UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HSW International, Inc.
(Exact name of Registrant as specified in its charter)
Delaware |
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33-1135689 |
(State
or other jurisdiction of incorporation)
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IRS Employer Identification No. |
One
Capital City Plaza
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(Address of Principal Executive Offices) |
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(Zip Code) |
HSW International 2006 Equity Incentive Plan
INTAC International, Inc. 2001 Long Term Incentive Plan
(Full title of the plans)
Hank Adorno
One Capital City Plaza
3350 Peachtree Road, Suite 1150
Atlanta, Georgia 30326
(Full title of the plans)
(404) 926-0660
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
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Amount to be registered (1) |
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Proposed maximum offering price per share (2) |
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Proposed maximum aggregate offering price (2) |
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Amount of registration fee |
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Common Stock, $0.001 par value, issuable under the 2006 Equity Incentive Plan |
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1,210,278 |
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$ |
6.55 |
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$ |
7,927,321 |
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$ |
243.37 |
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Common Stock, $0.001 par value |
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6,789,722 |
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$ |
6.50 |
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$ |
44,133,193 |
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$ |
1,354.89 |
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Common Stock, $0.001 par value, under the 2001 Long Term Incentive Plan |
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150,000 |
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$ |
3.50 |
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$ |
525,000 |
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$ |
16.12 |
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Common Stock, $0.001 par value, under the 2001 Long Term Incentive Plan |
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50,000 |
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$ |
9.89 |
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$ |
494,500 |
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$ |
15.18 |
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Common Stock, $0.001 par value, under the 2001 Long Term Incentive Plan |
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150,000 |
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$ |
6.40 |
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$ |
960,000 |
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$ |
29.47 |
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Common Stock, $0.001 par value, under the 2001 Long Term Incentive Plan |
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50,000 |
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$ |
9.02 |
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$ |
451,000 |
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$ |
13.85 |
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Common Stock, $0.001 par value, under the 2001 Long Term Incentive Plan |
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100,000 |
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$ |
15.75 |
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$ |
1,575,000 |
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$ |
48.35 |
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(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, the Common Stock offered hereby shall also be deemed to cover additional securities to be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the Act), based on the high and low sales prices of the Common Stock reported on the NASDAQ National Market on October 31, 2007. The Registrant has already granted options related to some of the shares being registered under this registration statement and in such case, this is calculated solely for purposes of this offering under Rule 457(h)(1) of the Act on the basis of the price at which the options may be exercised.
EXPLANATORY NOTE
The purpose of this Registration Statement is to register (i) 8,000,000 shares of Common Stock, $0.001 par value (the Common Stock) previously issued or issuable pursuant to HSW International, Inc.s (the Registrant ) HSW International 2006 Equity Incentive Plan (the HSW Equity Incentive Plan ) and (ii) 500,000 shares of Common Stock previously issued pursuant to the INTAC International, Inc. 2001 Long Term Incentive Plan (the INTAC LTIP ). The INTAC LTIP is a pre-existing plan of INTAC International, Inc. ( INTAC ), and the INTAC LTIP and grants made under the INTAC LTIP were assumed by the Registrant in connection with the merger of INTAC with a subsidiary of the Registrant.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference in this Registration Statement the following documents:
(1) The Registrants Registration Statement on Form S-4/A, File No. 333-141286 (filed with the Commission on July 10, 2007).
(2) The description of Common Stock of the Registrant contained in the Registrants Registration Statement on Form 8-A, File No. 001-33720 (filed with the Commission on October 3, 2007).
(3) Current Reports on Form 8-K filed on October 9, 2007, October 15, 2007 and October 18, 2007.
All documents subsequently filed by the Registrant and the Plans pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendments which indicates that all securities offered have been sold or which deregisters all 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 filing of such documents unless all or a portion of such documents are deemed not to be filed.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
Under the Registrants Amended and Restated Certificate of Incorporation and Amended and Restated By-laws (and in accordance with Section 145 of the Delaware General Corporation Law), the Registrant will indemnify to the fullest extent permitted by the Delaware General Corporation Law any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding. These include civil, criminal, administrative, investigative or other proceedings by reason of the fact that the person is or was a director, officer or employee of the Registrant, or is or was serving in that capacity or as an agent at the request of the Registrant for another entity.
The Registrants indemnity covers expenses, judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred in connection with the defense or settlement of an action, suit or proceeding if the person acted in good faith and in a manner reasonably believed to be in or not opposed to the Registrants best interest and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. The Registrant will indemnify a person in a derivative action under the same conditions, except that no indemnification is permitted without judicial approval if the person is adjudged to be liable to the Registrant in performance of his or her duty. Derivative actions are actions by the Registrant or in the Registrants right to procure a judgment in the Registrants favor. The Registrants agents may be similarly indemnified at the discretion of the Registrants board of directors.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons that control the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is therefore unenforceable.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. |
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Description |
4.1 |
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INTAC International, Inc. 2001 Long Term Incentive Plan (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-8 of INTAC International, Inc., File No. 333-115147). |
4.2 |
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HSW International 2006 Equity Incentive Plan * |
5.1 |
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Opinion of Greenberg Traurig, LLP * |
23.1 |
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Consent Letter of W.T. Uniack & Co. CPAs P.C. * |
23.2 |
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Consent Letter of KBA Group LLP * |
24.1 |
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Powers of Attorney (included in the signature pages) |
* Filed herewith.
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The undersigned registrant hereby undertakes to submit the HSW International 2006 Equity Incentive Plan and any amendments thereto to the Internal Revenue Service (IRS) in a timely manner and will make all changes required by the IRS in order to qualify the Plan.
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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) 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
(iii) 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) 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 the 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; and
(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 Securities Act, each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
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applicable, each filing of an employee benefit plans 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, executive officers and controlling persons of the registrant pursuant to the provisions described in Item 6 above, or otherwise, the registrant has been advised that in the opinion of the 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 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 Atlanta, State of Georgia, on the 5 th day of November, 2007.
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HSW INTERNATIONAL, INC. |
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By: |
/s/ HANK ADORNO |
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Name: Hank Adorno |
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Title: Vice Chairman |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Hank Adorno his true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to this Registration Statement on Form S-8, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post effective amendments thereto, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Commission, granting unto 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 in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Name |
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Title |
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Date |
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/s/ Hank Adorno |
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Vice Chairman (Principal Executive Officer) and Director |
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November 5, 2007 |
Hank Adorno |
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/s/ David Darnell |
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Chief Financial Officer (Principal Financial Officer) |
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November 5, 2007 |
David Darnell |
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/s/ Jeffrey T. Arnold |
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Director |
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November 5, 2007 |
Jeffrey T. Arnold |
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/s/ Wei Zhou |
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Director |
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November 5, 2007 |
Wei Zhou |
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/s/ Theodore P. Botts |
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Director |
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November 5, 2007 |
Theodore P. Botts |
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/s/ Boland Jones |
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Director |
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November 5, 2007 |
Boland Jones |
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/s/ Thomas Tull |
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Director |
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November 5, 2007 |
Thomas Tull |
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/s/ Shing Tao |
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Director |
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November 5, 2007 |
Shing Tao |
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INDEX TO EXHIBITS
Exhibit No. |
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Description |
4.1 |
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INTAC International, Inc. 2001 Long Term Incentive Plan (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-8 of INTAC International, Inc., File No. 333-115147). |
4.2 |
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HSW International 2006 Equity Incentive Plan * |
5.1 |
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Opinion of Greenberg Traurig, LLP * |
23.1 |
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Consent Letter of W.T. Uniack & Co. CPAs P.C. * |
23.2 |
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Consent Letter of KBA Group LLP * |
24.1 |
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Powers of Attorney (included in the signature pages) |
* Filed herewith.
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Exhibit 4.2
HSW INTERNATIONAL, INC.
2006 EQUITY INCENTIVE PLAN
to attract and retain the best available personnel for positions of substantial responsibility,
to provide additional incentive to Employees, Directors and Consultants, and
to promote the success of the Companys business.
The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Stock Appreciation Rights, Restricted Stock Units, Performance Units, Performance Shares, and Other Stock Based Awards.
2
Notwithstanding the preceding, for federal, state, and local income tax reporting purposes and for such other purposes as the Administrator deems appropriate, the Fair Market Value shall be determined by the Administrator in accordance with uniform and nondiscriminatory standards adopted by it from time to time.
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4
5
6
7
8
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An Option will be deemed exercised when the Company receives: (x) written or electronic notice of exercise (in accordance with the Award Agreement) from the person entitled to exercise the Option, and (y) full payment for the Shares with respect to which the Option is exercised (including provision for any applicable tax withholding). Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Awarded Stock, notwithstanding the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 15 of the Plan or the applicable Award Agreement.
Exercising an Option in any manner will decrease the number of Shares thereafter available for sale under the Option, by the number of Shares as to which the Option is exercised.
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At the discretion of the Administrator, the payment upon SAR exercise may be in cash, in Shares of equivalent value, or in some combination thereof.
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Exhibit 5.1
[Greenberg Traurig Letterhead]
November 2, 2007
HSW International, Inc.
One Capital City Plaza, Suite 1150
3350 Peachtree Road
Atlanta, GA 30326
Re: Registration Statement on Form S-8 for the HSW International 2006 Equity Incentive Plan and INTAC International, Inc. 2001 Long Term Incentive Plan (collectively, the Plans)
Ladies and Gentlemen:
On or about the date hereof, HSW International, Inc., a Delaware corporation (the Company), transmitted for filing with the Securities and Exchange Commission (the Commission) a Registration Statement on Form S-8 (the Registration Statement) under the Securities Act of 1933, as amended (the Securities Act). The Registration Statement relates to the issuance, offering and/or sale by the Company of up to an aggregate of 8,000,000 shares of common stock, par value $0.001 per share (the Common Stock), of the Company, reserved for issuance from time to time and upon the exercise of the stock options or other awards granted or to be granted under the Companys 2006 Executive Incentive Compensation Plan and to the issuance, offering and/or sale by the Company of up to an aggregate of 500,000 shares of Common Stock reserved for issuance from time to time and upon exercise of the stock options granted under the INTAC International, Inc. 2001 Long Term Incentive Plan. We have acted as special counsel to the Company in connection with the preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original or a copy, certified to our satisfaction, of (i) the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company; (ii) records of corporate proceedings of the Company authorizing and/or assuming the Plans, any amendments thereto, and the preparation of the Registration Statement and related matters; (iii) the Registration Statement and exhibits thereto; and (iv) such other documents and instruments as we have deemed necessary for the expression of the opinions herein contained. In making the foregoing examinations, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. As to various questions of fact material to this opinion, we have relied, to the extent we deemed reasonably appropriate, upon representations or certificates of officers or directors of the
Company and upon documents, records and instruments furnished to us by the Company, without independently checking or verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the shares of Common Stock will be, when issued and sold in the manner set forth in the applicable Plan, legally issued, fully paid and nonassessable.
This opinion is rendered only to you and is solely for your benefit in connection with the transactions covered hereby. This opinion may not be relied upon by you for any other purpose, or furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose, without our prior written consent.
The opinions expressed herein are specifically limited to the laws of the State of Delaware and the federal laws of the United States of America and are as of the date hereof. We assume no obligation to update or supplement such opinions to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Sincerely yours,
/s/ Greenberg Traurig, LLP
GREENBERG TRAURIG, LLP
JSA:sws
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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 of our report dated June 14, 2007 with respect to the consolidated financial statements of HSW International, Inc. for the year ended December 31, 2006 included in the registration statement on Form S-4/A (File No. 333-141286), filed with the Securities and Exchange Commission on July 10, 2007.
/s/ W. T. Uniack & Co. CPAs P.C.
W.T. Uniack & Co. CPAs P.C.
Atlanta, Georgia
November 2, 2007
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated December 8, 2006, with respect to the consolidated financial statements and financial schedule of INTAC International, Inc. and managements assessment on the effectiveness of internal control over the financial reporting appearing in the Annual Report on Form 10-K of INTAC International, Inc. for the year ended September 30, 2006.
/s/ KBA GROUP LLP |
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KBA GROUP LLP |
Dallas, Texas |
November 2, 2007 |