As filed with the Securities and Exchange Commission on September 13, 2002
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
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(State or Jurisdiction of (I.R.S. Employer
(Incorporation or organization) Identification No.)
The Singing Machine Company, Inc.
6601 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
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(Address of Principal Executive Office)
The Singing Machine Company, Inc.
Year 2001 Stock Option Plan
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(Full Title of the Plan)
John Klecha, President and Chief Operating Officer
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 Proposed
Maximum Maximum Amount
Title of Each Class of Amount Offering Aggregate of
Securities to be to be Price Per Offering Registration
Registered Registered (1) Share Price Fee
- ---------- -------------- ----- ----- ---
Common Stock (2) 21,750 $ 3.27 $ 71,122.50 $ 6.54
Common Stock (2) 60,000 $ 4.23 $ 253,800.00 $ 23.35
Common Stock (3) 1,868,250 $11.58 $ 2,163,433.50 $1,990.36
--------- ------ -------------- ---------
TOTAL 1,950,000 $2,020.25
(1) This Registration Statement also covers such indeterminate amount of
securities as may be offered or sold pursuant to the Year 2001 Stock Option
Plan to prevent dilution, pursuant to Rule 416(a) under the Securities Act
of 1933, as amended.
(2) Calculated in accordance with Rule 457 based upon the price at which
outstanding options can be exercised.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 (c) and (h) on the average high and low sale
prices of the common stock reported on the American Stock Exchange.
PART I.
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 1,950,000 shares of our common stock, which will be
awarded to eligible persons pursuant to options granted under our Year 2001
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 Year 2001 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 meets 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.
6601 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
Attn: John Klecha, President and Chief Operating Officer
(954) 596-1000
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
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/A for the year ended March 31,
2002, filed on July 23, 2002 and Annual Report on Form 10-KSB
for the year ended March 31, 2002 filed on June 29, 2002;
o Definitive Proxy Statement filed on August 3, 2002;
o Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2002 filed on August 14, 2002;
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 amendments thereto, or reports filed for the purpose of
updating such description.
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, President, Chief Operating Officer,
Chief Financial Officer, Treasurer and Secretary, 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
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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.
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
Not Applicable
ITEM 8. EXHIBITS
5.1 Opinion of Adorno & Yoss, P.A.*
10.1 Year 2001 Stock Option Plan*
23.1 Consent of Salberg &Company, P.A.*
23.2 Consent of Adorno & Yoss, P.A. (contained in Exhibit 5.1)
* Filed herewith.
ITEM 9. UNDERTAKINGS
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;
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 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.
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 September 13, 2002.
THE SIGNING MACHINE COMPANY, INC.
By: /s/ Edward Steele
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Edward Steele, Chairman and Chief
Executive 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 Chief Executive Officer September 13, 2002
- ------------------------ and Director
Edward Steele (Principal Executive Officer)
/s/ April J. Green Chief Financial Officer September 13, 2002
- ----------------------- (Principal Financial and
April J. Green Accounting Officer)
/s/ John Klecha President, Chief Operating Officer September 13, 2002
- ---------------------- Secretary and Director
John Klecha (Principal Executive Officer)
/s/ Josef A. Bauer Director September 13, 2002
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Josef A. Bauer
/s/ Howard Moore Director September 13, 2002
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Howard Moore
/s/ Robert Weinberg Director September 13, 2002
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Robert Weinberg
EXHIBIT INDEX
5.1 Opinion of Adorno & Yoss, P.A.
10.1 Year 2001 Stock Option Plan
23.1 Consent of Salberg & Company, P.A.
23.2 Consent of Adorno & Yoss, P.A. (contained in Exhibit 5.1)