As filed
with the Securities and
Exchange Commission
on March 19,
2008
;
Registration
No. 333-______
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
____________________
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES
ACT OF 1933
__________________
HURCO
COMPANIES, INC.
(Exact
name of registrant as specified in its charter)
|
Indiana
|
35-1150732
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
No.)
|
|
One
Technology Way
Indianapolis,
Indiana 46268
(317)
293-5309
|
|
|
(Address
of Principal Executive Offices) (Zip Code)
|
|
HURCO
COMPANIES, INC. 2008 EQUITY INCENTIVE PLAN
(Full
title of the plan)
John
G. Oblazney
Vice
President and Chief Financial Officer
Hurco
Companies, Inc.
One
Technology Way
Indianapolis,
Indiana 46268
(Name
and address of agent for service)
(317)
293-5309
(Telephone
number, including area code, of agent for service)
Copy
to:
David C.
Worrell
Baker &
Daniels LLP
600 East
96th Street, Suite 600
Indianapolis,
Indiana 46240
(317)
569-9600
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities
to
be Registered
|
Amount
to be Registered
|
Proposed
Maximum Offering Price
Per
Share
|
Proposed
Maximum Aggregate Offering Price
|
Amount
of Registration Fee
|
|
Common
stock, no par value
|
750,000(1)
|
$43.60(2)
|
$32,700,000
(2)
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$1,285.11
(2)
|
|
(1)
|
This
Registration Statement registers 750,000 shares of common stock under the
2008 Equity Incentive Plan (the “2008 Plan”). In addition, pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also registers additional
shares of common stock as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends, and similar transactions in
accordance with the anti-dilution provisions of the 2008
Plan.
|
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee and computed in
accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low sale prices of the common
stock as reported by the Nasdaq Global Market on March 17, 2008, which was
$43.60 per share.
|
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
As
permitted by Rule 428 under the Securities Act, this Registration Statement
omits the information specified in Part I of Form S-8. The documents
containing the information specified in Part I will be delivered to the
participants in the Hurco Companies, Inc. 2008 Equity Incentive Plan (the
"2008 Plan") covered by this Registration Statement as required by
Rule 428(b). Such documents are not required to be, and are not
being, filed by Hurco Companies, Inc. (the "Company" or "Registrant") 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. Such documents, together with
the documents incorporated by reference herein pursuant to Item 3 of Part II of
this Registration Statement on Form S-8, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation
of Documents by Reference.
|
The
following documents heretofore filed by the Registrant with the Commission are
incorporated by reference in this Registration Statement:
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(1)
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended
October 31, 2007;
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(2)
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The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended
January 31, 2008;
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(3)
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The
Registrant’s Current Report on Form 8-K filed with the Commission on
February 28, 2008; and
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(4)
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The
description of the Registrant’s Common Stock, without par value, contained
in the Registrant’s Registration Statement on Form 10 dated
February 18, 1980, including any amendments or reports filed for the
purpose of updating such
descriptions.
|
In
addition, all documents subsequently filed by the Registrant 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
hereby have been sold or which deregisters all securities offered hereby 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 filing of such
documents. Nothing in this Registration Statement shall be deemed to
incorporate information furnished but not filed on Form 8-K.
The
Registrant will promptly provide without charge to each person to whom a
prospectus is delivered a copy of any or all information that has been
incorporated herein by reference (not including exhibits to the information that
is incorporated by reference unless such exhibits are specifically incorporated
by reference into such information) upon the written or oral request of such
person directed to the Secretary of the Registrant at its principal offices, One
Technology Way, Indianapolis, Indiana 46268, telephone (317)
293-5309.
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Item 4.
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Description
of Securities.
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Not
applicable.
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Item 5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
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Item 6.
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Indemnification
of Directors and Officers.
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The
Indiana Business Corporation Law provides that a corporation, unless limited by
its Articles of Incorporation, is required to indemnify its directors and
officers against reasonable expenses incurred in the successful defense of any
proceeding to which the director or officer was a party because of serving as a
director or officer of the corporation.
The
Registrant's By-Laws require that the Registrant, to the fullest extent
permitted by the Indiana Business Corporation Law, indemnify any person who is
made a party to or who is involved in any proceeding, by reason of the fact that
he or she is or was a director, officer, employee or agent of the Registrant,
against certain liabilities incurred by him or her in connection with such
proceeding if he or she acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant, and,
with respect to any criminal proceeding, had no reasonable cause to believe his
or her conduct was unlawful.
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Item 7.
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Exemption
From Registration Claimed.
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Not
applicable.
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Item 8.
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Exhibits.
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The list
of Exhibits is incorporated herein by reference to the Index of
Exhibits.
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Item 9.
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Undertakings.
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(a)
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The
undersigned Registrant hereby
undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective
date of the 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 the registration
statement; and
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(iii)
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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; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 Securities and Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the registration
statement.
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(2)
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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.
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(3)
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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.
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(b)
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The
undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and 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.
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(c)
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Insofar
as indemnification for liabilities arising under the Securities 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
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification 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 against the Registrant 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
Securities Act and will be governed by the final adjudication of such
issue.
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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 Indianapolis, State of Indiana, on this 19th day of March,
2008.
HURCO
COMPANIES, INC.
By: /s/ Michael Doar
Michael
Doar
Chairman of the Board and
Chief Executive Officer
POWER
OF ATTORNEY
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in their respective capacities and on
the respective dates indicated opposite their names. Each person
whose signature appears below hereby authorizes each of Michael Doar and John G.
Oblazney, each with full power of substitution, to execute in the name and on
behalf of such person any post-effective amendment to this Registration
Statement and to file the same, with exhibits thereto, and other documents in
connection therewith, making such changes in this Registration Statement as the
registrant deems appropriate, and appoints each of Michael Doar and John G.
Oblazney, each with full power of substitution, attorney-in-fact to sign any
amendment and any post-effective amendment to this Registration Statement and to
file the same, with exhibits thereto, and other documents in connection
therewith.
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Signature
|
Title
|
Date
|
|
/s/ Michael
Doar
Michael
Doar
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Chairman
of the Board, Chief Executive Officer and Director (Principal Executive
Officer)
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March 19,
2008
|
|
/s/ John G.
Oblazney
John
G. Oblazney
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Vice
President, Secretary, Treasurer and Chief Financial Officer (Principal
Financial Officer)
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March 19,
2008
|
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/s/ Sonja K.
McClelland
Sonja
K. McClelland
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Corporate
Controller and Assistant Secretary (Principal Accounting
Officer)
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March 19,
2008
|
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/s/ Stephen H.
Cooper
Stephen
H. Cooper
|
Director
|
March 19,
2008
|
|
/s/ Robert W.
Cruickshank
Robert
W. Cruickshank
|
Director
|
March 19,
2008
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/s/ Philip
James
Philip
James
|
Director
|
March 19,
2008
|
|
/s/ Michael P.
Mazza
Michael
P. Mazza
|
Director
|
March 19,
2008
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/s/ Richard T.
Niner
Richard
T. Niner
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Director
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March 19,
2008
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/s/ Charlie
Rentschler
Charlie
Rentschler
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Director
|
March 19,
2008
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/s/ Janu
Sivanesan
Janu
Sivanesan
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Director
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March 19,
2008
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INDEX
OF EXHIBITS
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Exhibit
No.
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Description
of
Exhibit
|
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4.1
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Amended
and Restated Articles of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended July 31, 2000).
|
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4.2
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Amended
and Restated By-Laws of the Registrant as amended through September 27,
2006 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current
Report on Form 8-K filed on September 27, 2006).
|
|
4.3
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Hurco
Companies, Inc. 2008 Equity Incentive Plan (incorporated herein by
reference to Appendix A to the Registrant’s Definitive Proxy
Statement dated January 28, 2008).
|
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5
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Opinion
of Baker & Daniels LLP regarding legality of the securities being
registered.
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23.1
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Consent
of Crowe Chizek and Company LLC.
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23.2
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Consent
of PricewaterhouseCoopers LLP.
|
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23.3
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Consent
of Baker & Daniels LLP (included in Exhibit 5).
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24
|
Powers
of Attorney (included on the Signature Page of this Registration
Statement).
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EXIBIT
5
Baker
& Daniels llp
600 E.
96th Street
Suite 600
Indianapolis,
Indiana 46240
March 19,
2008
Hurco
Companies, Inc.
One
Technology Way
Indianapolis,
Indiana 46268
Re: Registration
Statement on Form S-8
Ladies
and Gentlemen:
We have
acted as counsel to Hurco Companies, Inc., an Indiana corporation (the
“Company”), in connection with the preparation and filing with the Securities
and Exchange Commission (the “Commission”) of the Company’s Registration
Statement on Form S-8 (the “Registration Statement”) under the Securities Act of
1933 (the “Act”), registering the offer and sale of up to 750,000 shares
(the “Shares”) of the Company’s Common Stock, no par value, pursuant to the
Hurco Companies, Inc. 2008 Equity Incentive Plan (the "2008 Plan").
We have
examined the Registration Statement, the Restated Articles of Incorporation and
Restated By-Laws of the Company, minutes of the proceedings of the Company’s
Board of Directors authorizing the issuance of the Shares, and such other
documents as we have considered necessary. We have also examined a
certificate of the Secretary of the Company dated the date hereof (the
“Certificate”). In such examination, we have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, the conformity with
originals of all documents submitted to us as copies (and the authenticity of
the originals of such copies), and that all public records reviewed are accurate
and complete. As to factual matters, we have relied on the
certifications, statements or representations of the Company (including the
Certificate) and have not independently verified the matters stated
therein.
Based on
the foregoing, we are of the opinion that the Shares have been duly authorized
and, when the Registration Statement shall have become effective and the Shares
have been issued in accordance with the 2008 Plan, the Shares will be
validly issued, fully paid and nonassessable.
This
opinion letter is solely for the use of the Company in connection with the
Registration Statement. This opinion may not be relied on by any
other person or in any other connection without our prior written
approval. This opinion is limited to the matters set forth herein,
and no other opinion should be inferred beyond the matters expressly
stated.
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving such consent, we do not thereby concede that we
are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission
thereunder.
Very
truly yours,
/s/ BAKER
& DANIELS LLP
EXHIBIT
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Hurco Companies, Inc. 2008 Equity Incentive Plan
of our report dated January 10, 2008, with respect to the consolidated
financial statements and financial statement schedule of Hurco Companies,
Inc. and subsidiaries and the effectiveness of internal control
over financial reporting, which report appears in the Annual Report on
Form 10-K of Hurco Companies, Inc. for the year ended October 31,
2007.
/s/ Crowe
Chizek and Company LLC
Indianapolis,
Indiana
March 19,
2008
EXHIBIT
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby
consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated January 18, 2006 relating to the consolidated
financial statements and financial statement schedule, which appears in the
Annual Report on Form 10-K for Hurco Companies, Inc. for the year
ended October 31, 2007.
/s/
PricewaterhouseCoopers LLP
PricewaterhouseCoopers
LLP
Indianapolis,
Indiana
March 19,
2008