Board of Directors (the “Board”) approved the Amended and Restated By-Laws (as so amended and restated, the “Amended By-Laws”), effective as of such date.

Among other things, the amendments:

Revise certain provisions relating to stockholder meetings and provide that stockholders and proxy holders may be deemed to present in person or by remote communication and by means of electronic communications, videoconferencing, teleconferencing or other available technology;

Address matters relating to Rule 14a-19 promulgated under the Securities Exchange Act of 1934, as amended (the “Universal Proxy Rules”), including (i) providing that stockholders delivering a notice of nomination certify to the Company in writing that they have complied with the Universal Proxy Rules requirements, (ii) providing the Company a remedy if a stockholder fails to satisfy the Universal Proxy Rules requirements, (iii) requiring that a stockholder providing notice pursuant to the advance notice bylaws to later update or supplement its notice, by certain specified dates, such that the notice remains true and correct in all material respects, and (iv) requiring stockholders intending to use the Universal Proxy Rules to provide reasonable evidence of the satisfaction of the requirements under the Universal Proxy Rules at least five business days before the meeting;

Revise the procedures and disclosure requirements set forth in the advance notice bylaw provisions, including requiring additional information, representations and disclosures from proposing stockholders, proposed nominees and other persons related to a stockholder’s solicitation of proxies;

Require that a stockholder directly or indirectly soliciting proxies from other stockholders use a proxy card color other than white;

Require that a stockholder or group own 5% or more of the Corporation’s outstanding common stock continuously for at least three years to nominate a director nominee at an annual meeting;

Require that the request to hold a special meeting require two-thirds of the voting power of the Corporation’s stock;

Require that any action to be taken by the stockholders of the Company must be effected at a duly called annual or special meeting of the Company;

Clarify that the Company may indemnify employees and agents as the Board deems appropriate or as otherwise required by law;

Incorporate certain ministerial, clarifying, and conforming changes to provide clarification and consistency.

The foregoing summary description of the Amended Bylaws is qualified in its entirety by reference to the complete text of the

Amended By-Laws, a copy of which is included as Exhibit 3.1 and is incorporated herein by reference. 

Amended and Restated Bylaws of RF Industries, Ltd.

Waiver and Amendment to Loan Agreement

On September 12, 2023, we entered into Amendment No.

1 and Waiver to the Loan Agreement, dated as of February 25, 2022, (the “Loan Amendment”) with Bank of America, N.A.

(the “Bank”).

The Loan Amendment, among other matters, provided for a one-time waiver of our failure to maintain (i) consolidated debt to EBITDA ratio not exceeding 3.00 to 1.00 (the “Debt Test”), measured as of the last day of each calendar quarter, for the period ended July 31, 2023;

and (ii) consolidated fixed charge coverage ratio of at least 1.25 to 1.00 (the “FCCR Test”), measured as of the last day of each calendar quarter, for the period ended July 31, 2023.

The Loan Amendment also waives testing for compliance with the Debt Test and FCCR Test for the quarterly periods ending October 31, 2023, January 31, 2024, April 30, 2024, and July 31, 2024, with the Debt Test and FCCR Test resuming with the period ending October 31, 2024, and continuing thereafter on a trailing 12-month basis.

Further, pursuant to the Loan Amendment, we are required to maintain (i) (a) until September 21, 2023, minimum liquidity (week-end cash balance plus availability from the revolving line of credit) of $4.0 million, and (b) from September 22, 2023 and thereafter, liquidity equal to the greater of (1) $4.0 million or (2) 80% of the liquidity that was forecast for this date at the fourth week of the forecast;

and (ii) minimum EBITDA of ($400,000), $500,000, $1.0 million, and $1.0 million for the quarters ending October 31, 2023, January 31, 2024, April 30, 2024, and July 31, 2024, respectively.

The effectiveness of the Loan Amendment is conditioned upon, among other things, our payment of a waiver fee of $50,000, and each guarantor’s execution of a consent to the Loan Amendment and reaffirmation of its obligations under its respective guaranty.

The foregoing summary description of the Loan Amendment is qualified in its entirety by reference to the complete text of the Loan Amendment, a copy of which is included as Exhibit 10.3 and is incorporated herein by reference.

Insider Trading Arrangements

During the quarterly period ended July 31, 2023, no director or officer adopted or terminated any Rule 10b5-1 trading arrangement, and/or any non-Rule 10b5-1 trading arrangement (as such terms are defined pursuant to Item 408(a) of Regulation S-K).

Amended and Restated Bylaws of RF Industries, Ltd (incorporated by reference to our Quarterly Report on Form 10-Q filed with the SEC on June 14, 2023).

Third Amendment to Lease by and between Sorrento West Properties, Inc.

and RF Industries, Ltd., dated July 11, 2023 (incorporated by reference to our Current Report on Form 8-K filed with the SEC on July 13, 2023).

Managed Client Agreement between RF Industries, Ltd.

and RGN-MCA San Diego II, LLC, dated June 27, 2023 (incorporated by reference to our Current Report on Form 8-K filed with the SEC on July 13, 2023).

Amendment No.

1 and Waiver to Loan Agreement, between Bank of America, N.A.

and RF Industries, Ltd., dated September 12, 2023.

Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

11 unchanged sentences

Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)

In accordance with the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

RF INDUSTRIES, LTD.

June 14, 2023

September 14, 2023

/s/ Robert Dawson

2 unchanged sentences

(Principal Executive Officer)

June 14, 2023

September 14, 2023

/s/ Peter Yin

2 unchanged sentences

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 5. Other Information