HRSH Hirsch International (MM)

As filed with the Securities and Exchange Commission on December 18, 2008

 

Registration No. 333- ________

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_________________

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

________________

HIRSCH INTERNATIONAL CORP.

(Exact name of issuer as specified in its charter)

 

 

Hirsch International Corp. 2003 Stock Option Plan, as amended

(Full title of the plans)

Beverly Eichel

Executive Vice President-Finance, Chief

Financial Officer and Secretary

Hirsch International Corp.

50 Engineers Road

Hauppauge, New York 11788

(631) 436-7100

(Name, address and telephone number of agent for service)

 

Copies to:

David E. Fisher, Esq.

Bryan Cave LLP

1290 Avenue of the Americas

New York, NY 10104

Telephone: (212) 541-2000

Fax: (212) 541-4630

 

CALCULATION OF REGISTRATION FEE

 

EXPLANATORY NOTE

Pursuant to General Instruction E to Form S-8 under the Securities Act of 1933, as amended, this Registration Statement is filed by Hirsch International Corp., a Delaware corporation (the “Company”) for the purpose of registering additional securities under the Company's 2003 Stock Option Plan, as amended, which are the same class as those registered under the currently effective Registration Statements on Form S-8 (Registration Nos. 333-122627 and 333-138971) relating to the 2003 Stock Option Plan, as amended (the “Plan”), and the contents of those Registration Statements, including any amendments thereto or filings incorporated therein, are incorporated herein by reference except to the extent that an Item is restated below.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference .

The following documents filed by the Company with the Securities and Exchange Commission (the “SEC”) are incorporated in this Registration Statement by reference:

All documents filed subsequent to the filing date of this Registration Statement with the Commission by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered by this Registration Statement have been sold or which de-registers all such 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 subsequent filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Notwithstanding the foregoing, nothing in this Registration Statement shall be

 

deemed to incorporate information furnished but not filed with the Securities and Exchange Commission pursuant to Item 2.02 or Item 7.01 of Form 8-K.

Item 6. Indemnification of Directors and Officers.

Pursuant to Article Ninth of the Company’s Restated Certificate of Incorporation, the Company shall indemnify any director of officer of the Company to the fullest extent permitted by Section 145 of the Delaware General Corporation Law. Section 145 generally permits a Delaware corporation to indemnify its directors and officers against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation — a ‘‘derivative action’’), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. Additionally, Section 145 of the Delaware General Corporation Law contains a similar standard that is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification in which the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s charter, bylaws, disinterested director vote, stockholder vote, agreement or otherwise.

Pursuant to Article Eighth of the Company’s Restated Certificate of Incorporation, the personal liability of the directors of the corporation is eliminated to the fullest exent permitted by Section 102(b)(7) of the Delaware General Corporation Law. Section 102(b)(7) generally provides that a corporation, by so providing in its certificate of incorporation, may 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 Delaware General Corporation Law, 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 11.6(A) of the Company’s Amended and Restated By-Laws generally provides that the Company, to the maximum extent permitted by the laws of the state of Delaware, shall indemnify and upon request advance expenses to any director or officer by reason of the fact that such person is or was a party to any threatened, pending or completed action, suit, proceeding or claim as a result of such person’s service as a director or an officer.

Each of the current members of the Board of Directors is a party to an Indemnity Agreement with the Company. Generally, these agreements provide that the Company will indemnify such individuals to the fullest extent permitted by law and will maintain a directors and officers’ liability insurance policy on his or her behalf. The Indemnity Agreements also provide for payment of any and all expenses (including attorney’s fees), judgments and amounts paid in settlement or reasonably incurred in connection with a suit or action arising from service to the Company, subject to this indemnification being unavailable if it is ultimately determined that, among other things, the person’s conduct was knowingly fraudulent, deliberately dishonest or constituted willful misconduct.

The Employment Agreements of each of Paul Gallagher, the President, Chief Executive Officer and Chief Operating Officer of the Company, and Beverly Eichel, the Executive Vice President-Finance and Administration, Chief Financial Officer (Principal Accounting and Financial Officer) and Secretary

 

 

of the Company, provide that the Company, to the maximum extent permitted by law, shall defend, indemnify and hold each such officer harmless from and against all claims, damages, losses and expenses, including reasonable attorneys’ fees and disbursements, arising out of the performance of each such executive’s duties pursuant to their respective employment agreement, in furtherance of the Company’s business and within the scope of their respective employment.

The Company currently maintains directors and officers liability insurance coverage for all directors and officers.

Item 8. Exhibits .

_____________________________________________

 

 

 

 

 

* Filed herewith.

Item 9. Undertakings .

 

 

which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and

provided, however, that paragraphs (1)(a)(i) and (1)(a)(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 by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

 

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 Hauppauge, state of New York, on the 18th day of December, 2008.

 

 

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Paul Gallagher and Beverly Eichel, and each or any of them, as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including, without limitation, post-effective amendments and documents in connection therewith) to the registration statement, and to file the same with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or either of them, or their or his or her substitute or 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 by the following persons in the capacities and on the date indicated.

 

 

 

EXHIBIT INDEX

 

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* Filed herewith.