As filed with the Securities and Exchange Commission on June 27, 1997
Registration No. 33-94914
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
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. - STOCK OPTION PLAN
(Full title of the plan)
HENRY ARNBERG
PRESIDENT
HIRSCH INTERNATIONAL CORP.
200 Wireless Boulevard
Hauppauge, New York 11788
(516) 436-7100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
RAYMOND S. EVANS, ESQ.
Ruskin, Moscou, Evans
& Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
(516) 663-6500
(516) 663-6641 (facsimile)
CALCULATION OF REGISTRATION FEE
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Number of shares Proposed maximum Proposed maximum
Title of each class of to be Offering price aggregate offering Amount of
securities to be registered registered per share (1) price (1) registration fee (1)
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Class A Common Stock,
$.01 par value (2) 853,125 $22.25 $19,220,906.25 $5,824.51
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(1) Estimated solely for the purposes of calculating the registration fee
and based on the 853,125 shares issuable upon exercise of options reserved for
grant, on the closing sales prices for the Company's Common Stock as quoted on
the Nasdaq National Market on June 24, 1997.
(2) Pursuant to Rule 416, there are also being registered additional shares
of Common Stock as may become issuable pursuant to the anti-dilution provisions
of the plan being registered.
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PART I
EXPLANATORY NOTE
The contents of the Registrant's earlier Registration Statement on Form
S-8, Registration No. 33-94914, are incorporated by reference. This Registration
Statement relates to two amendments of the Hirsch International Corp. Stock
Option Plan (the "Plan"), as follows:
(1) The Plan was first amended to increase the number of shares of Common
Stock authorized to be issued under the Plan, from 196,875 to 750,000 (adjusted
to reflect the Company's 5-for-4 stock split paid in the form of a 25% stock
dividend effective July 22, 1996.)The amendment was approved by the Company's
Board of Directors on June 21, 1996 and ratified by the Company's stockholders
on June 21, 1996; and
(2) The Plan was subsequently amended to increase the number of shares
authorized to be issued from 750,000 to 1,050,000, as approved by the Company's
Board of Directors on June 20, 1997 and ratified by the Company's stockholders
on June 20, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended January 31,
1997;
(b) The Company's Quarterly Reports on Forms 10-Q and 10-Q/A for the
quarter ended April 30, 1997;
(c) The description of the Company's Common Stock contained in its
Registration Statements on Form S-3 (Registration Nos. 333-26539 and 333-28603)
filed with the Commission on June 6, 1997;
(d) The Company's Current Report on Form 8-K filed with the Commission on
May 30, 1997;
(e) The Company's Proxy Statement dated May 20, 1997; and
(f) The Company's Registration Statements on Form S-3, Registration Nos.
333-26539 and 333-28603, as filed with the Commission on June 6, 1997.
All documents subsequently filed by the Registrant 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 validity of the Common Stock offered hereby will be passed upon for the
Registrant by the law firm of Ruskin, Moscou, Evans & Faltischek, P.C. Certain
partners of such firm own an aggregate of approximately 5,000 shares of the
Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
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) of the Delaware General Corporation Law permits a
corporation, by so providing in its certificate of incorporation, to eliminate
or limit director's liability to the corporation and its stockholders for
monetary damages arising out of certain alleged breaches of their fiduciary
duty. Section 102(b)(7) provides 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) liability for dividends paid or stock
repurchased or redeemed in violation of the Delaware General Corporation Law; or
(iv) any transaction from which the director derived an improper personal
benefit. Section 102(b)(7) does not authorize any limitation on the ability of
the corporation or its stockholders to obtain injunctive relief, specific
performance or other equitable relief against directors.
Article Ninth of the Company's Certificate of Incorporation provides that a
director shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except: (i) for any
breach of the duty of loyalty; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violations of law; (iii) for
liability under Section 174 of the Delaware General Corporation Law (relating to
certain unlawful dividends, stock repurchases or stock redemptions); or (iv) for
any transaction from which the director derived any improper personal benefit.
The effect of this provision in the Certificate is to eliminate the rights of
the Company and its stockholders (through stockholders' derivative suits on
behalf of the Company) to recover monetary damages against a director for breach
of the fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in certain limited situations.
This provision does not limit or eliminate the rights of the Company or any
stockholder to seek non-monetary relief such as an injunction or rescission in
the event of a breach of a director's duty of care. These provisions will not
alter the liability of directors under federal securities laws.
Article Tenth of the Company's Certificate of Incorporation provides that
all persons who the registrant is empowered to indemnify pursuant to the
provisions of Section 145 of the General Corporation Law of the State of
Delaware (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 (the "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 and has entered into
indemnification agreements with its directors and officers.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provision 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 Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Hirsch International Corp. Stock Option Plan, as hereby amended.
5.1 Opinion of Ruskin, Moscou, Evans & Faltischek, P.C.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ruskin, Moscou, Evans & Faltischek, P.C. (contained in
Exhibit 5.1 hereof).
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:
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;
(2) That, for the purpose 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 Act, each filing of the registrant'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 Act 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 is
against public policy 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 Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Post-Effective
Amendment No. 1 to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Hauppauge, New York on the 27th day
of June, 1997.
HIRSCH INTERNATIONAL CORP.
By: \s\ Henry Arnberg
Henry Arnberg, President
In accordance with the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 1 to its Registration Statement has
been signed on its behalf by the undersigned, thereunto duly authorized, in
Hauppauge, New York on the 27th day of June, 1997.
Signature Title Date
\s\ Henry Arnberg Chairman of the Board of Directors, June 27, 1997
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Henry Arnberg President and Chief Executive Officer
(Principal Executive Officer)
* Executive Vice President, Chief Operating
Paul Levine Officer and Secretary (Principal Operating
Officer)
* Vice President-Finance and Chief Financial
Kenneth Shifrin Officer (Principal Accounting and
Financial Officer)
* Vice President and Director
Tas Tsonis
* Vice President and Director
Ronald Krasnitz
* Director
Herbert M. Gardner
Director
*
Marvin Broitman
* Director
Douglas Schenendorf
\s\ Henry Arnberg
Henry Arnberg as Attorney-in-Fact
Index to Exhibits
Exhibit Number Description
4.1 Hirsch International Corp. Stock Option Plan, as hereby amended
5.1 Opinion of Ruskin, Moscou, Evans & Faltischek, P.C.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ruskin, Moscou, Evans & Faltischek, P.C. (contained in
Exhibit 5.1 hereof)