As filed with the Securities and Exchange Commission on February 8, 2005
Registration No. 333
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U.S. SECURITIES AND EXCHANGE
COMMISSION Washington,
D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
HIRSCH INTERNATIONAL CORP.
(exact name of Registrant as specified in its charter)
Delaware 11-2230715
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
200 Wireless Boulevard
Hauppauge, New York 11788
(Address of principal executive offices)
Hirsch International Corp. - 2003 Stock Option Plan
(Full title of the plan)
Beverly Eichel
Vice President-Finance, Chief
Financial Officer and Secretary
Chief Executive Officer
Hirsch International Corp.
200 Wireless Boulevard
Hauppauge, New York 11788
(516) 436-7100
Copy to:
Adam P. Silvers, Esq.
Ruskin Moscou Faltischek, P.C.
190 EAB Plaza, East Tower, 15th Floor
Uniondale, New York 11556
(516) 663-6600 (516)
663-6643 (facsimile)
CALCULATION OF REGISTRATION FEE
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Number of shares Proposed maximum Proposed maximum
Title of each class of securities to be to be registered Offering price per aggregate offering Amount of
registered share price Registration fee (1)
Class A Common Stock, $.01 par value (3) 560,000 $1.09(1) $610,400(1) $71.85
190,000 $1.12(2) $212,800(2) $25.05
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(1) Estimated solely for the purposes of calculating the registration fee of
this offering under Rules 457(c) and 457(h) of the Securities Act of 1933, as
amended, using the average of the high and low sales prices for the Common Stock
of Hirsch International Corp. as reported on Nasdaq SmallCap Market on February
3, 2005.
(2) Based upon the weighted average exercise price of the 190,000 shares subject
to outstanding options under the Hirsch International Corp. 2003 Stock Option
Plan.
(3) Pursuant to Rule 416(c) of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of Class A Common
Stock which may become issuable under the Hirsch International Corp. 2003 Stock
Option Plan by reason of the anti-dilution provisions contained in such plan.
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::ODMA\PCDOCS\RMF_DOC\306844\1
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will
be sent or given to employees participating in the Hirsch International Corp.
2003 Stock Option Plan (the "Plan"), as specified by Rule 428(b)(1) of the
Securities Act of 1933 (the "Securities Act"). In accordance with the
instructions to Part I of Form S-8, such documents will not be filed with the
Securities Exchange Commission (the "Commission"). These documents and the
documents incorporated by reference pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitutes a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are hereby
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K (File No. 000-23434) for
the year ended January 31, 2004;
(b) The Company's Quarterly Report on Form 10-Q (File No. 000-23434) for the
quarter ended October 30, 2004;
(c) The Company's Quarterly Report on Form 10-Q (File No. 23434) for the
quarter ended July 31, 2004;
(d) The Company's Quarterly Report on Form 10-Q (File No. 23434) for the
quarter ended April 30, 2004; and
(e) The description of the Company's Common Stock contained in its Registration
Statement on Form S-3 (Registration Nos. 333-26539 and 333-28603) filed
with the Commission on June 6, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") after 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 removes from registration all securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
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 or is deemed to be incorporated
by reference herein modifies 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
The law firm of Ruskin Moscou Faltischek, P.C. has acted as counsel for
the Company in the preparation of this Registration Statement. As of February 3,
2005, certain members of the firm beneficially owned an aggregate of one
thousand (1,000) shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides for the indemnification of officers and directors under
certain circumstances against expenses incurred in successfully defending
against a claim and authorizes Delaware corporations to indemnify their officers
and directors under certain circumstances against expenses and liabilities
incurred in legal proceedings involving such persons because of their being or
having been an officer or director.
Section 102(b)(7) of the DGCL permits a corporation, by so providing in
its certificate of incorporation, to eliminate or limit director's personal
liability to the corporation and its stockholders for monetary damages arising
out of certain alleged breaches of their fiduciary duty; provided, however, that
no such limitation of liability may affect a director's liability with respect
to any of the following: (i) breaches of the director's duty of loyalty to the
corporation or its stockholders; (ii) acts or omissions not made in good faith
or which involve intentional misconduct of knowing violations of law; (iii)
pursuant to Section 174 of the DGCL, liability for dividends paid or stock
repurchased or redeemed in violation of the DGCL; or (iv) any transaction from
which the director derived an improper personal benefit.
The above is a general summary of certain provisions of the DGCL and is
subject, in all cases, to specific and detailed provisions of the DGCL.
Article Eighth of the Company's Certificate of Incorporation provides
that the personal liability of the directors of the corporation is eliminated to
the fullest extent permitted by the provisions of paragraph (7) of subsection
(b) of ss.102 of the DGCL.
Article Ninth of the Company's Certificate of Incorporation provides
that all persons who the Company is empowered to indemnify pursuant to the
provisions of Section 145 of the DGCL (or any similar provision or provisions of
applicable law at the time in effect), shall be indemnified by the Company to
the full extent permitted thereby. The foregoing right of indemnification shall
not be deemed to be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
The Company's By-Laws provide that the Company shall indemnify each
director and such of the Company's officers, employees and agents as the Board
of Directors shall determine from time to time to the fullest extent provided by
the laws of the State of Delaware.
The Company currently maintains directors' and officers' liability
insurance coverage for all directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Hirsch International Corp. 2003 Stock Option Plan, as hereby amended.
5.1 Opinion of Ruskin Moscou Faltischek, P.C.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Ruskin Moscou Faltischek, P.C. (contained in Exhibit 5.1
hereof)
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
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.
(2) 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.
(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 Company hereby undertakes that, for purposes 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
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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 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 Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange 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
is 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Hauppauge, New York on the 8th day of February, 2005.
HIRSCH INTERNATIONAL CORP.
By: /s/ Beverly Eichel
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Beverly Eichel, Vice President-Finance
Chief Financial Officer and Secretary
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed on its behalf by the
undersigned, thereunto duly authorized, in Hauppauge, New York on the 8th day of
February, 2005.
Members of the Board of Directors:
/s/ Henry Arnberg Chairman of the Board of Directors
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Name: Henry Arnberg
/s/ Paul Gallagher President, Chief Executive Officer,
- --------------------------------------------Chief Operating Officer and Director
Name: Paul Gallagher
/s/ Beverly Eichel Vice President - Finance, Chief
- ----------------------------------------------- Financial Officer and Secretary
Name: Beverly Eichel
/s/ Daniel Vasquez Corporate Controller
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Name: Daniel Vasquez
/s/ Marvin Broitman Director
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Name: Marvin Broitman
/s/ Mary Ann Domuracki Director
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Name: Mary Ann Domuracki
/s/ Christopher J. Davino Director
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Name: Christopher J. Davino