AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL __, 2000
REGISTRATION NO. 333-
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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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HERTZ TECHNOLOGY GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-896069
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
75 Varick Street, 11th Floor
New York, NY 10013
(212) 634-4000
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
-----------------------------
Hertz Technology Group, Inc. 1996 Stock Option Plan
(Full Title of the Plan)
Eli E. Hertz
Hertz Technology Group, Inc.
75 Varick Street, 11th Floor
New York, NY 10013
(212) 634-4000
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Please send copies of all correspondence to:
Howard L. Weinreich, Esq.
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022-2605
Telephone No. (212) 838-4312
Fax No. (212) 838-9190
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Calculation of Registration Fees
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) per Share Price Registration Fee
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Common Stock (par value $.001
per share issuable pursuant to
options granted or to be granted
under the 1996 Stock Option Plan,
as amended (the "1996 Plan")
- -----------------------------------------------------------------------------------------------------------------
Common Stock issuable upon
exercise of options granted
under the 1996 Plan (2) 335,452 $1.64 $550,141 $145.24
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Common Stock issuable pursuant
to options that may be granted
under the 1996 Plan (3) 414,548 $3.031 $1,256,495 $331.71
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Common Stock (par value $.001)
issuable upon exercise of options
granted outside the 1996 Plan
("Additional Options") (4) 1,278,000 $1.49 (4) $1,904,220 $502.71
- -----------------------------------------------------------------------------------------------------------------
Total 2,028,000 $3,710,856 $980.66
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of additional
shares or rights which by reason of certain events specified in the 1996 Plan
become subject to the Plan.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average exercise
price of $1.64 per share for outstanding options to purchase a total of 335,452
shares of Common Stock.
(3) Calculated in accordance with Rule 457(c) and Rule 457(h), the
proposed maximum offering price per share, proposed maximum aggregate offering
price and the amount of the registration fee are based upon the average of the
high and low sales prices reported on the Nasdaq SmallCap Market on April 13,
2000, with respect to shares available for grant under the 1996 Plan.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average exercise
price of $1.49 per share for outstanding options to purchase a total of
1,278,000 shares of Common Stock.
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2
HERTZ TECHNOLOGY GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents need not be filed with the Securities and
Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") are incorporated in this
Prospectus by reference:
(1) Annual Report on Form 10-KSB for the fiscal year ended August 31,
1999;
(2) Quarterly Report on Form 10-QSB for the quarter ended November 30,
1999;
(3) Quarterly Report on Form 10-QSB on the quarter ended February 29,
2000; and
(4) The description of the Company's Common Stock, contained in the
Company's Registration Statement on Form 8-A registering such shares
pursuant to Section 12 of the Exchange Act, including any amendment
or report updating such information.
Each document filed subsequent to the date of this registration statement
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated herein by
reference 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 or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this registration statement is delivered,
upon the written or oral request of any such person, a copy of any document
incorporated by reference in this registration statement (other than exhibits
unless such exhibits are specifically incorporated by reference in such
documents). Requests should be directed to Hertz Technology Group, Inc., 75
Varick Street, 11th Floor, New York, NY 10013, (212) 634-4000, Attention: Eli E.
Hertz, President.
Item 4. Description of Securities
Not applicable.
4
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Sections 145 of the Delaware General Corporation Law grants to the Company
the power to indemnify the officers and directors of the Company, under certain
circumstances and subject to certain conditions and limitations as stated
therein, against all expenses and liabilities incurred by or imposed upon them
as a result of suits brought against them as such officers and directors if they
act in good faith and in a manner they reasonably believe to be in or not
opposed to the best interests of the Company and, with respect to any criminal
action or proceeding, have no reasonable cause to believe their conduct was
unlawful.
The Company's certificate of incorporation provides as follows:
"TENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit."
Item 7. Exemption From Registration Claimed
Not Applicable
5
Item 8. Exhibits
Unless otherwise indicated, the following exhibits are incorporated by reference
from the Company's Registration Statement on Form SB-2 as well as any amendments
thereto (SEC File Number 333-9783 referencing the exhibit number used in such
Registration Statement).
Exhibit No. Description
- ----------- -----------
3.1A Certificate of Incorporation of the Company
3.1B Certificate of Amendment of Certificate of Incorporation
of the Company (Filed on September 9, 1996)
3.1C Certificate of Amendment of Certificate of Incorporation
(Filed November 2, 1998)*
3.1D Certificate of Amendment of Certificate of Incorporation
(Filed February 10, 1999)*
3.1E Certificate of Amendment of Certificate of Incorporation
(Filed March 20, 2000)*
3.2 By-Laws of the Company
4.5 1996 Stock Option Plan, as amended
4.6 Form of Stock Option Agreement pursuant to 1996 Stock
Option Plan*
4.7 Form of Additional Stock Option Agreement*
5.1 Opinion of Morse, Zelnick, Rose & Lander, LLP as to
legality of the securities being registered*
23.1A Consent of Goldstein Golub Kessler LLP (independent
public accountants)*
23.2 Consent of Morse, Zelnick, Rose & Lander, LLP (included
in Exhibit 5.1)
24 Power of Attorney (included in signature page)
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* Filed herewith.
6
Item 9. Undertakings
The undersigned hereby undertakes:
(a) To file, during any period in which it 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;
(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;
(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 paragraph (i) and (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 with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, 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.
(c) 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant
to Section 13(a) or Section 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.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described in Item 6 of this Registration Statement,
or otherwise, the Company has been advised that in the opinion of the Commission
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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 New York, State of New York on this 14 day of April,
2000.
HERTZ TECHNOLOGY GROUP, INC.
By: /s/ Eli E. Hertz
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Eli E. Hertz,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Barry J. Goldsammler and Howard L. Weinreich, or either
one of them, 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 pre-or 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 attorneys in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might not could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities indicated on April 14, 2000.
Signatures Title
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/s/ Eli E. Hertz Chairman, President, and Chief
- ----------------------------- Executive Officer
Eli E. Hertz
/s/ I. Marilyn Hertz Vice Chairperson and Director
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I. Marilyn Hertz
/s/ Barry J. Goldsammler Senior Vice President, Chief Financial
- ----------------------------- and Accounting Officer and Director
Barry J. Goldsammler
/s/ Beryl Ackerman Director
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Beryl Ackerman
/s/ Bruce Borner Director
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Bruce Borner
HERTZ TECHNOLOGY GROUP INC.
INDEX OF EXHIBITS
Unless otherwise indicated, the following exhibits are incorporated by reference
from the Company's Registration Statement on Form SB-2 as well as any amendments
thereto (SEC File Number 333-9783 referencing the exhibit number used in such
Registration Statement).
Exhibit No. Description
- ----------- -----------
3.1A Certificate of Incorporation of the Company
3.1B Certificate of Amendment of Certificate of Incorporation
of the Company (Filed on September 9, 1996)
3.1C Certificate of Amendment of Certificate of Incorporation
(Filed November 2, 1998)*
3.1D Certificate of Amendment of Certificate of Incorporation
(Filed February 10, 1999)*
3.1E Certificate of Amendment of Certificate of Incorporation
(Filed March 20, 2000)*
3.2 By-Laws of the Company
4.5 1996 Stock Option Plan, as amended
4.6 Form of Stock Option Agreement pursuant to 1996 Stock
Option Plan*
4.7 Form of Additional Stock Option Agreement*
5.1 Opinion of Morse, Zelnick, Rose & Lander, LLP as to
legality of the securities being registered*
23.1A Consent of Goldstein Golub Kessler LLP (independent
public accountants)*
23.2 Consent of Morse, Zelnick, Rose & Lander, LLP (included
in Exhibit 5.1)
24 Power of Attorney (included in signature page)
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* Filed herewith.