As filed with the Securities and Exchange Commission on April 27, 2001
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE SINGING MACHINE COMPANY, INC..
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(Exact Name of Registrant as Specified in its Charter)
Delaware 95-3795478
- -------- ----------
(State or Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
6601 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
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(Address of Principal Executive Office)
The Singing Machine Company, Inc.
Amended and Restated 1994 Management Stock Option Plan
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(Full Title of the Plan)
John Klecha
6601 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
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(Name and Address of Agent for Service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum
------------------------
Title of Each Class of Amount Offering Aggregate
Securities to be to be Price Per Offering Amount of
Registered Registered Share Price Registration Fee
- ------------------------- ----------------- ----------- ------------ -------------------
Common Stock (1) 425,500 $0.43 $ 182,965 $ 45.74
Common Stock (2) 104,000 $1.66 $ 172,640 $ 43.16
Common Stock (3) 685,500 $3.06 $ 2,097,630 $ 524.41
Common Stock (4) 14,500 $4.90 $ 71,050 $ 17.76
- ---------------- -------- ----- ------------ --------------
Total Registration Fee $ 631.07
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(1) Calculated in accordance with Rule 457 based upon the price at which
outstanding options can be exercised.
(2) Calculated in accordance with Rule 457 based upon the price at which the
outstanding options can be exercised.
(3) Calculated in accordance with Rule 457 based upon the price at which the
outstanding options can be exercised.
(4) Calculated in accordance with Rule 457 based upon the price at which the
outstanding options can be exercised.
PART 1. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
The Singing Machine Company, Inc. (the "Company," "we" or "us") has prepared
this Registration Statement on Form S-8 under the Securities Act of 1933, as
amended to register 1,229,500 shares of our common stock, which will be awarded
to eligible persons pursuant to options granted under our Amended and Restated
1994 Management Stock Option Plan (the "Plan").
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in our Amended and Restated 1994
Management Stock Option Plan as specified by Rule 428(b)(1) under the Securities
Act. Such documents are not filed with the Securities and Exchange 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 this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meet the requirements of Section 10(a) of the Securities Act
relating to the Plan.
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 participants pursuant to Rule 428(b) or
additional information about our Plan and its administrators are available
without charge by contacting:
The Singing Machine Company, Inc.
6602 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
John Klecha, Chief Financial Officer
(954) 596-1000
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to documents we file with the SEC. The information incorporated by
reference is considered to be part of this Registration Statement. Information
that we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
until all the shares covered by this Registration Statement have been sold or
deregistered:
o Annual Report on Form 10-KSB for the year ended
March 31, 2000, filed on June 30, 2000;
o Quarterly Report on Form 10-QSB for the quarter ended
June 30, 2000, filed on August 2, 2000;
o Quarterly Report on Form 10-QSB for the quarter ended
September 30, 2000, filed on November 14, 2000;
o Quarterly Report on Form 10-QSB for the quarter ended
December 31, 2000, filed on February 14, 2001;
o Current Report on Form 8-K filed August 11, 2000;
o Current Report on Form 8-K filed November 30, 2000;
o Current Report on Form 8-K filed January 5, 2001;
o Proxy Statement filed July 28, 2000.
o All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the Registrant's document referred to in (a) above;
and
o The description of our common stock contained in our
Registration Statement on Form 8-A filed with the SEC on
October 19, 1994 and Amendment No. 1 to the Registration
Statement on Form 8-A filed with the SEC on March 2, 2001 and
any amendment thereto;
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We hereby undertake to provide without charge to each person, including
any beneficial owner, to whom a copy of the prospectus has been delivered, on
the written request of any such person, a copy of any or all of the documents
referred to above which have been or may be incorporated by reference in this
prospectus, other than exhibits to such documents. Written requests for such
copies should be directed to John Klecha, Chief Financial Officer, The Singing
Machine Company, Inc., 6601 Lyons Road, Bldg. A-7, Coconut Creek, FL 33073.
Item 4. Description of Securities
- ---------------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
Item 6. Indemnification of Directors and Officers
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As a Delaware corporation, we are subject to the Delaware General
Corporation Law. Section 102(b)(7) of Delaware law enables a corporation in its
certificate of incorporation to eliminate or limit personal liability of members
of its Board of Directors for monetary damages for breach of a director's
fiduciary duty of care. Article 10 of our Certificate of Incorporation provides
that a director shall not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to us or our
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware or (iv) for any transaction from which
the director derived an improper personal benefit and contains a comparable
provision.
Section 145 of Delaware law permits a corporation organized under
Delaware law to indemnify directors and officers with respect to any matter in
which the director or officer acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the company, and with
respect to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. Article VI of our Bylaws provides that our
officers, directors, employees or agent shall be indemnified to the full extent
permitted by Delaware law. Article VI also provides that we may advance expenses
to a director if he prior to the final disposition of the action. However, if
required under Delaware law, we may require an officer or director to give us an
undertaking in advance of the final disposition that he will repay all amounts
so advanced, if it shall ultimately be determined that such officer or director
is not entitled to be indemnified under these by-laws or otherwise.
The above discussion of Delaware law and our certificate of
incorporation and bylaws is not intended to be exhaustive and is qualified in
its entirety by our certificate of incorporation, bylaws and Delaware law.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to our directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, we have
been advised that in the opinion of the Securities and Exchange Commission, this
indemnification is against public policy as expressed in the securities laws,
and is, therefore unenforceable.
Item 7. Exemption From Registration Claimed
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Not Applicable.
Item 8. Exhibits
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5.1 Opinion and Consent of English, McCaughan & O'Bryan, P.A.
10.1 Amended and Restated 1994 Management Stock Option Plan*
23.1 Consent of Weinberg & Company, P.A.*
23.2 Consent of English, McCaughan & O'Bryan, P.A. (Contained in Exhibit 5.1)
- ---------------------
* Filed herewith.
Item 9. Undertakings
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A. We hereby undertake to:
(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 of 1933;
(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 n 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 a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(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;
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Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and 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 Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 of 1933 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 against such liabilities (other than the payment by the registrant in
the successful defense of an 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Singing
Machine Company, Inc. 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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Coconut Creek, State of
Florida, on April 25, 2001.
THE SINGING MACHINE COMPANY, INC.
By: /s/ John F. Klecha
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John F. Klecha, Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Edward Steele Chairman of the Board of Directors and
- ---------------------------- Chief Executive Officer April 25, 2001
Edward Steele
/s/ John F. Klecha President, Chief Operating Officer,
- ---------------------------- Chief Financial Officer, Treasurer, April 25, 2001
John F. Klecha Secretary and Director
/s/ Josef A. Bauer Director April 25, 2001
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Josef A. Bauer
/s/ Howard Moore Director April 25, 2001
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Howard Moore
/s/ Robert Weinberg Director April 25, 2001
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Robert Weinberg
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