As filed with the Securities and Exchange Commission on October 4, 1999
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
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HAUPPAUGE DIGITAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-3227864
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
91 Cabot Court
Hauppauge, New York 11788
(516) 434-1600
(Address of principal executive offices)
1998 Hauppauge Digital, Inc. Incentive Stock Option Plan
(Full title of plan)
Mr. Kenneth R. Aupperle
President
Hauppauge Digital, Inc.
91 Cabot Court
Hauppauge, New York 11788
(Name and address of agent for service)
(516) 434-1600
(Telephone number, including area code, of agent for service)
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Copies to:
Herbert W. Solomon, Esq.
Meltzer, Lippe, Goldstein & Schlissel, P.C.
190 Willis Avenue
Mineola, New York 11501
(516) 747-0300
Fax (516) 747-0653
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered(a) per share offering price fee
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<S> <C> <C> <C> <C>
Common Stock,
par value $.01 350,000(1) $23.3125 $8,159,375 $2,400.00
per share
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TOTAL: $2,400.00
</TABLE>
(a) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
(1) Pursuant to 1998 Hauppauge Digital, Inc. Incentive Stock Option Plan.
(2) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933 and
based upon the maximum option exercise prices for shares of Common Stock
pursuant to options granted to date under the 1998 Hauppauge Digital, Inc.
Incentive Stock Option Plan (referred to herein as the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in the Registration Statement pursuant
to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
This Registration Statement on Form S-8 of Hauppauge Digital, Inc., a
Delaware corporation (the "Registrant"), covers a total of 350,000 shares of the
Registrant's Common Stock, par value $.01 per share ("Common Stock"), reserved
for issuance under the Plans of the Registrant, as follows:
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(i) 350,000 shares pursuant to the 1998 Hauppauge Digital, Inc. Incentive
Stock Option Plan
The Plan was approved and adopted by the Board of Directors on December 17, 1997
and approved by the Company's shareholders on March 12, 1998.
Item 2. Registrant Information and Employee Plan Annual Information
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the 1998 Hauppauge Digital, Inc. Incentive Stock
Option Plan are available without charge by contacting:
Gerald Tucciarone, Treasurer
Hauppauge Digital, Inc.
91 Cabot Court
Hauppauge, New York 11788
(516) 434-1600
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act filed on December 29, 1998;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Registrant's document
referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, dated January 4,
1995, including any amendments thereto or reports filed for the
purpose of updating such description.
(d) The Registrant's proxy statement dated March 2, 1999 pursuant to
Section 14(a) of the Exchange Act.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities
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registered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Any statement contained herein or 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 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 legality of the Common Stock offered hereby has been passed upon by
Meltzer, Lippe, Goldstein & Schlissel, P.C. ("MLG"), legal counsel of the
Company. Attorneys who are partners or counsel in MLG own 1,500 shares of Common
Stock.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law provides, in
relevant part, that the Company may indemnify its directors and officers in the
circumstances therein provided.
Article SEVENTH of the Company's Certificate of Incorporation, as amended,
provides:
No director shall be liable to the corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a
director, except with respect to (1) a breach of the director's duty of
loyalty to the corporation or its stockholders, (2) acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, (3) liability under Section 174 of the Delaware General
Corporation Law or (4) a transaction from which the director derived an
improper personal benefit, it being the intention of the foregoing
provision to eliminate the liability of the corporation's directors to the
corporation or its stockholders to the fullest extent permitted by Section
102(b)(7) of the Delaware General Corporation Law, as amended from time to
time. The corporation shall indemnify to the fullest extent permitted by
Sections 102(b)(7) and 145 of the Delaware General Corporation Law, as
amended from time to time, each person that such Sections grant the
corporation the power to indemnify.
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Article X of the Company's bylaws, as amended, provides the following:
The corporation shall indemnify any person made, or threatened to be
made, a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by
reason of his being or having been a director or officer of the
corporation, or of any other corporation which he served as such at the
request of the corporation, against the reasonable expenses including
attorneys' fees, actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit, or in connection with an
appeal therein, except in relation to matters as to which such director or
officer is adjudged to have been guilty of negligence or misconduct in the
performance of his duty to the corporation.
The corporation shall indemnify any person made, or threatened to be
made, a party to any threatened, pending or completed action, suit or
proceeding other than one by or in the right of the corporation to procure
a judgment in its favor, whether civil, criminal, administrative or
investigative brought to impose a liability or penalty on such person for
an act alleged to have been committed by such person in his capacity of
director or officer of the corporation, or of any other corporation which
he served as such at the request of the corporation, against judgments,
fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees, actually and reasonably incurred n connection with such
action, suit or proceeding, or any appeal therein, if such director or
officer acted in good faith in the reasonable belief that such action was
in the best interests of the corporation, and in criminal actions or
proceedings, without reasonable ground for belief that such action was
unlawful. The termination of any such civil or criminal action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent shall not in itself create a presumption
that any such director or officer did not act in good faith in the
reasonable belief that such action was in the best interests of the
corporation or that he had reasonable ground for belief that such action
was unlawful.
Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation."
Item 7. Exemption From Registration Claimed.
Not applicable.
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Item 8. Exhibits.
4.1 1998 Hauppauge Digital, Inc. Incentive Stock Option Plan
(incorporated by reference to the Registrant's proxy statement
dated January 28, 1998 and filed pursuant to Section 14(a) of the
Exchange Act)
5.1 Opinion of Meltzer, Lippe, Goldstein & Schlissel, P.C., as to the
legality of the securities being offered
23.1 Consent of BDO Seidman, LLP with respect to financial statements
of the Registrant
23.2 Consent of Meltzer, Lippe, Goldstein & Schlissel, P.C.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to include any
additional or changed material information on the plan of distribution.
(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 file a post-effective amendment to remove from registration any of
the securities that remain unsold at the termination of the offering.
(b) The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d)of the Securities
Exchange Act of 1934 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
issuer pursuant to the foregoing provisions, or otherwise, the issuer 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 against such liabilities
(other than the payments by the issuer of expenses incurred or paid by a
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director, officer or controlling person of the issuer in the successful defense
of any action, suit or proceeding) is assented by such director, officer or
controlling person in connection with the securities being registered, the
issuer 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 of 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, 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 September 27, 1999.
HAUPPAUGE DIGITAL, INC.
By: /s/ Kenneth Plotkin
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KENNETH PLOTKIN
Chief Executive Officer, Vice-
President, and Secretary
By: /s/ Kenneth R. Aupperle
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KENNETH R. AUPPERLE
President and Chief Operations
Officer
By: /s/ Gerald Tucciarone
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GERALD TUCCIARONE
Treasurer and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration has been signed below by the following persons on behalf of the
Company and in the capacities and as of the date indicated above.
By: /s/ Kenneth R. Aupperle
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KENNETH R. AUPPERLE
Director
By: /s/ Kenneth Plotkin
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KENNETH PLOTKIN
Director
By: /s/ Steven J. Kuperschmid
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STEVEN J. KUPERSCHMID
Director
By: /s/ Bernard Herman
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BERNARD HERMAN
Director
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EXHIBIT INDEX
Exhibit Number Description
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4.1 1998 Hauppauge Digital, Inc. Incentive
Stock Option Plan (incorporated by
reference to the Registrant's proxy
statement dated January 28, 1998 pursuant
to Section 14(a) of the Exchange Act)
5.1 Opinion of Counsel
23.1 Consent of Independent Certified Public
Accountant
23.2 Consent of Counsel
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EXHIBIT 5.1
[MELTZER, LIPPE, GOLDSTEIN & SCHLISSEL, P.C. LETTERHEAD]
September 27, 1999
Division of Corporate Finance
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, NW
Washington, D.C. 20549
Re: Hauppauge Digital, Inc.
1998 Incentive Stock Option Plan
Gentlemen:
We have acted as counsel for Hauppauge Digital, Inc., a Delaware
corporation (hereinafter called the "Company") in connection with the proposed
issue and sale by the Company of a maximum of 350,000 shares of Common Stock
pursuant to incentive stock options (the "Options") subject to the provisions of
the Company's 1998 Incentive Stock Option Plan (the "Plan").
As counsel to the Company, we have examined the Minute Books of the
Company, together with copies of its Articles of Incorporation and By-Laws. We
have also examined the Plan and the proposed Registration Statement on Form S-8
to be filed with the Securities and Exchange Commission. Based upon the
foregoing, and our examination of such other documents as we deemed pertinent,
we are of the opinion that:
1. The Company is a corporation duly organized and validly existing and in
good standing under and by virtue of the laws of the State of Delaware.
2. The authorized capital of the Company consists of 10,000,000 shares of
Common Stock , par value $.01 per share, of which 4,560,302 shares of Common
Stock are pr esently legally issued and outstanding, fully paid and
non-assessable.
3. The shares of Common Stock of the Company to be issued upon the exercise
of the Options are validly authorized and, assuming (a) the shares of Common
Stock so issuable will be validly authorized on the dates of exercise, (b) on
the dates of exercise, the Options will have been duly executed, issued, and
delivered, will constitute the legal, valid and binding obligations of the
Company, and will (subject to applicable bankruptcy, insolvency, and other laws
affecting the enforceability of creditors' rights
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generally) be enforceable as to the Company in accordance with their terms, and
(c) no change occurs in the applicable law or the pertinent facts, then, when
(d) the pertinent provisions of such blue sky and securities laws as may be
applicable have been complied with and (e) the Options are exercised in
accordance with their terms and the terms of the Plan, the shares of Common
Stock so issuable will be validly issued, fully paid and non-assessable.
Very truly yours,
/s/ Meltzer, Lippe, Goldstein & Schlissel, P.C.
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Meltzer, Lippe, Goldstein
& Schlissel, P.C.
ii
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Hauppauge Digital, Inc.
Hauppauge, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of Hauppauge Digital, Inc.
(the "Company") on Form S-8 of our report dated December 4, 1998 relating to the
consolidated financial statements of the Company appearing in the Company's
Annual Report on Form 10-KSB for the year ended September 30, 1998.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Certified Public Accountants
Dated: Melville, New York
September 27, 1999
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EXHIBIT 23.2
CONSENT OF COUNSEL
We hereby consent to the use of our name wheresoever set forth in this
Registration Statement (S-8) and also to the use of our opinion letter dated
September 27, 1999, which is included in this Registration Statement (S-8).
Dated: Mineola, New York
September 27, 1999
/s/ Meltzer, Lippe, Goldstein & Schlissel, P.C.
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Meltzer, Lippe, Goldstein & Schlissel, P.C.
iv
