As filed with the Securities and Exchange Commission on November 9, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DTS, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware |
| 77-0467655 |
(State or Other Jurisdiction of |
| (I.R.S. Employer |
Incorporation or Organization) |
| Identification No.) |
5220 Las Virgenes Road, Calabasas, CA 91302
(Address of Principal Executive Offices)
DTS, INC. 2014 NEW EMPLOYEE INCENTIVE PLAN
(Full Title of the Plan)
Jon E. Kirchner
Chairman and Chief Executive Officer
DTS, Inc.
5220 Las Virgenes Road,
Calabasas, CA 91302
(Name and Address of Agent For Service)
(818) 436-1000
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Michael S. Kagnoff
DLA Piper LLP (US)
4365 Executive Drive, Suite 1100
San Diego, California 92121
Telephone: (858) 677-1400
Facsimile: (858) 677-1401
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o |
| Accelerated filer x |
| Non-accelerated filer o |
| Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
| |||
|
| Proposed Maximum |
| Proposed Maximum |
|
|
|
|
| |||
|
| Amount to be |
| Offering Price per |
| Aggregate Offering |
| Amount of |
| |||
Title of Securities to be Registered |
| Registered(1) |
| Share (2) |
| Price |
| Registration Fee |
| |||
Common Stock $0.0001 par value per share |
| 150,000 |
| $ | 30.93 |
| $ | 4,639,500 |
| $ | 468 |
|
(1) This Registration Statement on Form S-8 (this “Registration Statement”) covers (i) shares of Common Stock, par value $0.0001 per share (“Common Stock”), of DTS, Inc. (the “Registrant”), issuable pursuant to the DTS, Inc. 2014 New Employee Incentive Plan (the “2014 Plan”); and (ii) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), any additional shares of Common Stock that become issuable under the 2014 Plan by reason of any stock dividend, stock split or other similar transaction.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, solely for the purpose of computing the registration fee, based on the average of the high and low prices reported for a share of Common Stock on the NASDAQ Global Market on November 4, 2015.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplement pursuant to Rule 424 of the Securities Act. Such documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The rules of the Commission allow us to incorporate by reference into this registration statement the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this registration statement, and information that we file later with the Commission will automatically update and supersede this information. This registration statement incorporates by reference the documents listed below (other than portions of these documents that are deemed furnished under applicable Commission rules rather than filed and exhibits furnished in connection with such items):
(a) Our Annual Report on Form 10-K (Commission file number 000-50335-15703472) for the year ended December 31, 2014;
(b) All other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the annual report referred to in (a) above (in each case, except for the information furnished under Items 2.02 or 7.01 in any current report on Form 8-K); and
(c) The description of our Common Stock contained in the Registration Statement on Form 8-A (Commission file number 000-50335-03776600) filed with the Commission on July 7, 2003, pursuant to Section 12 under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities 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 reports and other documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this registration statement.
For the purposes of this registration statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded 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
Craig S. Andrews, one of our directors, has been Of Counsel to the law firm of DLA Piper LLP (US) since January 2010. In connection with this Registration Statement, DLA Piper LLP (US) is rendering an opinion on the legality of the securities being registered hereunder.
Item 6. Indemnification of Directors and Officers
Our Restated Certificate of Incorporation, as amended (our “Certificate of Incorporation”), provides that, except to the extent prohibited by Delaware law, our directors shall not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty by our directors. Under Delaware law, our directors have a fiduciary duty to us which is not eliminated by this provision in the certificate and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available. In addition, each of our directors will continue to be subject to liability under Delaware law for breach of the director’s duty of loyalty to us for acts or omissions which are found by a court of competent jurisdiction to be not in good faith or which involve intentional misconduct or knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are prohibited by Delaware law. This provision does not affect the directors’ responsibilities under any other laws, such as the Federal securities laws or state or Federal environmental laws.
Section 145 of the Delaware General Corporation Law empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers, provided that this provision shall not eliminate or limit the liability of a director for the following:
· any breach of the director’s duty of loyalty to us or our stockholders;
· acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
· unlawful payments of dividends or unlawful stock purchases or redemptions; or
· for any transaction from which the director derived an improper personal benefit.
Delaware law provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under our Amended and Restated Bylaws (as currently in effect, the “Restated Bylaws”), any agreement, a vote of stockholders or disinterested directors or otherwise. Our Certificate of Incorporation eliminates the personal liability of directors to the fullest extent permitted by Delaware law. In addition, our Certificate of Incorporation and our Restated Bylaws provide that we may fully indemnify 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 (whether civil, criminal, administrative or investigative), by reason of the fact that such person is or was one of our directors, officers, employees or other agents, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding.
We have also entered into agreements to indemnify our directors and executive officers, to provide contractual indemnification in addition to the indemnification provided for in our Certificate of Incorporation and Restated Bylaws. We believe that these provisions and agreements are necessary to attract and retain qualified directors and executive officers. Our Restated Bylaws also permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions, regardless of whether Delaware law would permit indemnification. We have obtained liability insurance for our officers and directors.
At present, there is no pending litigation or proceeding involving any director, officer, employee or agent as to which indemnification will be required or permitted under our Certificate of Incorporation. We are not aware of any threatened litigation or proceeding that may result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See the Exhibit Index attached hereto, which is incorporated into this Item 8 by reference.
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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 reports filed with or furnished to the 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.
(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 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 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 herein, 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 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 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, 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 Calabasas, State of California, on this 9th day of November, 2015.
| DTS, INC. | |
|
|
|
| By: | /s/ Jon E. Kirchner |
|
| Jon E. Kirchner |
|
| Chairman and Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned directors and/or officers of DTS, Inc., hereby severally constitute and appoint Jon E. Kirchner, Chairman and Chief Executive Officer, and Melvin L. Flanigan, Executive Vice President, Finance and Chief Financial Officer, and each of them individually, with full powers of substitution and resubstitution, our true and lawful attorneys, with full powers to them and each of them to sign for us, in our names and in the capacities indicated below, the Registration Statement on Form S-8 filed with the Commission, and any and all amendments to said Registration Statement (including post-effective amendments), and any registration statement filed pursuant to Rule 462(b) under the Securities Act in connection with the registration under the Securities Act of the Registrant’s equity securities, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933 this Registration Statement has been signed by the following persons in the capacities indicated on this 9th day of November, 2015:
Signature |
| Title(s) |
|
|
|
/s/ Jon E. Kirchner |
| Chairman, Chief Executive Officer, and Director |
Jon E. Kirchner |
| (principal executive officer) |
|
|
|
/s/ Melvin L. Flanigan |
| Executive Vice President, Finance and Chief Financial Officer |
Melvin L. Flanigan |
| (principal financial and accounting officer) |
|
|
|
/s/ Craig S. Andrews |
|
|
Craig S. Andrews |
| Director |
|
|
|
/s/ L. Gregory Ballard |
|
|
L. Gregory Ballard |
| Director |
|
|
|
/s/ David C. Habiger |
|
|
David C. Habiger |
| Director |
|
|
|
/s/ V. Sue Molina |
|
|
V. Sue Molina |
| Director |
EXHIBIT INDEX
Exhibit |
|
|
| Filed |
| Incorporated by Reference | ||||
Number |
| Exhibit Title |
| Herewith |
| Form |
| File No. |
| Date Filed |
4.1 |
| Composite Certificate of Incorporation |
|
|
| 10-K |
| 000-50335-13698275 |
| 3/18/13 |
4.2 |
| Amended and Restated Bylaws |
|
|
| 8-K |
| 000-50335-15628362 |
| 2/18/15 |
5.1 |
| Opinion of DLA Piper LLP (US) |
| X |
|
|
|
|
|
|
23.1 |
| Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm |
| X |
|
|
|
|
|
|
23.2 |
| Consent of Grant Thornton LLP, Independent Registered Pubic Accounting Firm |
| X |
|
|
|
|
|
|
23.3 |
| Consent of DLA Piper LLP (US) (filed as part of Exhibit 5.1) |
| X |
|
|
|
|
|
|
24.1 |
| Powers of Attorney (included on signature page) |
| X |
|
|
|
|
|
|
99.1 |
| DTS, Inc. 2014 New Employee Incentive Plan |
|
|
| 8-K |
| 000-50335-141055144 |
| 8/20/14 |
99.2 |
| Amendment Number 1 to the DTS, Inc. 2014 New Employee Incentive Plan |
|
|
| S-8 |
| 333-206283-151041722 |
| 8/10/15 |
99.3 |
| Amendment Number 2 to the DTS, Inc. 2014 New Employee Incentive Plan |
| X |
|
|
|
|
|
|