As filed with the Securities and Exchange Commission on October 7, 2003
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
The Singing Machine Company, Inc.
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(Name of Small Business Issuer in Its Charter)
Delaware 5065 95-3795478
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(State or other jurisdiction (Primary Standard (IRS Employer
of incorporation or organization) Industrial Classification) Identification No.)
Robert Weinberg
Chief Executive Officer
The Singing Machine Company, Inc.
Robert Weinberg
6601 Lyons Road 6601 Lyons Road,
Building A-7 Building A-7
Coconut Creek, FL 33073 Coconut Creek, FL 33073
Telephone: (943) 596-1000 Telephone: (954) 596-1000
Facsimile: (954) 596-2000 Facsimile: (954) 596-2000
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(Address and telephone number, (Name, address and telephone
including area code of Registrant's number of agent for service)
principal executive offices)
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Approximate Date of Commencement of Proposed Sale to the Public: As soon as
practicable after the Registration Statement becomes effective.
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If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box:[X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the Registration Statement is expected to be made
pursuant to Rule 434, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price per Aggregate Offering Registration
Registered Registered Security(1) Price(1) Fee
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Common Stock(2) 1,038,962 $4.25 $4,405,198.88 $ 356.38
Common Stock(3) 561,039 $4.25 $2,384,157.50 $ 192.88
Common Stock(4) 207,791 $4.25 $ 883,111.75 $ 71.44
Common Stock(5) 311,680 $4.25 $1,324,640.00 $ 107.16
Common Stock(6) 635,842 $4.25 $2,702,328.50 $ 218.67
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Total 2,755,314 $ 947.37
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(1) Estimated solely for the purpose of determining the registration fee, in
accordance with Rule 457(C), based on the average high and low prices of
our common stock as report on the American Stock Exchange on October 2,
2003 ($4.25).
(2) Represents shares of common stock issuable upon exercise of outstanding
convertible debentures held by certain selling stockholders. Pursuant to
Rule 416, there are also being registered such additional number of shares
of common stock as may become issuable pursuant to the anti-dilution
provisions of the debentures at the conversion price of $3.85 per share.
(3) Represents shares of common stock being issuable upon exercise of
outstanding common stock purchase warrants held by certain selling
stockholders. Pursuant to Rule 416, there are also being registered such
additional number of shares of common stock as may become issuable pursuant
to the anti-dilution provisions of the common stock purchase warrants.
(4) Represents the anticipated maximum number of shares of common stock which
may be issued to the holders of the debentures in payment of interest
accruing thereon, based upon the value of the interest which the Company is
obligated to pay for a maximum period of 30 months on an aggregate
principal amount of $4,000,000 at the conversion rate of $3.85 per share.
(5) Represents a good faith estimate of the number of shares which are issuable
pursuant to certain anti-dilution provisions of the convertible debentures.
(6) Represents the number of shares issuable upon (a) conversion of the
convertible debentures, (b) exercise of the warrants, (c) as interest
payments on the debentures, (d) pursuant to the anti-dilution provisions of
the debentures, multiplied by 130%, which amount the registrant is
obligated to register for resale under its agreements with the holders of
the debentures and warrants.
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information contained in this preliminary Prospectus is not
complete and may be changed. These securities may not be sold until the
registration statement filed with the Securities and Exchange Commission is
effective. This Prospectus is not an offer to sell these securities and it is
not soliciting on offer to buy these securities in any state where the offer or
sale is not permitted.
Subject to Completion, Dated October 7, 2003
PROSPECTUS
2,755,314 Shares of Common Stock
THE SINGING MACHINE COMPANY, INC.
[GRAPHIC OMITTED]
We are registering for resale an aggregate of 2,755,314 shares of
common stock of The Singing Company, Inc. (the "Company," "us," or "we"), that
may be issued to certain of our stockholders named in this Prospectus and their
transferees.
We will not receive any proceeds from the sale of the shares, but we
will receive proceeds from the selling stockholders if they exercise their
warrants. Our common stock is quoted on the American Stock Exchange under the
symbol "SMD". On October 2, 2003, the closing sales price of our common stock,
as reported on AMEX was $4.25 per share.
The shares of common stock may be sold from time to time by the selling
stockholders in one or more transactions at fixed prices, at market prices at
the time of sale, at varying prices determined at the time of sale or at
negotiated prices. The selling stockholders and any broker-dealer who may
participate in the sale of the shares may use this Prospectus. See "Plan of
Distribution."
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 7.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is October 7, 2003
TABLE OF CONTENTS
Prospectus Summary...........................................................1
Risk Factors.................................................................2
Special Note regarding Forward-Looking Statements ...........................8
Use of Proceeds..............................................................9
Selling Stockholders.........................................................9
Plan of Distribution.........................................................12
Market Price of Common Stock.................................................14
Dividend Policy..............................................................14
Selected Financial Information and Other Data................................15
Management's Discussion and Analysis of Financial Condition and
Results of Operations.....................................................17
Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.........................................................28
Business.....................................................................29
Management...................................................................37
Executive Compensation.......................................................39
Certain Transactions.........................................................44
Principal Stockholders.......................................................45
Description of Securities....................................................46
Shares Eligible for Future Sale..............................................49
Legal Matters................................................................50
Experts......................................................................50
Where You Can Find Additional Information....................................50
Index to Consolidated Financial Statements...................................F-1
We have not authorized any dealer, sales person or other person to give you
written information other than this Prospectus or to make representations as to
matters not stated in this Prospectus. You must not rely on unauthorized
information. This Prospectus is not an offer to sell these securities or our
solicitation of your offer to buy these securities in any jurisdiction where
that would not be permitted or legal. Neither the delivery of this Prospectus
nor any sale made hereunder after the date of this Prospectus shall create an
implication that the information contained herein or the affairs of The Singing
Machine Company, Inc. have not changed since the date hereof.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there by any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
ii
PROSPECTUS SUMMARY
This Summary highlights information contained elsewhere in this
Prospectus. It does not contain all of the information that you should consider
before investing in our common shares. We encourage you to read the entire
Prospectus carefully ,including the section entitled "Risk Factors" and the
financial statements and the notes to those financial statements.
COMPANY OVERVIEW
We are engaged in the production and distribution of karaoke audio
software and electronic recording equipment. Our electronic karaoke machines and
audio software products are marketed under the Singing Machine(R), MTV(R),
Nickelodeon(R), Hard Rock Academy(R) and Motown(R) brand names. Our corporate
offices are located at 6601 Lyons Road, Building A-7, Coconut Creek, Florida
33073, and our telephone number is (954) 596-1000.
THE OFFERING
Common Stock offered by the
Selling Stockholders.............................. 2,755,314
Common Stock Outstanding
Prior to the Offering(1).......................... 8,682,596
Common Stock outstanding after the Offering(2).... 11,437,910
Use of Proceeds................................... We will not receive any
proceeds from the sale of
common stock by the selling
stockholders.
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(1) Based on the number of shares actually outstanding as of September 15,
2003. Does not include (a) 1,089,400 options which are currently
outstanding under our 1994 Amended and Restated Stock Option Plan and our
Year 2000 Stock Option Plan, and (b) an aggregate of 2,755,314 shares which
are being registered in this registration statement.
(2) Assumes the issuance of the 2,755,314 shares of our common stock which are
being registered in this registration statement.
RISK FACTORS
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You should carefully consider the following factors and other
information in this Prospectus before deciding to purchase our common stock.
RISKS RELATED TO THE COMPANY'S BUSINESS AND OPERATIONS
WE RELY ON SALES TO A LIMITED NUMBER OF KEY CUSTOMERS, WHICH ACCOUNT FOR LARGE
PORTION OF OUR NET SALES AND A REDUCTION IN ORDERS FROM ANY ONE OF THEM IS
DETRIMENTAL TO OUR BUSINESS
As a percentage of total revenues, our net sales to our five largest
customers during the fiscal period ended March 31, 2003, 2002 and 2001 were
approximately 67%, 87% and 78% respectively. In fiscal 2003, three major
customers accounted for 21%, 17% and 15% of our net sales. Although we have
long-established relationships with many of our customers, we do not have
long-term contractual arrangements with any of them. A substantial reduction in
or termination of orders from any of our largest customers could adversely
affect our business, financial condition and results of operations. In addition,
pressure by large customers seeking price reductions, financial incentives,
changes in other terms of sale or requesting that we bear the risks and the cost
of carrying inventory, such as consignment agreements, could adversely affect
our business, financial condition and results of operations. If one or more of
our major customers were to cease doing business with us, significantly reduce
the amount of their purchases from us or return substantial amounts of our
products, it could have a material adverse effect on our business, financial
condition and results of operations.
OUR INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS RAISED SUBSTANTIAL DOUBT ABOUT OUR
ABILITY TO CONTINUE AS A GOING CONCERN FOR THE FISCAL YEAR ENDED MARCH 31, 2003
We received a report dated June 24, 2003 (except for Note 9, as to
which the date is July 8, 2003 and Note 15, as to which the date is July 10,
2003) from our independent certified public accountants covering the
consolidated financial statements for our fiscal year ended March 31, 2003 that
included an explanatory paragraph which stated that the financial statements
were prepared assuming the Company would continue as a going concern. This
report stated that a default under our credit agreement with our commercial
lender raised substantial doubt about our ability to continue as a going
concern. In March 2003, our commercial lender, LaSalle Business Credit, LLC
notified us that we were in default of the minimum tangible net worth
requirement in our credit agreement.
Since June 24, 2003, the date of our audit report, we have taken steps
to improve our financial position. In August 2003, our commercial lender
expressly waived our event of default of the minimum tangible net worth
requirement under our credit agreement and agreed to extend our credit facility
until March 31, 2004.
WE CURRENTLY RELY ON OUR LICENSING AGREEMENT WITH MTV NETWORKS IS A MATERIAL
SOURCE OF REVENUE AND THIS AGREEMENT CAN BE TERMINATED AT ANY TIME
We value all of our merchandise license agreements and feel that if any
of them were to be terminated or fail to be renewed, our business, financial
condition and results of operations could be adversely affected. Our license
with MTV Networks, Inc., a division of Viacom International, Inc. ("MTV") is
particularly important to our business. We generated $30,884,344 million or
32.3% of our net sales from products sold under the MTV license in fiscal 2003.
However, management believes that our company has developed a strong brand name
in the karaoke industry and that it will be able to continue to develop and grow
its business, even if the MTV license agreement did not exist.
2
WE MAY HAVE DIFFICULTY MANAGING OUR INVENTORY LEVELS
Because of our reliance on manufacturers in Asia for our production of
karaoke machines, our production lead times are relatively long. Therefore, we
must commit to production in advance of customers orders. If we fail to forecast
customers or consumer demand accurately we may encounter difficulties in filling
customer orders or liquidating excess inventories, or may find that customers
are canceling orders or returning products. Distribution difficulties may have
an adverse effect on our business by increasing the amount of inventory and the
cost of storing inventory. As of June 30, 2003, we had approximately $26 million
in inventory. We are attempting to liquidate this excess inventory during fiscal
2004. We believe that this entire inventory is highly marketable and saleable;
however, there can be no assurances that we will be able to liquidate this
inventory during our upcoming fiscal year.
WE ARE NAMED AS A DEFENDANT IN SEVERAL CLASS ACTION LAWSUITS
At the present time, we are involved in several class action lawsuits
and a shareholders derivative lawsuit. While the specific factual allegations
vary slightly in each case, the complaints generally allege that the Company and
certain of its officers falsely represented the Company's financial results
during the relevant class periods. We believe the allegations in these cases are
without merit and we intend to vigorously defend these actions.
While we believe that the allegations in the complaint are without
merit, an unfavorable resolution of pending litigation could have a material
adverse effect on our financial condition. Litigation may result in substantial
costs and expenses and significantly divert the attention of the Company's
management regardless of the outcome. There can be no assurance that the Company
will be able to achieve a favorable settlement of pending litigation or obtain a
favorable resolution of litigation if it is not settled. In addition, current
litigation could lead to increased costs or interruptions of normal business
operations of the Company.
OUR INABILITY TO COMPETE AND MAINTAIN OUR NICHE IN THE ENTERTAINMENT INDUSTRY
COULD HURT OUR BUSINESS
The business in which we are engaged is highly competitive. Our major
competitors for karaoke machines and related products are Craig, Curtis, Grand
Prix and Memorex. We believe that competition for karaoke machines is based
primarily on price, product features, reputation, delivery times, and customer
support. Our primary competitors for producing karaoke music are Pocket Songs,
Sybersound, UAV and Sound Choice. We believe that competition for karaoke music
is based primarily on popularity of song titles, price, reputation, and delivery
times. To the extent that we lower prices for to attempt to enhance or retain
market share, we may adversely impact our operating margins. Conversely, if we
opt not to match competitor's price reductions we may lose market share,
resulting in decreased volume and revenue.
We believe that our new product introductions and enhancements of
existing products are material factors for our continued growth and
profitability. In fiscal 2003, we produced new lines of karaoke machines.
However, many of our competitors have significantly greater financial, marketing
and operating resources than we have. No assurance can be given that we will
continue to be successful in introducing new products or further enhancing our
existing products. In addition, we must compete with all the other existing
forms of entertainment including, but not limited to: motion pictures, video
arcade games, home video games, theme parks, nightclubs, television and
prerecorded tapes, CD's and video cassettes.
3
WE ARE SUBJECT TO SEASONALITY, WHICH IS AFFECTED BY VARIOUS ECONOMIC CONDITIONS
AND CHANGES RESULTING IN FLUCTUATIONS IN QUARTERLY RESULTS
Sales of consumer electronics and toy products in the retail channel
are highly seasonal, causing the substantial majority of our sales to occur
during the second quarter ended September 30 and the third quarter ended
December 31. Sales in our second and third quarter, combined, accounted for
approximately 85.6% of net sales in fiscal 2003, 81% of net sales in fiscal 2002
and 75% of net sales in fiscal 2001.
The seasonal pattern of sales in the retail channel requires
significant use of our working capital to manufacture and carry inventory in
anticipation of the holiday season, as well as early and accurate forecasting of
holiday sales. Failure to predict accurately and respond appropriately to
consumer demand on a timely basis to meet seasonal fluctuations, or any
disruption of consumer buying habits during their key period, would harm our
business and operating results. In fiscal 2003, we overestimated the demand for
our product and held $26 million of inventory as of June 30, 2003. Our increased
inventory levels led to a shortage in our available working capital and our
liquidity problems. Additional factors that can cause our sales and operating
results to vary significantly from period to period include, among others, the
mix of products, fluctuating market demand, price competition, new product
introductions by competitors, fluctuations in foreign currency exchange rates,
disruptions in delivery of components, political instability, general economic
conditions, and the other considerations described in this section entitled Risk
Factors.
WE MAY HAVE SIGNIFICANT RETURNS, MARKDOWNS AND PURCHASE ORDER CANCELLATIONS
As is customary in the consumer electronics industry, we have, on
occasion, (i) permitted certain customers to return slow-moving items for
credit, (ii) provided price protection to certain customers by making price
reductions effective as to certain products then held by customers in inventory
and (ii) accepted customer cancellations of purchase orders issued to the
Company. We expect that these practices will continue to be required to make
such accommodations in the future. Any significant increase in the amount of
returns, markdowns or purchaser order cancellations could have a material
adverse effect on our results of operations.
OUR PRODUCTS ARE SHIPPED FROM CHINA AND ANY DISRUPTION OF SHIPPING COULD HARM
OUR BUSINESS
We rely principally on four contract ocean carriers to ship virtually
all of the products that we import to our warehouse facility in Compton,
California. Retailers that take delivery of our products in China rely on a
variety of carriers to import those products. Any disruptions in shipping,
whether in California or China, caused by labor strikes, other labor disputes,
terrorism, and international incidents or otherwise could significantly harm our
business and reputation.
WE USE OUTSIDE FACTORIES LOCATED IN THE PEOPLE'S REPUBLIC OF CHINA TO
MANUFACTURE ALL OF OUR ELECTRONIC PRODUCTS
We contract with six independent factories in the People's Republic of
China to manufacture all of our electronic products. Our arrangements with these
factories are subject to the risks of doing business abroad, such as import
duties, trade restrictions, work stoppages, and foreign currency fluctuations,
limitations on the repatriation of earnings, political instability, and other
factors, which could have an adverse impact on our business. Furthermore, we
have limited control over the manufacturing processes themselves. As a result,
any difficulties encountered by the third-party manufacturers that result in
product defects, production delays, cost overruns or the inability to fulfill
orders on a timely basis could adversely affect our business, financial
condition and results of operations. We believe that the loss of any one or more
of our manufacturers would not have a long-term material adverse effect on us
because other manufacturers with whom we do business would be able to increase
production to fulfill our requirements. However, the loss of certain of our
manufacturers, could, in the short-term, adversely affect our business until
alternative supply arrangements were secured.
4
WE DEPEND ON THIRD PARTY SUPPLIERS TO PRODUCE THE PARTS AND MATERIALS USED TO
MANUFACTURE AND PRODUCE OUR KARAOKE MACHINES AND RELATED PRODUCTS, AND IF WE
CANNOT OBTAIN SUPPLIERS AS NEEDED, OUR OPERATIONS WILL BE SEVERELY DAMAGED
Our growth and ability to meet customer demand depends in part on our
capability to obtain timely deliveries of karaoke machines and our electronic
products. We rely on third party suppliers to produce the parts and materials
used to manufacture and produce our karaoke machines and related products. If
our suppliers are unable to provide our factories with the parts and supplies,
the factories will be unable to produce our products. We cannot guarantee that
we will be able to purchase the parts we need at reasonable prices or in a
timely fashion. In the last several years, there have been shortages of certain
chips that we use in our karaoke machines. We, however, have anticipated this
shortage and have made commitments to the factories to purchase chips in
advance. If we are unable to anticipate any shortages of parts and materials in
the future, we may experience severe production problems, which would impact our
sales.
CONSUMER DISCRETIONARY SPENDING MAY AFFECT KARAOKE PURCHASE AND IS AFFECTED BY
VARIOUS ECONOMIC CONDITIONS AND CHANGES
Our business and financial performance may be damaged more than most
companies by adverse financial conditions affecting our business or by a general
weakening of the economy. Purchases of karaoke machines and music are considered
discretionary for consumers. Our success will therefore be influenced by a
number of economic factors affecting discretionary and consumer spending, such
as employment levels, business, interest rates, and taxation rates, all of which
are not under our control. Adverse economic changes affecting these factors may
restrict consumer spending and thereby adversely affect our growth and
profitability.
WE MAY BE INFRINGING UPON THE COPYRIGHTS OF THIRD PARTIES
Each song in our catalog is licensed to us for specific uses. Because
of the numerous variations in each of our licenses for copyrighted music, there
can be no assurance that we have complied with scope of each of our licenses and
that our suppliers have complied with these licenses. Additionally, third
parties over whom we exercise no control may use our sound recordings in such a
way that is contrary to our license agreement and by violating our license
agreement we may be liable for contributory copyright infringement. Any
infringement claims may have a negative effect on our ability to sell products.
WE HAVE SIGNIFICANT RELIANCE ON LARGE RETAILERS, WHICH ARE SUBJECT TO CHANGES IN
THE ECONOMY
We sell products to retailers, including department stores, lifestyle
merchants, direct mail retailers, which are catalogs and showrooms, national
chains, specialty stores, and warehouse clubs. Certain of such retailers have
engaged in leveraged buyouts or transactions in which they incurred a
significant amount of debt, and some are currently operating under the
protection of bankruptcy laws. Despite the difficulties experienced by retailers
in recent years, we have not suffered significant credit losses to date.
Deterioration in the financial condition of our customers could have a material
adverse effect on our future profitability.
5
OUR BUSINESS OPERATIONS COULD BE SIGNIFICANTLY DISRUPTED IF WE LOSE MEMBERS OF
OUR MANAGEMENT TEAM
Our success depends to a significant degree upon the continued
contributions of our executive officers, both individually and as a group.
Although we have entered into employment contracts with Yi Ping Chan, our Chief
Operating Officer, April Green, our Chief Financial Officer and Jack Dromgold,
our Executive Vice President of Sales and Marketing, the loss of the services of
any of these individuals could prevent us from executing our business strategy.
We also intend on entering into an employment agreement with Robert Weinberg,
our new Chief Executive Officer. We cannot assure you that we will be able to
find appropriate replacements for Mr. Weinberg, Mr. Chan, Ms. Green or Mr.
Dromgold, if the need should arise, and any loss or interruption of their
services could adversely affect our business, financial condition and results of
operations.
THE MARKET PRICE OF OUR COMMON STOCK MAY BE VOLATILE WHICH MAY CAUSE INVESTORS
TO LOSE ALL OR A PORTION OF THEIR INVESTMENT
Within the past 12 months from October 2, 2002 through October 2, 2003,
our common stock has traded between a high of $13.49 and a low of $2.70. The
market price of shares of our common stock has been and may continue to be
highly volatile. The market prices of our common stock may be affected by many
factors, including:
- our ability to resell our excess inventory held as of the current date;
- unpredictable consumer preferences and spending trends;
- the actions of our customers and competitors (including new product
line announcements and introduction;
- changes in our pricing policies, the pricing policies of our
competitors and general pricing trends in the consumer and electronics
and toy markets;
- regulations affecting our manufacturing operations in China;
- other factors affecting the entertainment and consumer electronics
industries in general; and
- sales of our common stock into the public market.
In addition, the stock market periodically has experienced significant
price and volume fluctuations, which may have been unrelated to the operating
performance of particular companies.
OUR OBLIGATION TO MAKE SEVERANCE PAYMENTS COULD PREVENT OR DELAY TAKEOVERS
Our employment agreements with April Green, Yi Ping Chan and Jack
Dromgold require us, under certain conditions, to make substantial severance
payments to them if they resign after a change of control. These provisions
could delay or impede a merger, tender, offer or other transaction resulting in
a change in control of the Company, even if such a transaction would have
significant benefits to our shareholders. As a result, these provisions could
limit the price that certain investors might be willing to pay in the future for
shares of our common stock.
WE MAY BE SUBJECT TO CLAIMS FROM THIRD PARTIES FOR UNAUTHORIZED USE OF THEIR
PROPRIETARY TECHNOLOGY, COPYRIGHTS OR TRADE SECRETS
We believe that we independently developed the technology used in our
electronic and audio software products and that it does not infringe on the
proprietary rights, copyrights or trade secrets of others. However, we cannot
assure you that we have not infringed on the proprietary rights of third parties
or those third parties will not make infringement violation claims against us.
Any infringement claims may have a negative effect on the ability of outside
factories to manufacture our products.
6
A DISRUPTION IN THE OPERATION OF OUR WAREHOUSE CENTERS IN CALIFORNIA AND FLORIDA
WOULD IMPACT OUR ABILITY TO DELIVER MERCHANDISE TO OUR STORES, WHICH COULD
ADVERSELY IMPACT OUR REVENUES AND HARM OUR BUSINESS AND FINANCIAL RESULTS
A significant amount of our merchandise is shipped to our customers
from one of our three warehouses, which are located in Compton, California,
Rancho Dominguez, California and Coconut Creek, Florida. Events such as fire or
other catastrophic events, any malfunction or disruption of our centralized
information systems or shipping problems may result in delays or disruptions in
the timely distribution of merchandise to our customers, which could adversely
impact our revenues and our business and financial results.
OUR BUSINESS OPERATIONS COULD BE DISRUPTED IF THERE ARE LABOR PROBLEMS ON THE
WEST COAST
During fiscal 2003, approximately 48% of our sales were domestic sales,
which were made from our warehouses in California and Florida. During the third
quarter of fiscal 2003, the dock strike on the West Coast affected sales of two
of our karaoke products and we estimate that we lost between $3 and $5 million
in orders because we couldn't get the containers of these products off the pier.
If another strike or work slow-down were to occur and we do not have a
sufficient level of inventory, a strike or work slow-down would result in
increased costs to our company and may reduce our profitability. However, we
expect that this risk will be less significant in the future. As part of our new
business strategy for fiscal 2004, we intend on shipping more products directly
from Hong Kong.
YOUR INVESTMENT MAY BE DILUTED
If additional funds are raised through the issuance of equity
securities, your percentage ownership in our equity will be reduced. Also, you
may experience additional dilution in net book value per share, and these equity
securities may have rights, preferences, or privileges senior to those of yours.
RISKS ASSOCIATED WITH OUR CAPITAL STRUCTURE
OUR OUTSTANDING CONVERTIBLE SECURITIES MAY DEPRESS OUR STOCK PRICE
As of September 15, 2003, there were outstanding stock options to
purchase an aggregate of 1,089,400 shares of common stock at exercise prices
ranging from $2.04 to $14.00 per share, not all of which are immediately
exercisable. The weighted average exercise price of the outstanding stock
options is approximately $5.46 per share. As of September 15, 2003, there were
outstanding immediately exercisable warrants to purchase an aggregate of 561,039
shares of our common stock, which warrants are covered by this Prospectus. In
addition, we have issued $4,000,000 of convertible debentures, which are
initially convertible into an aggregate of 1,038,962 shares of common stock,
which shares are covered by this Prospectus. To the extent that the
aforementioned convertible securities are exercised or converted, dilution to
our stockholders will occur. Moreover, the terms upon which we will be able to
obtain additional equity capital may be adversely affected, since the holders of
outstanding options, warrants and debentures can be expected to exercise or
convert them at a time when we would, in all likelihood, be able to obtain any
needed capital on terms more favorable to us than the exercise and conversion
terms provided by the outstanding options, warrants and convertible debentures.
7
FUTURE SALES OF OUR COMMON STOCK HELD BY CURRENT STOCKHOLDERS MAY DEPRESS OUR
STOCK PRICE
As of September 15, 2003, there were 8,682,596 shares of our common
stock outstanding. We have filed three registration statements registering an
aggregate 6,549,564 shares of our common stock (this registration statement to
register the resale of 2,755,314 shares, a registration statement on Form S-8 to
register 1,844,250 shares underlying options granted under our 1994 Stock Option
Plan and a registration statement on Form S-8 to register 1,950,000 shares of
our common stock underlying options granted under our Year 2001 Stock Option
Plan). The market price of our common stock could drop due to the sale of large
number of shares of our common stock, such as the shares sold pursuant to the
registration statements or under Rule 144, or the perception that these sales
could occur.
ADVERSE EFFECT ON OUR STOCK PRICE FROM FUTURE ISSUANCES OF ADDITIONAL SHARES
Our Certificate of Incorporation authorizes the issuance of 18,900,000
million shares of common stock. As of September 15, 2003, we had 8,682,596
shares of common stock issued and outstanding and an aggregate of 1,089,400
outstanding options, 561,039 warrants and 1,038,962 shares issuable upon the
conversion of the debentures. As such, our Board of Directors has the power,
without stockholder approval, to issue up to 7,228,003 shares of common stock.
Any issuance of additional shares of common stock, whether by us to new
stockholders or the exercise of outstanding warrants or options, may result in a
reduction of the book value or market price of our outstanding common stock.
Issuance of additional shares will reduce the proportionate ownership and voting
power of our then existing stockholders.
PROVISIONS IN OUR CHARTER DOCUMENTS AND DELAWARE LAW MAY MAKE IT DIFFICULT FOR A
THIRD PARTY TO ACQUIRE OUR COMPANY AND COULD DEPRESS THE PRICE OF OUR COMMON
STOCK
Delaware law and our certificate of incorporation and bylaws contain
provisions that could delay, defer or prevent a change in control of our company
or a change in our management. These provisions could also discourage proxy
contests and make it more difficult for you and other stockholders to elect
directors and take other corporate actions. These provisions of our restated
certificate of incorporation include: authorizing our board of directors to
issue additional preferred stock, limiting the persons who may call special
meetings of stockholders, and establishing advance notice requirements for
nominations for election to our board of directors or for proposing matters that
can be acted on by stockholders at stockholder meetings.
We are also subject to certain provisions of Delaware law that could
delay, deter or prevent us from entering into an acquisition, including the
Delaware General Corporation Law, which prohibits a Delaware corporation from
engaging in a business combination with an interested stockholder unless
specific conditions are met. The existence of these provisions could limit the
price that investors are willing to pay in the future for shares of our common
stock and may deprive you of an opportunity to sell your shares at a premium
over prevailing prices.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
-------------------------------------------------
This Prospectus, including the documents that we incorporate by
reference, contains forward-looking statements within the meaning of Section 27A
of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Any statements about our expectations, beliefs,
plans, objectives, assumptions or future events or performance are not
historical facts and may be forward-looking. These statements are often, but not
always, made through the use of words or phrases such as "anticipate,"
"estimate," "plans," "projects," "continuing," "ongoing," "expects," "management
believes," "we believe," "we intend" and similar words or phrases. Accordingly,
these statements involve estimates, assumptions and uncertainties, which could
cause actual results to differ materially from those expressed in them. Any
forward-looking statements are qualified in their entirety by reference to the
factors discussed in this Prospectus or incorporated by reference.
8
Because the factors discussed in this Prospectus or incorporated by
reference could cause actual results or outcomes to differ materially from those
expressed in any forward-looking statements made by us or on behalf of our
company, you should not place undue reliance on any such forward-looking
statements. Further, any forward-looking statement speaks only as of the date on
which it is made, and we undertake no obligation to update any forward-looking
statement or statements to reflect events or circumstances after the date on
which such statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time, and it is not possible for us to
predict which will arise. In addition, we cannot assess the impact of each
factor on our business or the extent to which any factor, or combination of
factors, may cause actual results to differ materially from those contained in
any forward-looking statements.
USE OF PROCEEDS
---------------
We will not receive any proceeds from the sale of shares by the selling
stockholders. Although we may receive proceeds if the warrants are exercised,
these proceeds, if any, will be used for working capital purposes or any other
purpose approved by the Board of Directors.
SELLING STOCKHOLDERS
--------------------
The following table sets forth information as of September 15, 2003
with respect to the beneficial ownership of our common stock both before and
immediately following the offering by each of the selling stockholders.
Calculation of the percent of outstanding shares owned is based on
shares of our common stock issued and outstanding as of September 15, 2003.
Beneficial ownership is determined in accordance with Rule 13d-3 promulgated by
the Securities and Exchange Commission, and generally includes voting or
investment power with respect to securities. Except as indicated in the
footnotes to the table, we believe each holder possesses sole voting and
investment power with respect to all of the shares of common stock owned by that
holder, subject to community property laws where applicable. In computing the
number of shares beneficially owned by a holder and the percentage ownership of
that holder, shares of common stock underlying options, warrants, debentures,
notes or preferred stock by that holder that are currently exercisable or
convertible or are exercisable or convertible within 60 days after the date of
the table are deemed outstanding. Those shares, however, are not deemed
outstanding for the purpose of computing the percentage ownership of any other
person or group.
The terms of the debentures and warrants owned by Omicron Master Trust,
SF Capital Partners, Ltd, Bristol Investment Fund, Ltd., Ascend Offshore Fund,
Ltd., Ascend Partners, LP and Ascend Partners Sapient LP prohibit conversion of
those debentures or exercise of those warrants to the extent that a conversion
of those debentures would result in the holder, together with its affiliates,
beneficially owning in excess of 4.99% of our outstanding shares of its common
stock, and to the extent that exercise of the warrants would result in the
holder, together with its affiliates, beneficially owning in excess of 4.99% of
our outstanding shares of common stock. A holder may waive the 4.99% limitation
upon 60 days prior written notice to us. Also, these limitations do not preclude
a holder from converting or exercising a debenture or warrant and selling shares
underlying that debenture or warrant in stages over time where each stage does
not cause the holder and its affiliates to beneficially own shares in excess of
the limitation amounts. In light of the limitations contained in the debentures
and warrants, the number of shares shown in the table as beneficially owned by
each holder of those debentures and warrants prior to this offering has been
limited to 4.99% of the share of our common stock outstanding as of the date of
the table. However, the number of shares being offered by each holder under this
9
Prospectus in excess of the amount of shares issuable to that holder without
such holder's waiver of the conversion and exercise limitations discussed above.
SECURITIES OWNED SECURITIES AFTER OFFERING
PRIOR TO OFFERING -------------------------
----------------- SHARES OF
COMMON STOCK NUMBER OF
BEING OFFERED SHARES PERCENT OF
NAME OF SHARES OF PERCENT OF UNDER THIS COMMON COMMON
SELLING STOCKHOLDER STOCK(1) STOCK PROSPECTUS(2) STOCK STOCK
------------------- --------- ---------- ------------- --------- ----------
Omicron Master Trust 434,034 4.99 1,637,662(3) 0 *
SF Capital Partners, Ltd. 187,013 2.15 327,521(4) 0 *
Bristol Investment Fund, Ltd. 112,208 1.29 196,520(5) 0 *
Ascend Offshore Fund, Ltd. 178,785 2.05 313,122(6) 0 *
Ascend Partners Sapient, LP 61,266 * 107,301(7) 0 *
Ascend Partners, LP 21,768 * 38,124(8) 0 *
Roth Capital Partners, LLC 103,896 1.18 135,064(9) 0 *
----------
(1) The debentures and warrants contractually limit each selling stockholder's
right to convert the debentures or exercise of the warrants, as the case
may be, to the extent such selling stockholder's beneficial ownership
exceeds 4.99% of the Company's then issued and outstanding shares of common
stock. Represents shares of common stock issuable upon conversion of the
debentures and exercise of the warrants, which the holders have the right
to acquire within sixty (60) days of September 15, 2003.
(2) Listed shares represent shares issuable upon conversion of the debentures,
exercise of the warrants and shares which we may issue as payment of
interest on debentures or pursuant to certain anti-dilution provisions of
the debentures (collectively, the "Registrable Securities"). Also includes
an additional 30% of the Registrable Securities, which we are required to
register pursuant to a registration rights agreement.
(3) Shares offered pursuant to this Prospectus consist of 649,351 shares
issuable upon conversion of the debentures; 285,714 shares issuable upon
exercise of warrants; up to 129,870 shares which we may issued as interest
payable on the debentures; 194,805 shares we may issue under the
anti-dilution provisions of the debentures and 377,922 shares, an
additional 30% of the registrable securities. Omicron Capital, L.P., a
Delaware limited partnership ("Omicron Capital") serves as investment
manager to Omicron Master Trust, a trust formed under the laws of Bermuda
("Omicron"). Omicron Capital, Inc., a Delaware corporation ("OCI") serves
as general partner of Omicron Capital and Winchester Global Trust Company
Limited ("Winchester") serves as the trustee of Omicron. By reason of such
relationships, Omicron Capital and OCI may be deemed to share dispositive
power of the shares of our common stock owned by Omicron and Winchester may
be deemed to share voting and dispositive power over the shares of our
common stock owned by Omicron. Omicron Capital, OCI and Winchester Capital
has delegated authority from the board of directors of Winchester regarding
the portfolio management decisions with respect to the shares of common
stock owned by Omnicron and as of September 15, 2003, Mr. Oliver H. Morali
and Mr. Bruce T. Bernstein, officers of OCI, have delegated authority from
the board of directors of OCI regarding the portfolio management decisions
of Omicron Capital with respect to the shares of common stock owned by
Omicron. By reason of such delegated authority, Merssrs. Morali and
Bernstein disclaim beneficial ownership of such shares of our common stock
and neither of such persons has any legal right to maintain such power with
respect to shares of our common stock offered by Omicron, as those terms as
used for purposes of the Securities Exchange Act of 1934, as amended.
(4) Shares offered pursuant to this Prospectus consist of 129,870 shares
issuable upon conversion of the debentures; 57,143 shares issuable upon
exercise of warrants, up to 25,974 shares which we may issued as interest
payable on the debentures, 38,952 shares we may issue under the
anti-dilution provisions of the debentures and 75,582 shares, an additional
30% of the Registrable Securities.
(5) Shares offered pursuant to this Prospectus consist of 77,922 shares
issuable upon conversion of the debentures; 34,286 shares issuable upon
exercise of warrants, up to 15,584 shares which we may issued as interest
payable on the
10
debentures, 23,377 shares we may issue under the anti-dilution provisions of the
debentures and 45,351 shares, an additional 30% of the Registrable Securities.
(6) Shares offered pursuant to this Prospectus consist of 124,156 shares
issuable upon conversion of the debentures; 54,629 shares issuable upon
exercise of warrants, up to 24,831 shares which we may issued as interest
payable on the debentures, 37,247 shares we may issue under the
anti-dilution provisions of the debentures and 72,259 shares, an additional
30% of the Registrable Securities.
(7) Shares offered pursuant to this Prospectus consist of 42,546 shares
issuable upon conversion of the debentures; 18,720 shares issuable upon
exercise of warrants, up to 8,509 shares which we may issued as interest
payable on the debentures, 12,764 shares we may issue under the
anti-dilution provisions of the debentures and 24,672 shares, an additional
30% of the Registrable Securities.
(8) Shares offered pursuant to this Prospectus consist of 15,117 shares
issuable upon conversion of the debentures; 6,651 shares issuable upon
exercise of warrants, up to 3,023 shares which we may issued as interest
payable on the debentures, 4,535 shares we may issue under the
anti-dilution provisions of the debentures and 8,789 shares, an additional
30% of the Registrable Securities..
(9) Shares offered pursuant to this Prospectus consist of 103,896 shares
issuable upon exercise of warrants and 31,168, an additional 30% of the
Registrable Securities.
Because the selling stockholders may sell all or some portion of the
shares of common stock beneficially owned by them, only an estimate (assuming
the selling stockholders sell all of the shares offered hereby) can be given as
to the number of shares of common stock that will be beneficially owned by the
selling stockholders after this offering. In addition, any selling stockholder
may have sold, transferred or otherwise disposed or, or may sell, transfer or
otherwise dispose of, at any time or from time to time since the dates on which
they provided the information regarding the shares beneficially owned by them,
all or a portion of the shares beneficially owned by them in transactions exempt
from the registration requirements of the Securities Act of 1933.
CIRCUMSTANCES UNDER WHICH SELLING STOCKHOLDERS ACQUIRED SECURITIES
Set forth below is a summary of the circumstances that led to the
issuance to the listed sellng stockholders of shares of our common stock and the
securities, which are exercisable or convertible into shares of our common
stock.
PRIVATE PLACEMENT
On August 20, 2003, we entered into a Securities Purchase Agreement
("Purchase Agreement") with Omicron Master Trust, SF Capital Partners Ltd.,
Bristol Investment Fund, Ltd., Ascend Offshore Fund, Ltd., Ascend Sapient
Partners, Ltd. and Ascend Partners, LP., for the sale to these investors of 8%
debentures, convertible into shares of our common stock at a conversion price
equal to $3.85 per share, for an aggregate amount of $4 million. We closed this
offering on September 8, 2003. The investors also each received a warrant to
purchase up to, in the aggregate 457,143 shares of our common stock with an
exercise price equal to $4.025 per share.
The debentures accrue interest at the rate of 8% per annum, and they
provide for interest only payments on a quarterly basis, at our option, in cash
or in shares of common stock. In order to use shares of our common stock to make
the interest payments, we must meet certain requirements specified in the
debentures. The debentures mature on February 20, 2006. If certain conditions
are met, we have the right, but not the obligation to redeem the debentures at
100% of their face value, plus accrued interest. The warrants are exercisable
for a period of three years from the date of issuance until September 7, 2006
and the initial exercise price is $4.025 per share. The conversion price of the
debentures and the exercise price of the warrants are subject to adjustment in
the event we issue additional shares of our common stock or securities
11
convertible into shares of our common stock at a price per share of common stock
less than the conversion price or exercise price on the basis of a weighted
average formula. In addition, the conversion price of the debentures and
exercise price of the warrants are subject to adjustment at any time as the
result of any subdivision, stock split, combination of shares or capitalization.
We will account for this transaction in accordance with the Emerging
Issues Task Force Consensus on Issue 00-27 ("EITF 00-27"). The fair value of the
stock purchase warrants, as determined by a third party, will be allocated from
the proceeds of the debt issuance and recorded as a debt discount to be
amortized over the life of the debt to interest expense. The Company will then
calculate the effective conversion price of the debt to determine whether any
beneficial conversion feature exists. The results of the application of EITF
00-27 could have a material impact on our financial results.
The investors and Roth Capital Partners, LLC ("Roth Capital"), the
placement agent in this transaction ("Roth Capital"), were also given certain
registration rights in a registration rights agreement with the Company. We
agreed to register:
- an aggregate of 1,038,962 shares issuable upon conversion of
the convertible debentures,
- an aggregate of 561,039 shares issuable upon exercise of
warrants,
- an aggregate of 207,791 shares issuable as interest payments
on the debentures;
- an aggregate of 311,680 shares of common stock issuable
pursuant to the weighted average anti-dilution provisions of
the debentures.
All of these shares are collectively referred to as the "Registrable
Securities." In addition, we agreed that we would register 130% of the
Registrable Securities. As such, we are registering an additional 635,842
shares. In total, we are registering 2,755,314 shares for resale by the selling
stockholders.
The investors were granted a right of first refusal to participate in
our future offerings of our common stock or equivalent securities for a period
of one year until September 8, 2004. The investors will have the right to
participate in an any such financing in an amount equal to the greater of 50% of
the financing offered to the third party and/or the principal amount of the
debentures. Furthermore, the Purchase Agreement prevents us from issuing or
selling any capital stock or capital stock equivalents for a period of 90 days
after the effective date of this registration statement and from entering into
certain types of variable rate transactions until February 20, 2006.
In connection with this financing, we paid Roth Capital, as placement
agent, cash compensation of 5.5% of the proceeds raised in this offering and
granted it a warrant to purchase 103,896 shares of our common stock at an
exercise price of $4.025 per share. We also agreed to register the resale of the
shares underlying the warrant issued to Roth.
PLAN OF DISTRIBUTION
--------------------
The selling stockholders and any of their pledgees, assignees,
transferees, donees and successors-in-interest may, from time to time, sell any
or all of their shares of common stock on any stock exchange, market or trading
facility on which the shares are traded or in private transactions. These sales
may be at fixed or negotiated prices. The selling stockholders may use any one
or more of the following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell
the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
12
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o settlement of short sales;
o broker-dealers may agree with the selling stockholders to sell
a specified number of such shares at a stipulated price per
share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this Prospectus. Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved. Broker-dealers may
agree to sell a specified number of such shares at a stipulated price per share,
and, to the extent such broker-dealer is unable to do so acting as agent for us
or a selling shareholder, to purchase as principal any unsold shares at the
price required to fulfill the broker-dealer commitment. Broker-dealers who
acquire shares as principal may thereafter resell such shares from time to time
in transactions, which may involve block transactions and sales to and through
other broker-dealers, including transactions of the nature described above, in
the over-the-counter markets or otherwise at pries and on terms then prevailing
at the time of sale, at prices than related to the then-current market price or
in negotiated transactions. In connection with such resales, broker-dealers may
pay to or receive from the purchasers such shares commissions as described
above.
The selling stockholder may from time to time pledge or grant a
security interest in some or all of the shares or common stock or warrants owned
by them and, if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell the shares of common stock
from time to time under this Prospectus, or under an amendment to this
Prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act of 1933 amending the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this
Prospectus.
The selling stockholders also may transfer the shares of common stock
in other circumstances, in which case the transferees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this Prospectus.
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The selling stockholders have
informed the Company that none of them have any agreement or understanding,
directly or indirectly, with any person to distribute the common stock.
The Company is required to pay all fees and expenses incurred by the
Company incident to the registration of the shares. The Company has agreed to
indemnify the selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
13
MARKET PRICES OF COMMON STOCK
-----------------------------
Our common stock currently trades on the American Stock Exchange under
the symbol "SMD." We began trading on the AMEX on March 8, 2001. From January
26, 1996 through March 7, 2001, we traded on the National Association of
Securities Dealers, Inc.'s OTC Bulletin Board under the symbol "SING". Set forth
below is the range of high and low information for our common stock as traded on
the American Stock Exchange from March 8, 2001 through March 31, 2003, as
reported by Commodity Systems, Inc. This information regarding trading on AMEX
represents prices between dealers and does not reflect retail mark-up or
markdown or commissions, and may not necessarily represent actual market
transactions. This information contained in this table has been restated to give
effect to our 3-for-2 stock split to stockholders of record on March 4, 2002.
FISCAL PERIOD HIGH LOW
------------- ---- ---
2003:
First quarter (April 1 - June 30, 2002) $16.89 $12.06
Second quarter (July 1 - September 30, 2002 12.74 8.05
Third quarter (October 1 - December 31, 2002) 13.49 8.50
Fourth quarter (January 1 - March 31, 2003) 9.19 5.30
2002:
First Quarter (April 1 - June 30, 2001) $ 4.45 $ 2.90
Second Quarter (July 1 - September 30, 2001) 5.02 3.70
Third Quarter (October 1 - December 31, 2001) 16.19 4.30
Fourth Quarter (January 1 - March 31, 2002) 17.80 12.53
As of September 15, 2003, there were approximately 311 record holders
of our outstanding common stock. On March 14, 2002, the Company affected a
3-for-2 stock split for all stockholders of record on March 4, 2002.
DIVIDEND POLICY
---------------
We do not anticipate the declaration or payment of any dividends in the
foreseeable future. The Company has never declared or paid cash dividends on its
common stock and the Company's Board of Directors intends to continue its policy
for the foreseeable future. Furthermore, the Company's credit facility with
LaSalle Business Credit, LLC., restricts us from paying any dividends to our
shareholders, unless we obtain prior written consent from LaSalle. Future
dividend policy will depend upon the Company's earnings, financial condition,
contractual restrictions and other factors considered relevant by the Company's
Board of Directors and will be subject to limitations imposed under Delaware
law.
14
SELECTED FINANCIAL INFORMATION AND OTHER DATA
---------------------------------------------
The selected financial information set forth below is derived from, and
should be read in conjunction with, the more detailed financial statements
(including the notes thereto) appearing elsewhere in this Prospectus. See
"Consolidated Financial Statements."
Income Statement Items
----------------------
THREE MONTHS ENDED
YEAR ENDED MARCH 31, JUNE 30 (UNAUDITED)
2003 2002* 2001* 2000 1999 2003 2002*
------------------------------------------------- -----------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
Net Sales 95,614 62,476 34,875 19,032 9,548 7,628 4,292
Cost of Sales 72,329 40,853 22,159 13,727 7,029 5,902 2,990
Total Operating 21,671 13,388 7,689 3,779 1,545 3,860 2,639
Expenses
Earnings (Loss)
From Operations 1,614 8,235 5,028 1,526 974 (2,134) (1,333)
Net Other
(Expenses) Income (198) (51) (840) 948 220 (181) 24
Provision for Income Tax 199 1,895 492 160 170 2,315 1,309
Net Earnings (Loss) 1,218 6,289 3,696 738 924 (2,317) (1,427)
Net Earnings (Loss) per common
share basic .15 .88 .59 .23 .37 (.28) (.18)
Net Earnings (Loss) per common
share diluted .14 .79 .50 .19 .36 (.28) (.18)
Shares used in computing net
earnings (loss) per common
share - basic 8,114 7,159 6,292 2,726 2,475 8,278 8,061
Shares used in computing net
earnings (loss) per common
share - diluted 8,931 7,943 7,457 3,342 2,592 8,278 8,061
----------
*As Restated
Balance Sheet Items
-------------------
THEE MONTHS
YEAR ENDED MARCH 31 ENDED JUNE 30
2003 2002* 2001* 2000 1999 1 2003 2002
------------------------------------------------- -----------------
(IN THOUSANDS) (UNAUDITED)
Cash (including restricted cash) 268 5,520 1,016 379 49 86 1,465
Total current assets 36,565 19,947 9,016 3,789 1,813 35,074 20,152
Working capital 15,315 14,770 7,425 3,348 399 13,084 15,386
Total Assets 38,936 21,403 10,511 4,347 2,379 37,566 22,008
Current liabilities 21,450 5,178 1,591 441 1,415 21,990 4,765
Long term obligations 0 0 0 -- -- -- --
Total shareholders' equity 17,685 16,225 8,918 3,900 965 15,576 17,243
----------
*As Restated
15
SELECTED QUARTERLY FINANCIAL DATA
QUARTERLY FISCAL 2004
UNAUDITED
3 MONTHS
ENDED
JUNE 30, 2003
---------------
Net Sales $ 7,627,975
Gross Profit $ 1,726,109
Net Loss $(2,317,352)
Net Loss
Per Share (basic) (0.28)
Per Share (diluted) (0.28)
-----------
QUARTERLY FISCAL 2003
UNAUDITED UNAUDITED UNAUDITED UNAUDITED
3 MONTHS 3 MONTHS 3 MONTHS 3 MONTHS
ENDED ENDED ENDED ENDED
JUNE 30, 2002 SEPTEMBER 30, 2002 DECEMBER 31, 2002 MARCH 31, 2003
------------- ------------------ ----------------- --------------
Net Sales $ 4,264,203 $33,044,306 $49,102,372 $ 9,202,885
Gross Profit $ 1,273,322 $ 9,754,954 $14,525,191 $(2,268,736)
Net Earnings (loss) $(1,358,780) $ 4,837,926 $ 3,846,894 $(6,108,228)
Net Earnings (loss)
Per Share (basic) (0.17) 0.60 0.47 (0.75)
Per Share (diluted) (0.18) 0.55 0.48 (0.75)
QUARTERLY FISCAL 2002
UNAUDITED UNAUDITED UNAUDITED UNAUDITED
3 MONTHS 3 MONTHS 3 MONTHS 3 MONTHS
ENDED ENDED ENDED ENDED
JUNE 30, 2001* SEPTEMBER 30, 2001* DECEMBER 31, 2001* MARCH 31, 2002
-------------- ------------------- ------------------ --------------
Net Sales $5,523,228 $15,797,752 $34,324,556 $6,780,217
Gross Profit $1,923,199 $ 5,408,430 $11,884,855 $2,406,429
Net Earnings (loss) $ (470,447) $ 1,881,321 $ 5,444,081 $ (565,890)
Net Earnings (loss)
Per Share (basic) (0.07) 0.28 0.74 (0.07)
Per Share (diluted) (0.07) 0.25 0.65 (0.07)
----------
*As Restated
16
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
---------------------------------------
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
OVERVIEW
We are engaged in the development, production, distribution, marketing
and sale of consumer karaoke audio equipment, accessories and music. We also
produce and market karaoke music, including CD plus graphics ("CD+G's"), and
audiocassette tapes containing music and lyrics of popular songs for use with
karaoke recording equipment. We sell our products under our Company(R) trademark
and with have licensing agreements with MTV Networks, Nickelodeon, Hardrock
Academy and Motown Records.
We faced several challenges during our fiscal year ended March 31,
2003. Although our net sales increased to $95,613,766 in the twelve months ended
March 31, 2003 ("fiscal 2003") compared to net sales of $62,475,753 in the
twelve months ended March 31, 2002 ("fiscal 2002), our net income decreased to
$1,217,812 or $.15 per share in fiscal 2003 compared with net income of
$6,289,065 in fiscal 2002 or $.88 per share. Several factors contributed to this
decrease in net income, including but not limited to a loss on a guaranteed
sales contract of approximately $2.5 million, an inventory reserve charge of
approximately $3.7 million, higher than expected operating expenses of $21.6
million in fiscal 2003 and an income tax expense of $198,772.
As a result of these factors, our net worth declined to a level which
took us out of compliance with a tangible net worth requirement contained in our
credit facility with our commercial lender, LaSalle Business Credit, LLC
("LaSalle," "commercial lender" or "lender"). In March 2003, LaSalle notified us
that we were in default of this requirement and that it could accelerate our
loan at any time. Due to the liquidity difficulties associated with the excess
inventory exposure and our lender's notice of default, we received a going
concern uncertainty paragraph on our audited financial statements for fiscal
2003. In their report dated June 24, 2003, our independent certified public
accountants stated that our event of default under our credit agreement with our
commercial lender raised substantial doubt about our ability to continue as a
going concern.
Since June 24, 2003, the date of the audit report, we have taken
several steps to increase our liquidity. In July 2003, we raised $1 million in
subordinated debt financing from an investment group composed of an officer,
directors and an associate of a director and secured a $1 million standby letter
of credit from an unrelated third party. In August 2003, our commercial lender
extended our credit facility until March 31, 2004. Effective as of September 8,
2003, we raised $3.75 million in net proceeds in a private offering from certain
institutional investors. These funds were submitted directly to our lender to
pay down our outstanding line of credit. For more information about this private
offering, please see "Selling Stockholders - Circumstances in which Selling
Stockholders Acquired the Shares."
We also made a decision to restate our financial statements for the
fiscal year ended March 31, 2002 and 2001 to increase the accrual for income
taxes. The restatement did not change reported revenue, gross margin or pre-tax
income for fiscal 2002 or fiscal 2001.
RESTATEMENT OF FINANCIAL STATEMENTS FOR FISCAL 2002 AND 2001
In July 2003, management revised its position on taxation of its
subsidiary's income by the United States and by the Hong Kong tax authorities.
17
Taxation by Hong Kong Authorities
With regard to taxation in Hong Kong, the Company's subsidiary had
previously applied for a Hong Kong offshore claim income tax exemption based on
the locality of profits of the Hong Kong subsidiary. Management believed that
the exemption would be approved because the source of all profits of the Hong
Kong subsidiary was from exporting to customers outside of Hong Kong.
Accordingly, no provision for income taxes was provided in the consolidated
financial statements as of March 31, 2002 and 2001. However, full disclosure was
previously reflected in the audited financial statements for years ended March
31, 2002 and 2001 of the estimated amount that would be due to the Hong Kong tax
authority should the exemption be denied. Management is continuing its exemption
application process. However, due to the extended period of time that the
application has been outstanding, as well as management's reassessment of the
probability that the application will be approved, management has determined to
restate the 2002 and 2001 consolidated financial statements to provide for such
taxes. The effect of such restatement is to increase income tax expense by
$748,672 and $468,424 in fiscal 2002 and 2001, respectively and by $0 in the
three months ended June 30, 2002. However, the Company can claim United States
foreign tax credits in 2002 for these Hong Kong taxes, which is reflected in the
final restated amounts.
Taxation of Hong Kong Income by the United States
With regard to United States taxation of foreign income, the Company
had originally taken the position that the foreign income of the Hong Kong
subsidiary qualified for a deferral under the Internal Revenue Code allowing for
such income to be indefinitely deferred and not taxed in the United States until
such income is repatriated. Full disclosure of the amount and nature of the
indefinite deferral for fiscal year 2002 was reflected in the income tax
footnote of the consolidated financial statements for that year. The Internal
Revenue Code, regulations and case law regarding international income taxation
is quite complex and subject to interpretation. Each case is determined based on
the individual facts and circumstances. Due to certain inter-company loans made
in 2002 and 2003, the profits, previously considered to be indefinitely
deferred, became partially taxable as "deemed dividends" under Section 956 of
the Internal Revenue Code. Although certain arguments against the imposition of
a "deemed dividend" may be asserted, management has determined to restate the
fiscal year 2002 consolidated financial statements based on its reassessment of
its original position. The effect of such restatement is to increase income tax
expense by $1,027,545 in fiscal year 2002 and $0 in the three months ended June
30, 2002.
Summary
The net effect of the above two adjustments is to decrease our net
income by $1,776,217 and $468,424 in fiscal 2002 and 2001 and increase net
income by $118,334 in the three months ended June 30, 2002. The net effect on
basic and diluted earnings per share is a decrease of $0.25 and $0.23,
respectively for fiscal 2002; decrease of $0.07 and $0.06, respectively for the
fiscal year 2001, and increase $0.01 and $0.01, respectively for the three
months ended June 30, 2002.
As restated, our income taxes increased from $119,277 in fiscal 2002 to
$1,895,494 and from $23,320 in fiscal 2001 to $491,744 and consequently our net
income decreased correspondingly. Our income taxes in the three months ended
June 30, 2003 were $2,315. The restatements do not change our reported revenue,
gross margin or pre-tax income for fiscal 2002 or fiscal 2001.
18
RESULTS OF OPERATIONS
THREE MONTHS ENDED JUNE 30, 2003 COMPARED TO
--------------------------------------------
THE THREE MONTHS ENDED JUNE 30, 2002
------------------------------------
Net Sales
Net sales for the quarter ended June 30, 2003 increased 77.5% to
$7,627,975 compared to $4,296,841 for the quarter ended June 30, 2002. The
increase in the Company's sales for this quarter is due to the addition of new
customers in Europe, as well as increased sales to existing customers. Sales in
European countries increased $2.6 million over the same period in the prior
year. The Company believes that sales in this segment will continue to increase
over the remaining fiscal year.
Gross Profit
Gross profit for the quarter ended June 30, 2003 was $1,726,109 or
22.6% of sales as compared to $1,305,960 or 32.2% of sales for the quarter ended
June 30, 2002. The decrease in gross margin percentage compared to the prior
year is due primarily to increased sales from our Hong Kong subsidiary to
international customers. International sales were primarily in Europe for the
quarter. Sales to international customers historically maintain lower selling
prices, and thus a lower gross profit margin. Due to the increased inventory
levels at June 30, 2003, which was carried from the prior year, the Company
anticipates that the gross profit percentage for the remainder of the fiscal
year will fall below last year.
Operating Expenses
Operating expenses were $3,860,347 or 50.6% of total revenues for the
quarter ended June 30, 2003. The expenses increased over prior year by
$1,221,344, but as a percentage of sales, decreased from 61.4% at June 30, 2002.
This decreased percentage is a result of a higher revenue base over which to
spread fixed operating costs. The primary factors that contributed to the
increase of approximately $1.2 million in operating expenses for the quarter
ended June 30, 2003 are:
(i) increased advertising expenses of $105,000, due primarily to
increased sales
(ii) compensation and related expenses in the amount of $341,000.
(iii) increased expenses of $300,000 due to the increased need for
space to hold our high level of inventory in California.
(iv) increased accounting and legal fees of $214,000
(v) various other smaller expenses contributed to the remainder of
the increase.
As a result of the merchandise license agreements and minimum guarantee
requirements, the Company expects royalty expense to increase in fiscal 2004.
Other Expenses
Other expenses were $180,799 for the quarter ended June 30, 2003, as
compared with net other income of $23,956 at June 30, 2002. Our interest expense
increase is due to the increased use of our credit facility at the default rate
of interest during this period. For the quarter ended June 2003, the Company had
cash reserves to fund operations and did not need to borrow on the revolving
credit facility. The Company expects interest expense to continue to increase
for the remainder of fiscal 2004 due to the credit facility accruing interest at
the default rate of prime plus 2.5% (6.75% at June 30, 2003).
19
Income Tax Expense (Benefit)
The Company's tax expense is based on an aggregation of the taxes on
earnings of its Hong Kong and domestic operations on an annualized basis. Income
tax rates in Hong Kong are approximately 16%, while the statutory income tax
rate in the United States is 34%. The Company's effective tax rate during the
first quarter of fiscal 2004 was 0% as compared to 19% during the first quarter
of fiscal 2003. This decrease in the effective tax rate is a result of estimated
tax benefits for fiscal 2004 resulting from estimated United States pretax loss
for fiscal 2004 offset by estimated tax expense related to the estimated Hong
Kong pretax income for fiscal 2004. As the effective tax rates are based on
estimates, the Company's future effective income tax rate will fluctuate based
on the changes in the estimates
FISCAL YEAR ENDED MARCH 31, 2003 COMPARED WITH FISCAL YEAR ENDED MARCH 31, 2002
--------------------------------------------------------------------------------
Net Sales
Net sales for the fiscal year ended March 31, 2003 increased 53.0% to
$95,613,766 compared to $62,475,753 for the fiscal year ended March 31, 2002.
The Company's growth was driven in large part by the addition of International
sales in Europe, Asia, and Australia. This new market area is in its infant
stage and the Company expects continued future growth in this area. We also
generated $30,884,344 million or 32.3% of our net sales from products sold under
the MTV license in fiscal 2003.
Strong sales of the Company's licensed merchandise and the introduction
of new karaoke machines and music titles were also driving forces in our revenue
growth for fiscal 2003. In fiscal 2003, our sales of music increased to
$8,894,743 or 9.3% of sales as compared to $6,306,547 or 10.2% in fiscal 2002.
Sales in fiscal 2003 were reduced by a charge against sales of $2.5
million as a result of the end of a guaranteed margin agreement with a customer.
Gross Profit
Gross profit for the fiscal year ended March 31, 2003 was $23,284,731
or 24.4% of sales as compared to $21,622,913 or 34.6% of sales for the fiscal
year ended March 31, 2002. The decrease in gross margin compared to the prior
year is due primarily to the following factors: (i) increased sales from our
Hong Kong subsidiary both to domestic and international customers; (ii) a write
down of the value of inventory and (iii) a reduction of sales due to a
guaranteed margin contract.
International sales were primarily in Europe, Canada and Australia.
Sales to international customers historically maintain lower selling prices, and
thus, a lower gross profit margin. The main reason for this is that the sales
are made to distributors in those countries and there are no additional variable
expenses. Other variable expenses that are seen in conjunction with U.S. sales
are advertising allowances, handling charges, returns and commissions.
The Company also undertook a revaluation of its current inventory. It
was determined that due to liquidation sales, inventory would be sold at a loss;
therefore, a decrease in the value of these specific items was made. The total
amount of the provision for inventory was $3,715,357.
In fiscal 2003, the Company entered into a guaranteed gross margin
contract which completed on January 15, 2003. The Company entered into an
agreement with a retail customer in April 2002 whereby it guaranteed the
customer a minimum gross margin of $3,573,000 from the sale of the Company's
products during the period from September 1, 2002 through January 15, 2003.
Under the agreement, the Company agreed to reimburse the customer for the
difference between the customer's gross margin on sales and the minimum
guarantee. As of the settlement date of the contract, January 15, 2003, the net
loss on the agreement was $2,570,047. The Company also realized the consignment
sales made by this customer at January 15, 2003, in the amount of $2,441,483. As
of March 31, 2003 the total amount due under this agreement has been paid.
20
Operating Expenses
Operating expenses were $21,670,501 or 22.7% of total revenues in
fiscal 2003, up from $13,387,533 or 16.1% of total revenues, in fiscal 2002. The
primary factors that contributed to the increase of approximately $8.3 million
in operating expenses for the fiscal year 2003 are:
(i) increased advertising expenses of $2,654,729 due to increases
with our outside firm, the production of a television
commercial, as well as cooperative advertising with customers,
which is variable based on the level of sales
(ii) the increase in depreciation in the amount of $239,686 due to
the addition of molds for new product additions for fiscal
year 2003,
(iii) compensation expense in the amount of $1,151,012 due to the
addition of key personnel in Florida, in our California
facility and at our Hong Kong subsidiary,
(iv) increased freight and handling charges to customers in the
amount of $869,525, (v) expansion of the California warehouse
and its associated expenses in the amount of $873,919,
(vi) expansion of International SMC's operations and its related
expenses, in the amount of $580,906.
(vii) increases in product development fees for development of
future product $571,370.
Other increases in operating expenses were to selling expenses, which
are considered variable. These expenses are based directly on the level of sales
and include royalty expenses, show expenses, and other selling expenses.
As a result of the merchandise license agreements and minimum guarantee
requirements, the Company expects royalty expense to increase in fiscal 2004.
Our advertising expense, as discussed in (i) above, increased
$2,654,729 for the fiscal year ended March 31, 2003 as compared to fiscal 2002.
Advertising expense consists of two components: co-operative advertising and
direct advertising expense. Co-operative advertising is paid directly to the
customer and is based directly on the amount of sales. The customer has complete
discretion as to the use of these funds. Co-operative advertising expenses
accounted for $2,320,705 of the increase in advertising expenses. In fiscal
2002, the Company embarked on its first television advertising and continued
with the use of print advertising, radio spots, sponsorships, promotions and
other media. The increased costs for our advertising firm were $334,024 over the
prior year.
Depreciation and Amortization
The Company's depreciation and amortization expenses were $634,142 for
the fiscal year ended March 31, 2003 as compared to $394,456 for the fiscal year
ended March 31, 2002. The increase in depreciation and amortization expenses can
be attributed to the Company's acquisition of new molds and tooling for our
expanded product line, as well as minimal costs for additional computer
equipment and furniture for additional personnel.
Other Expenses
Other expenses were $197,646 for the fiscal year ended March 31, 2003
as compared with net expenses of $50,821 for the fiscal year ended March 31,
2002. Our interest expense increased during the fiscal year ended March 31, 2003
compared to the same period of the prior year primarily due to our increased use
of our credit facility with LaSalle during this period. Prior to August 2002,
the Company had cash reserves to fund operations and did not need to borrow on
the revolving credit facility. Our interest income increased from $2,475 during
the fiscal year 2002 to $11,943 during the fiscal year 2003 because we earned
income on our cash balances held by our lender by investing in 24 hour
commercial paper investments. The Company expects interest expense to increase
21
in fiscal 2004 due to the credit facility accruing interest at the default rate
of prime plus 2.5% (6.75% at March 31, 2003).
Income Tax Expense
The Company's tax expense is based on an aggregation of the taxes on
earnings of its Hong Kong and domestic operations. Income tax rates in Hong Kong
are approximately 16%, while the statutory income tax rate in the United States
is 34%. The Company's effective tax rate in fiscal 2003 was 14% as compared to
23% in fiscal 2002. This decrease in the effective tax rate is a result of the
Company generating a pretax loss in the United States in fiscal 2003, resulting
in a tax benefit, as compared to pretax income in the United States in fiscal
2002. The Company's future effective income tax rate will fluctuate based on the
level of earnings of its Hong Kong and domestic operations.
FISCAL YEAR ENDED MARCH 31, 2002 COMPARED TO FISCAL YEAR ENDED MARCH 31, 2001
-------------------------------------------------------------------------------
Net Sales
Net sales for the fiscal year ended March 31, 2002 increased 80.2% to
$62,475,753 compared to $34,875,351 for the fiscal year ended March 31, 2001.
The Company's growth was driven by strong sales of the Company's MTV licensed
merchandise and the introduction of new karaoke machines and music titles. We
generated $23,354,270 million or 37.8% of our net sales from products sold under
the MTV license in fiscal 2002. Our sales of music increased to $6,306,547 or
10.2% of our net sales in fiscal 2002 compared with $3,087,615 or 9% of our net
sales in fiscal 2001.
Gross Profit
Gross profit for the fiscal year ended March 31, 2002 was $21,622,913
or 35% of sales compared to $12,716,300 or 36% of sales for the fiscal year
ended March 31, 2001. The decrease in gross margin compared to the prior year is
due to the realization of volume discounts by our largest customers. This was
offset to some degree by reduced prices that we paid our manufacturers for our
karaoke machines because of our increased purchases.
Operating Expenses
Operating expenses increased to $13,387,533, or 21% of sales, for the
year ended March 31, 2002 from $7,688,707, or 22% of sales, for the year ended
March 31, 2001. This increase in operating expenses was primarily attributed to
the increase in expenses associated with: (1) the opening of the Company's Hong
Kong office, (2) the Company's first advertising campaign and (3) certain
expenses which are considered variable as they relate directly to the level of
sales.
In December 2000, the Company's wholly owned subsidiary, International
SMC, opened a Hong Kong office. For the fiscal year ended March 31, 2002, this
office incurred SG&A expenses of approximately $1,144,734 compared to $418,618
in the prior year. By opening this office, the Company saved the manufacturers
agency fees, which were paid on each shipment in prior years. The Hong Kong
office has fixed overhead expenses every month, as opposed to per shipment
agency fees. We realized the greatest benefit from our Hong Kong office in the
third quarter of fiscal 2002, when we purchased the largest amount of inventory.
Our advertising expense increased to $2,377,638 for the fiscal year
ended March 31, 2002 compared to $921,359 for the fiscal year ended March 31,
2001. Advertising expense consists of primarily two components: Co-operative
advertising and direct advertising expense. Co-operative advertising is paid
directly to the customer and is based directly on the amount of sales. The
customer has complete discretion as to the use of these funds. Co-operative
22
advertising expenses accounted for $972,000 of the increase in advertising
expenses. In fiscal 2002, the Company embarked on its first formal advertising
campaign, which used print advertising, radio spots, sponsorships, promotions
and other media. The cost for this advertising campaign was approximately
$484,000 and this is a direct advertising expense.
Other expenses, termed variable expenses, contributed to the increase
in operating expenses. These expenses included royalty expense, sales
commissions, warehouse expenses, and travel. The largest increase can be seen in
royalty expense, which increased approximately $1,713,000 over the prior year,
primarily from the sale of items under the MTV licensing agreement. Our
commissions payable to our independent sales representatives increased by
$457,000 during fiscal 2002, because of increased sales. Our warehouse related
expenses also increased by $478,000. These expenses are due to the increased
importing of the Company's karaoke machines from Hong Kong. Compensation
expenses increased $569,935. We grew from 22 employees at March 31, 2001 to 47
employees at March 31, 2002.
Depreciation and Amortization
The Company's depreciation and amortization expenses were $394,456 for
the fiscal year ended March 31, 2002, up from $301,064 in the prior year. The
increase in depreciation and amortization expenses can be attributed to the
Company's acquisition of new fixed assets during fiscal 2002, which included
computers, furniture and other equipment in all of the Company's locations in
Florida, California and Hong Kong. It also included the addition of new molds
for our expanded product line. The amortization expense includes the
amortization of a fee paid to LaSalle Bank for our line of credit facility and
the amortization of remaining deferred guarantee fees related to the factoring
agreement we terminated in April 2001.
Other Expenses
Other expenses were $50,821 for the fiscal year ended March 31, 2002
compared with net expenses of $839,572 for the fiscal year ended March 31, 2001.
The Company had a large decrease in these miscellaneous items primarily because
of the elimination of factoring fees and a decrease in interest expense
resulting in a net decrease of $543,279. The Company terminated its factoring
agreement in April 2001 and no longer incurs the fees and interest associated
with it. The Company replaced the factoring agreement with a lower cost credit
facility with LaSalle Business Credit in April 2001. The Company has also begun
to generate income from royalty payments received in Hong Kong for the use of
Company owned molds by other parties.
Income Before Income Tax Expense
The Company's income before income taxes increased 95.4% to $8,184,559
for the fiscal year ended March 31, 2002, compared to $4,188,021 for the fiscal
year ended March 31, 2001. This increase in profit is due primarily to the
increase in sales.
Income Tax Expense
Our income tax expense was restated for fiscal 2002. Our accrual for
income taxes is based on primarily two components: (i) taxes of $1,027,545 which
we are paying pursuant to Section 956 of the Internal Revenue Code on an
intercompany loans and (ii) taxes of $748,672 for International SMC's business
operations in Hong Kong. The total income tax expense for fiscal 2002 was
$1,895,494.
23
LIQUIDITY AND CAPITAL RESOURCES
As of August 31, 2003, we had cash on hand of approximately $830,000,
compared to cash on hand of $86,413 on June 30, 2003 and a bank overdraft of
$46,652. As of August 31, we owed approximately $7 million to LaSalle under our
revolving credit facility. On or about September 8, 2003, we raised
approximately $3.75 million in net proceeds of the private offering of 8%
convertible debentures. These funds were used to decrease our outstanding
balance with LaSalle. As such, our outstanding credit line with LaSalle was
approximately $3.2 million as of September 9, 2003.
Historically, the Company's operations have been seasonal, with the
highest net sales occurring in the second and third quarters (reflecting
increased orders for equipment and music merchandise during the Christmas
selling months) and to a lesser extent the first and fourth quarters of the
fiscal year. Sales in the Company's fiscal second and third quarter, combined,
accounted for approximately 85% of net sales in fiscal 2003, 81% of net sales in
fiscal 2002 and 75% of net sales in fiscal 2001. We intend on paying the
remaining balance of our credit facility with LaSalle and fund our continuing
operations by utilizing cash collected from sales of our products.
On July 10, 2003, we obtained $1 million in subordinated debt financing
from a certain officer, directors and an associate of a director ("management
group"). On July 28, 2003, an unrelated party posted a $1 million standby letter
of credit as further collateral for our credit facility. It is presently
expected that these capital infusions will be payable on or after March 31,
2004, the day on which our credit agreement with LaSalle expires. The interest
rate on the $1 million loan from the management group is 9.5% per annum. We also
may grant additional compensation to this management group for advancing the $1
million to our company in the form of warrants or some other consideration.
Prior to granting any compensation to the management group, we will obtain a
fairness opinion from a third party.
As of August 31, 2003, the Company had current assets of approximately
$42.7 million, which consisted primarily of accounts receivable and inventory;
and current liabilities of approximately $28.8 million. Our inventory levels
decreased approximately $3 million between June 30, 2003 and September 15, 2003.
The most significant current liabilities include (i) approximately $14.5 million
in accounts payable, of which approximately $12.4 million are amounts payable to
the factories in China. The majority of these payables are current. Over the
past few months, the Company has had discussions with the factories in China and
they have indicated that they are willing to extend the payment dates for the
Company's obligations.
Our Hong Kong subsidiary, International SMC, has letters of credit and
other various credit facilities available to finance its inventory purchases.
International SMC also has a short term loan with the Hong Kong Shanghai Banking
Corporation for $2 million which is due by October 31, 2003. Additionally, one
of our directors advanced $400,000 to International SMC in March 2003. As of
June 30, 2003, the remaining balance of the loan was $200,000 and is due on or
before October 31, 2003, bearing interest at the rate of 8% per annum.
During fiscal 2004, we plan on significantly decreasing our capital
expenditures. We currently expect to order $8-$12 million in new inventory for
domestic stock. During fiscal 2004, we will attempt to liquidate the excess
inventory from fiscal 2003. We believe this inventory is highly marketable and
saleable; however, there can be no assurances that we will be able to liquidate
this inventory during our upcoming fiscal year.
24
The Company's commitments for debt and other contractual arrangements
as of March 31, 2003 are summarized as follows:
----------------------------------------------------------------------------------------------------
Years ending March 31,
----------------------------------------------------------------------------------------------------
Total 2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------
Revolving Credit
Facility $6,782,824 -- -- -- -- --
----------------------------------------------------------------------------------------------------
Merchandise License
Guarantee $1,595,000 $1,395,000 $150,000 $50,000 -- --
----------------------------------------------------------------------------------------------------
Property Leases $3,638,771 $1,330,158 $924,338 $517,071 $495,545 $371,659
----------------------------------------------------------------------------------------------------
Equipment Leases $86,016 $46,525 $19,965 $10,322 $7,969 $1,235
----------------------------------------------------------------------------------------------------
Except for the foregoing, we do not have any present commitment that is
likely to result in our liquidity increasing or decreasing in any material way.
In addition, except for the Company's need for additional capital to finance
inventory purchases, the Company knows of no trend, additional demand, event or
uncertainty that will result in, or that is reasonably likely to result in, the
Company's liquidity increasing or decreasing in any material way.
Cash flows used in operating activities were $10,949 for the quarter
ended June 30, 2003. Cash flows were used in operating activities primarily due
to decreases in accounts receivable in the amount of $1.5 million and increases
in accounts payable of $1.3 million. Cash flows used in operating activities
were $11,532,761 during the fiscal year ended March 31, 2003. Cash flows were
used in operating activities primarily due to increases in accounts receivable
in the amount of $2,619,778 and inventory in the amount of $19,635,351 during
fiscal 2003. We purchased a higher level of inventory in fiscal 2003 as we had
anticipated a higher demand for our products.
Cash used in investing activities for the quarter ended June 30, 2003
was $299,186. Cash used in investing activities resulted from the purchase of
fixed assets in the amount of $299,186. The purchase of fixed assets consists of
the tooling and molds required for production of new machines for this fiscal
year. Tooling and molds are depreciated over five years. Cash used in investing
activities during the fiscal year ended March 31, 2003 was $1,144,064. Cash used
in investing activities resulted primarily from the purchase of fixed assets in
the amount of $1,144,064. The purchase of fixed assets consists primarily of the
tooling and molds required for production of new machines for this fiscal year.
Tooling and molds are depreciated over three years.
Cash flows provided by financing activities were $128,282 for the
quarter ended June 30, 2003. This consisted of proceeds from the exercise of
options in the amount of $207,735. The Company also had a short-term loan with a
director with a balance of $200,000 at June 30, 2003 and a short-term note with
a bank for $2 million. The remainder of cash provided from financing activities
was provided by net borrowings on the credit line at LaSalle National Bank in
the amount of $1.9 million to fund ongoing operations. Cash flows provided by
financing activities were $7,424,943 during the fiscal year ended March 31,
2003. This consisted of proceeds from the exercise of warrants and options in
the amount of $242,119. The Company also had a short-term loan with a director
in the amount of $400,000 during fiscal 2003. The remainder of cash provided
from financing activities was provided by net borrowings on the credit line at
LaSalle National Bank in the amount of $6,782,824 primarily for the financing of
the inventory buildup.
25
Exchange Rates
We sell all of our products in U.S. dollars and pay for all of our
manufacturing costs in either U.S. or Hong Kong dollars. Operating expenses of
the Hong Kong office are paid in Hong Kong dollars. We cannot assure you that
the exchange rate fluctuations between the United States and Hong Kong
currencies will not have a material adverse effect on our business, financial
condition or results of operations.
Seasonal and Quarterly Results
Historically, the Company's operations have been seasonal, with the
highest net sales occurring in the second and third quarters (reflecting
increased orders for equipment and music merchandise during the Christmas
selling months) and to a lesser extent the first and fourth quarters of the
fiscal year. Sales in the Company's fiscal second and third quarter, combined,
accounted for approximately 85% of net sales in fiscal 2003, 81% of net sales in
fiscal 2002 and 75% of net sales in fiscal 2001.
The Company's results of operations may also fluctuate from quarter to
quarter as a result of the amount and timing of orders placed and shipped to
customers, as well as other factors. The fulfillment of orders can therefore
significantly affect results of operations on a quarter-to-quarter basis.
Inflation
Inflation has not had a significant impact on the Company's operations.
The Company has historically passed any price increases on to its customers
since prices charged by the Company are generally not fixed by long-term
contracts.
CRITICAL ACCOUNTING POLICIES
The U.S. Securities and Exchange Commission defines critical accounting
policies as "those that are both most important to the portrayal of a company's
financial condition and results, and require management's most difficult,
subjective or complex judgments, often as a result of the need to make estimates
about the effect of matters that are inherently uncertain. The management of the
Company believes that a high degree of judgment or complexity is involved in the
following areas:
Collectibility of Accounts Receivable. The Company's allowance for
doubtful accounts is based on management's estimates of the creditworthiness of
its customers, current economic conditions and historical information, and, in
the opinion of management, is believed to be an amount sufficient to respond to
normal business conditions. Management sets 100% reserves for customers in
bankruptcy and other reserves based upon historical collection experience.
Should business conditions deteriorate or any major customer default on its
obligations to the Company, this allowance may need to be significantly
increased, which would have a negative impact on operations.
Reserves on Inventories. The Company establishes a reserve on inventory
based on the expected net realizable value of inventory on an item-by-item basis
when it is apparent that the expected realizable value of an inventory item
falls below its original cost. A charge to cost of sales results when the
estimated net realizable value of specific inventory items declines below cost.
Management regularly reviews the Company's investment in inventories for such
declines in value.
Income Taxes. Significant management judgment is required in developing
the Company's provision for income taxes, including the determination of foreign
tax liabilities, deferred tax assets and liabilities and any valuation
allowances that might be required against the deferred tax assets. At March 31,
2003 and 2002, the Company had net deferred tax assets of $1.9 million and $191
thousand, respectively. Management evaluates its ability to realize its deferred
26
tax assets on a quarterly basis and adjusts its valuation allowance as
necessary. There is no related valuation allowance at March 31, 2003 and 2002.
The Company's Hong Kong subsidiary has applied for an exemption of
income tax in Hong Kong. Therefore, no taxes have been expensed or provided for
at the Subsidiary level. Although the governing body has reached no decision to
date, the U.S. parent company has reached the decision to provide for the
possibility that the exemption could be denied and accordingly has recorded a
provision in fiscal 2003, 2002, and 2001.
The Company may be deemed to have constructively repatriated
approximately $5.6 million, $5.7 million and $0 from its foreign operations in
2003, 2002 and 2001, respectively. Accordingly, these earnings were taxed as a
deemed dividend based on U.S. statutory rates. No provision has been made for
U.S. taxes on the remaining undistributed earnings of the Company's foreign
subsidiaries of approximately $3.6 million at March 31, 2003 and $1.9 million at
March 31, 2002, as it is anticipated that such earnings would be permanently
reinvested in their respective operations in accordance with section 956 of the
Internal Revenue Code.
The Company operates within multiple taxing jurisdictions and is
subject to audit in those jurisdictions. Because of the complex issues involved,
any claims can require an extended period to resolve. In management's opinion,
adequate provisions for income taxes have been made.
Other Estimates. The Company makes other estimates in the ordinary
course of business relating to sales returns and allowances, warranty reserves,
and reserves for promotional incentives. Historically, past changes to these
estimates have not had a material impact on our financial condition. However,
circumstances could change which may alter future expectations.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market risk represents the risk of loss that may impact our financial
position, results of operations or cash flows due to adverse changes in
financial and commodity market prices and rates. We are exposed to market risk
in the areas of changes in United States and international borrowing rates and
changes in foreign currency exchange rates. In addition, we are exposed to
market risk in certain geographic areas that have experienced or remain
vulnerable to an economic downturn, such as China. We purchase substantially all
of our inventory from companies in China, and, therefore, we are subject to the
risk that such suppliers will be unable to provide inventory at competitive
prices. While we believe that, if such an event were to occur we would be able
to find alternative sources of inventory at competitive prices, we cannot assure
you that we would be able to do so. These exposures are directly related to our
normal operating and funding activities. Historically and as of June 30, 2003,
we have not used derivative instruments or engaged in hedging activities to
minimize market risk.
Interest Rate Risk
Our exposure to market risk resulting from changes in interest rates
relates primarily to debt under our credit facility with LaSalle. Under our
credit facility, our interest rate is LaSalle's prime rate plus 1/2 of 1% per
annum ("current interest rate"). As of September 15, 2003, our interest rate is
6.5% per annum. We do not believe that near-term changes in the interest rates,
if any, will result in a material effect on our future earnings, fair values or
cash flows.
Foreign Currency Risk
We have a wholly owned subsidiary in Hong Kong. Sales by these
operations made on a FOB China or Hong Kong basis are dominated in U.S. dollars.
27
However, purchases of inventory and Hong Kong operating expenses are typically
denominated in Hong Kong dollars, thereby creating exposure to changes in
exchange rates. Changes in the Hong Kong dollar/U.S. dollar exchange rates may
positively or negatively affect our gross margins, operating income and retained
earnings. We do not believe that near-term changes in the exchange rates, if
any, will result in a material effect on our future earnings, fair values or
cash flows, and therefore, we have chosen not to enter into foreign currency
hedging transactions. We cannot assure you that this approach will be
successful, especially in the event of a significant and sudden change in the
value of the Hong Kong dollar.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
---------------------------------------------
ON ACCOUNTING AND FINANCIAL DISCLOSURE
--------------------------------------
On March 24, 2003, we dismissed Salberg & Company, P.A. ("Salberg &
Company"), as our independent certified public accountant. On March 27, 2003, we
engaged Grant Thornton, LLP ("Grant Thornton"), as our independent certified
public accountant. The Company's decision to change accountants was approved by
its Audit Committee on March 24, 2003.
The report of Salberg & Company on our consolidated financial
statements for fiscal 2002, fiscal 2001 did not contain an adverse opinion or
disclaimer of opinion and was not qualified or modified as to uncertainty, audit
scope or accounting principles. Furthermore, Salberg & Company did not advise
the Company that:
1) internal controls necessary to develop reliable consolidated
financial statements do not exist, or
2) information has come to the attention of Salberg & Company
which made in unwilling to rely upon management's
representations or made it unwilling to be associated with the
consolidated financial statements prepared by management, or
3) the scope of the audit should be expanded significantly, or
information has come to the attention of Salberg & Company
that they have concluded will, or if further investigated
might, materially impact the fairness or reliability of a
previously issued audit report or the underlying consolidated
financial statements, or the consolidated financial statements
issued or to be issued covering the fiscal periods subsequent
to March 31, 2002 (including information that may prevent it
from rendering an unqualified audit report on those
consolidated financial statements) or made in unwilling to
rely on management's representations or to be associated with
the consolidated financial statements prepared by management
or,
4) information has come to the attention of Salberg & Company
that they have concluded will, or if further investigated
might, materially impact the fairness or reliability of a
previously issued audit report or the underlying consolidated
financial statements or the consolidated financial statements
issued or to be issued covering the fiscal periods subsequent
to March 31, 2002 through March 28, 2003, the date of the Form
8-K filing reporting our change in accountants, that had not
been resolved to the satisfaction of Salberg & Company or
which would have prevented Salberg & Company from rendering an
unqualified audit report on such consolidated financial
statements.
During the Company's two most recent fiscal years and all subsequent
interim periods through March 24, 2003 , there were no disagreements with
Salberg & Company on any matters of accounting principles or practices,
financial statement disclosure or auditing scope or procedure, which, if not
resolved to the satisfaction of Salberg & Company would have caused it to make
reference to the subject matter of the disagreements in connection with its
reports on these financial statements for those periods.
The Company did not consult with Grant Thornton regarding the
application of accounting principles to a specific transaction, either completed
28
or proposed, or the type of audit opinion that might be rendered on our
financial statements, and no written or oral advice was provided by Grant
Thornton that was a factor considered by the Company in reaching a decision as
to the accounting, auditing or financial reporting issues.
RESTATEMENT
In July 2003, we revised our position on the taxation of the income of
our Hong Kong subsidiary by the United States and Hong Kong tax authorities,
which was contained in our audited financial statements for fiscal 2002. We
discussed these issues with Salberg & Company and it agreed to opine on the
restated financial statements.
BUSINESS
--------
OVERVIEW
We are engaged in the development, production, distribution, marketing
and sale of consumer karaoke audio equipment, accessories and music. We contract
for the manufacture of all electronic equipment products with factories located
in Asia. We also produce and market karaoke music, including CD plus graphics
("CD+G's"), and audiocassette tapes containing music and lyrics of popular songs
for use with karaoke recording equipment. All of our recordings include two
versions of each song; one track offers music and vocals for practice and the
other track is instrumental only for performance by the participant. Virtually
all of the cassettes sold by us are accompanied by printed lyrics, and our
karaoke CD+G's contain lyrics, which appear on the video screen. We contract for
the reproduction of music recordings with independent studios.
We were incorporated in California in 1982. We originally sold our
products exclusively to professional and semi-professional singers. In 1988, we
began marketing karaoke equipment for home use. We believe we were the first
company to offer karaoke electronic recording equipment and music for home use
in the United States.
In May 1994, we merged into a wholly owned subsidiary incorporated in
Delaware with the same name. As a result of that merger, the Delaware
Corporation became the successor to the business and operations of the
California Corporation and retained the name The Singing Machine Company, Inc.
In July 1994, we formed a wholly owned subsidiary in Hong Kong, now known as
International SMC (HK) Ltd. ("International SMC" or "Hong Kong subsidiary"), to
coordinate our production and finance in Asia.
In November 1994, we closed an initial public offering of 2,070,000
shares of our common stock and 2,070,000 warrants. In April 1997, we filed a
voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy Code. On
March 17, 1998, the U.S. Bankruptcy Court approved our plan of reorganization.
On June 10, 1998, our plan of reorganization had been fully implemented. Our
common stock currently trades on the American Stock Exchange under the symbol
"SMD." We were listed on the AMEX on March 8, 2001. Our principal executive
offices are located in Coconut Creek, Florida.
PRODUCT LINES
We currently have a product line of 34 different models of karaoke
machines plus 12 accessories such as microphones, incorporating such features as
CD plus graphics player, sound enhancement, echo, tape record/playback features,
and multiple inputs and outputs for connection to compact disc players, video
cassette recorders, and home theater systems. Our machines sell at retail prices
ranging from $30 for basic units to $400 for semi-professional units. We
currently offer our music in two formats - multiplex cassettes and CD+G's with
retail prices ranging from $6.99 to $19.99. We currently have a song library of
29
over 3,500 recordings, which we license from publishers. Our library of master
recordings covers the entire range of musical tastes including popular hits,
golden oldies, country, rock and roll, Christian, Latin music and rap. We even
have backing tracks for opera and certain foreign language recordings.
MARKETING, SALES AND DISTRIBUTION
MARKETING
We rely on management's ability to determine the existence and extent
of available markets for our products. Our management has considerable marketing
and sales background and devotes a significant portion of its time to marketing
related activities. We achieve both domestic and direct sales by marketing our
hardware and music products primarily through our own sales force and various
independent sales representatives. Our representatives are located across the
United States and are paid a commission based upon sales in their respective
territories. The sales representative agreements are generally one (1) year
agreements, which automatically renew on an annual basis, unless terminated by
either party on 30 days' notice. At March 31, 2003, we worked with 18
independent sales representatives. We work closely with our major customers to
determine marketing and advertising plans.
We also market our products at various national and international trade
shows each year. We regularly attend the following trade shows and conventions:
the Consumer Electronics Show each January in Las Vegas; the American Toy Fair
each February in New York and the Hong Kong Electronics Show each October in
Hong Kong. We spent approximately $674,925, $181,866 and $55,376 on research and
development in fiscal 2003, 2002 and 2001, respectively. The primary purpose of
our research and development expenses is to develop prototypes and working
samples.
Our karaoke machines and music are marketed under the Company(R)
trademark throughout the United States, primarily through mass merchandisers,
department stores, direct mail catalogs and showrooms, music and record stores,
national chains, specialty stores, and warehouse clubs. Our karaoke machines and
karaoke music are currently sold in such stores as Best Buy, Circuit City, J.C.
Penney, Target and Toys R Us.
Our licensing agreements with MTV Networks and Nickelodeon have further
expanded our brand name and our customer base. Through our license with MTV, we
have begun to focus on the 12 to 24 year old market and through our agreement
with Nickelodeon, we have reached an even younger age group between the ages of
3-6. We also expanded our licensed product lines in fiscal 2003 with the
addition of Hard Rock Academy(R) and Motown(R) (Universal Music Entertainment)
agreements. We believe that the addition of these agreements will help us to
reach demographic areas covering all ages.
In November 2001, we signed an international distributorship agreement
with Arbiter Group, PLC ("Arbiter"). Arbiter is the exclusive distributor of
Company(R) karaoke machines and music products in the United Kingdom and a
non-exclusive distributor in all other European countries. The agreement
terminates on December 31, 2003, subject to an automatic renewal provision.
In March 2003, we signed an international distributorship agreement
with Top-Toy (Hong Kong) Ltd. Top-Toy is the exclusive distributor of Company(R)
karaoke machines and music products in Denmark, Norway, Sweden, Iceland and
Faeroe Islands. The agreement is for three years, from January 1, 2003 until
December 31, 2005.
30
SALES
As a percentage of total revenues, our net sales in the aggregate to
our five largest customers during the fiscal years ended March 31, 2003, 2002
and 2001, respectively, were approximately 67%, 87% and 78% respectively. In
fiscal 2003, 2002 and 2001, Best Buy and Toys R Us each accounted for more than
10% of our revenues. In fiscal 2003 Target and in fiscal 2002 Costco also
accounted for more than 10% of our revenues. Although we have long-established
relationships with all of our customers, we do not have long-term contractual
arrangements with any of them. A decrease in business from any of our major
customers could have a material adverse effect on our results of operations and
financial condition.
During the last three years, our revenues from international sales have
increased. Sales by customer geographic regions were as follows:
2003 2002 2001
----------- ----------- -----------
United States $76,777,138 $62,333,801 $34,391,540
Asia 21,310 49,314 --
Australia 814,334 -- --
Canada 919,642 47,565 11,420
Central America 96,836 5,756 --
Europe 15,714,846 -- 433,821
Mexico 1,225,111 -- --
South America 44,549 39,317 38,570
----------- ----------- -----------
$95,613,766 $62,475,753 $34,875,351
=========== =========== ===========
Returns of electronic hardware and music products by our customers are
generally not permitted except in approved situations involving quality defects,
damaged goods, goods shipped in error or goods that are shipped on a consignment
basis. Our policy is to give credit to our customers for the returns in
conjunction with the receipt of new replacement purchase orders. Our credit
policies are tailored to our customer base. We have not suffered significant
credit losses to date.
DISTRIBUTION
We distribute hardware products to retailers and wholesale distributors
through two methods: shipments of product from inventory (domestic sales), and
shipments of product directly through our Hong Kong subsidiary and manufacturers
in Asia (direct sales). Domestic sales, which account for substantially all of
our music sales, are made to customers located throughout the United States from
inventories maintained at our warehouse facilities in Florida or California.
Domestic Sales. Our strategy of selling products from a domestic
warehouse enables us to provide timely delivery and serve as a "domestic
supplier of imported goods." We purchase karaoke machines overseas from certain
factories in China for our own account, and warehouse the products in leased
facilities in Florida and California. We are responsible for costs of shipping,
insurance, customs clearance, duties, storage and distribution related to such
products and, therefore, warehouse sales command higher sales prices than direct
sales. We generally sell from our own inventory in less than container-sized
lots. In the fiscal year ended March 31, 2003, approximately 48% of our
consolidated sales were domestic sales.
Direct Sales. We ship some hardware products sold by us directly to
customers from Asia through International SMC, our Subsidiary. Sales made
through International SMC are completed by either delivering products to the
customers' common carriers at the shipping point or by shipping the products to
the customers' distribution centers, warehouses, or stores. Direct sales are
made in larger quantities (generally container sized lots) to customers world
wide, who pay International SMC pursuant to their own international,
irrevocable, transferable letters of credit or on an open account. In the fiscal
year ended March 31, 2003, approximately 52% of our consolidated sales were
direct sales.
31
MANUFACTURING AND PRODUCTION
Our karaoke machines are manufactured and assembled by third parties
pursuant to design specifications provided by us. Currently, we have ongoing
relationships with six factories, located in the Shenzhen Special Economic Zone
and Guangdong Province of the People's Republic of China, who assemble our
karaoke machines and related products. In manufacturing our karaoke machines and
related products, these factories use molds and certain other tooling, most of
which are owned by International SMC. Our products contain electronic components
manufactured by other companies such as Panasonic, Sanyo, Toshiba, and Sony. Our
manufacturers purchase and install these electronic components in our karaoke
machines and related products. The finished products are packaged and labeled
under our Company(R) trademarks.
We have obtained copyright licenses from music publishers for all of
the songs in our music library. We contract with outside studios on a work-for
hire basis to produce recordings of these songs. After the songs have been
recorded, the Company authors the CD+G's in our in-house studio. We use outside
companies to mass-produce the CD+G's and audiocassettes, once the masters have
been completed.
While our equipment manufacturers purchase our supplies from a small
number of large suppliers, all of the electronic components and raw materials
used by them are available from several sources of supply, and we do not
anticipate that the loss of any single supplier would have a material long-term
adverse effect on our business, operations, or financial condition. Similarly,
although we primarily use six factories to manufacture our karaoke machines and
accessories, and a small number of studios to record our music (including our
in-house production), we do not anticipate that the loss of any single
manufacturer or single studio would have a material long-term adverse effect on
our business, operations or financial condition. To ensure that our high
standards of product quality and factories meet our shipping schedules, we
utilize Hong Kong based employees of International SMC as our representatives.
These employees include product inspectors who are knowledgeable about product
specifications and work closely with the factories to verify that such
specifications are met. Additionally, key personnel frequently visit our
factories for quality assurance and to support good working relationships.
All of the electronic equipment sold by us is warranted to the end user
against manufacturing defects for a period of ninety (90) days for labor and
parts. All music sold is similarly warranted for a period of 30 days. During the
fiscal years ended March 31, 2003, 2002 and 2001, warranty claims have not been
material to our results of operations.
MERCHANDISE LICENSE AGREEMENTS
In November 2000, we entered into a multi-year merchandise license
agreement with MTV Networks, a division of Viacom International, Inc., to create
the first line of MTV karaoke machine and compact disks with graphics ("CD+G's")
featuring music for MTV's core audience. Under the licensing agreement, we
originally produced two MTV-branded machines for the fiscal 2002 year: (1) a
large format karaoke machine with a built in, fully functional television that
enables users to view song lyrics and (2) a small karaoke system that connects
to a television. We also produced exclusive CD+G's featuring music catering to
MTV's core audience, that were distributed with the MTV branded karaoke
machines. We have amended the agreement three times since November 2000. For
fiscal 2004, our line will consist of nine MTV branded machines and a wide
assortment of MTV branded music. Our license covers the sale of MTV products in
the United States, Canada and Australia. In December 2002, we entered into an
amendment, which adjusted some of the financial aspects of the agreement and
added an additional minimum guarantee of royalty payments of $1,500,000. The MTV
32
license expires on December 31, 2003 and management is currently in negotiations
to extend this agreement beyond that date. We do not believe that the payment of
these guaranteed fees will adversely affect our ongoing operations.
In December 2001, we entered into a multi-year license agreement with
the Nickelodeon division of MTV Networks. Under this license, we originally
created a line of two Nickelodeon branded machines and music for the fiscal 2003
year. This has expanded to five machines, plus a line of Nickelodeon music.
These products are distributed through our established distribution channels.
Over the term of this license agreement, we are obligated to make guaranteed
minimum royalty payments of $450,000. We do not believe that the payment of
these guaranteed fees will adversely affect our ongoing operations. The
Nickelodeon license expires on December 31, 2004.
In December 2002, we entered into a multi-year license agreement with
Hard Rock Academy, a division of Hard Rock Cafe. This agreement allows the
Company to produce and market a line of its karaoke machines and complementary
music through its distribution channels. The first branded machine was
introduced in the fourth quarter of fiscal 2003 and a line of music is currently
under development. Over the term of this license agreement, we are obligated to
make guaranteed minimum royalty payments over a specified period of time in the
total amount of $250,000. We do not believe that the payment of these guaranteed
fees will adversely affect our ongoing operations. The Hard Rock Academy license
expires on December 31, 2005.
In February 2003, we entered into a multi-year license agreement with
Universal Music Entertainment to market a line of Motown karaoke machines and
music. This agreement and its subsidiary agreement signed in March 2003, allow
The Company to be the first to use original artist recordings for our CD+G
formatted karaoke music. The original introduction will be one machine and six
CD+G discs. Over the term of this license agreement, we are obligated to make
guaranteed minimum royalty payments over a specified period of time in the
amount of $300,000. We do not believe that the payment of these guaranteed fees
will adversely affect our ongoing operations. The Universal Music Entertainment
license expires on March 31, 2006.
We distribute all of our licensed products through our established
distribution channels, including Best Buy, Costco, JC Penny, Sam's Club, Target
and Toys R Us. Our distribution network also includes the online versions of
these retail customers.
COMPETITION
Our business is highly competitive. Our major competitors for karaoke
machines and related products are Craig, Curtis, Grand Prix and Memorex. We
believe that competition for karaoke machines is based primarily on price,
product features, reputation, delivery times, and customer support. Our primary
competitors for producing karaoke music are Pocket Songs, UAV, Sybersound and
Sound Choice. We believe that competition for karaoke music is based primarily
on popularity of song titles, price, reputation, and delivery times.
We try to stay ahead of our competition by introducing new products
each year and upgrading our existing products. We believe that we were one of
the first companies to introduce CD+G technology to karaoke machines. In fiscal
2004, we will be introducing more than 20 new models of karaoke machines.
In addition, we compete with all other existing forms of entertainment
including, but not limited to, motion pictures, video arcade games, home video
games, theme parks, nightclubs, television and prerecorded tapes, CD's, and
videocassettes. Our financial position depends, among other things, on our
ability to keep pace with changes and developments in the entertainment industry
and to respond to the requirements of our customers. Many of our competitors
33
have significantly greater financial, marketing, and operating resources and
broader product lines than we do.
TRADEMARKS
We have registered various trademarks with the United States Patent &
Trademark Office for our Company(R) products and also have common law rights in
these trademarks. We have also registered our trademarks in Germany, the Benelux
countries, Switzerland and the United Kingdom. In fiscal 2003, we filed an
application to obtain a European Community Trademark for the 15 European
Community countries and filed registrations in certain Asian countries.
Our trademarks are a significant asset because they provide product
recognition. We believe that our intellectual property is significantly
protected, but there are no assurances that these rights can be successfully
asserted in the future or will not be invalidated, circumvented or challenged.
COPYRIGHTS AND LICENSES
We hold federal and international copyrights to substantially all of
the music productions comprising our song library. However, since each of those
productions is a re-recording of an original work by others, we are subject to
contractual and/or statutory licensing agreements with the publishers who own or
control the copyrights of the underlying musical compositions. We are obligated
to pay royalties to the holders of such copyrights for the original music and
lyrics of all of the songs in our library that have not passed into the public
domain. We are currently a party to more than 3,500 different written copyright
license agreements.
The majority of the songs in our song library are subject to written
copyright license agreements, oftentimes referred to as synchronization
licenses. Our written licensing agreements for music provide for royalties to be
paid on each song. The actual rate of royalty is negotiable, but typically
ranges from $0.09 to $0.18 per song on each CD that is sold. Our written
licenses typically provide for quarterly royalty payments, although some
publishers require reporting on a semi-annual basis.
We currently have compulsory statutory licenses for certain songs in
our song library, which are reproduced on audiocassettes. The Federal Copyright
Act creates a compulsory statutory license for all non-dramatic musical works,
which have been distributed to the public in the United States. Royalties due
under compulsory licenses are payable quarterly and are based on the statutory
rate. The statutory rate is the greater of $0.08 per song for five minutes of
playing time or $0.0155 per minute of playing time or fraction thereof with
respect to each item of music produced and distributed by us. We also have
written license agreements for substantially all of the printed lyrics, which
are distributed with our audiocassettes, which licenses also typically provide
for quarterly payments of royalties at the statutory rate.
GOVERNMENT REGULATION
Our karaoke machines must meet the safety standards imposed in various
national, state, local and provincial jurisdictions. Our karaoke machines sold
in the United States are designed, manufactured and tested to meet the safety
standards of Underwriters Laboratories, Inc. or Electronic Testing Laboratories.
Our production and sale of music products is subject to federal copyright laws.
The manufacturing operations of our foreign suppliers in China are
subject to foreign regulation. China has permanent "normal trade relations"
("NTR") status under US tariff laws, which provides a favorable category of US
import duties. China's NTR status became permanent on January 1, 2002, following
enactment of a bill authorizing such status upon China's admission to the World
Trade Organization ("WTO") effective as of December 1, 2001. This substantially
34
reduces the possibility of China losing its NTR status, which would result in
increasing costs for the Company.
SEASONALITY AND SEASONAL FINANCING
Our business is highly seasonal, with consumers making a large
percentage of karaoke purchases around the traditional holiday season in our
third quarter. A significant portion of our customers place orders in our second
and third quarter in anticipation of such holiday buying. These seasonal
purchasing patterns and requisite production lead times cause risk to our
business associated with the underproduction or overproduction of products that
do not match consumer demand. Retailers also attempt to manage their inventories
more tightly, requiring the Company to ship products closer to the time that
retailers expect to sell the products to consumers. These factors increase the
risk that the Company may not be able to meet demand for certain products at
peak demand times, or that the Company's own inventory levels may be adversely
impacted by the need to pre-build products before orders are placed. In fiscal
2003, we overestimated the demand for our products and had $25 million of
inventory as of March 31, 2003.
In fiscal 2003 and 2002, our financing of seasonal working capital grew
in the first quarter and peaked in the second and third quarter, consistent with
the industry taken as a whole. We are currently in the process of seeking to
amend our existing line of credit. If these efforts are unsuccessful, we will
need to seek alternative facilities. To finance seasonal working capital
requirements of our Hong Kong subsidiary, we expect to use short-term foreign
credit lines with a number of banks. Our foreign credit lines total
approximately $5.5 million. As of July 10, 2003, we expect to spend
approximately $15 million on inventory, in addition to the $25 million on hand
as of March 31, 2003. However, we may change this amount depending on business
requirements.
BACKLOG
We ship our products in accordance with delivery schedules specified by
our customers, which usually request delivery within three months. In the
consumer electronics industry, orders are subject to cancellation or change at
any time prior to shipment. In recent years, a trend toward just-in-time
inventory practices in the toy industry has resulted in fewer advance orders and
therefore less backlog of orders for the Company. We believe that backlog orders
at any given time may not accurately indicate future sales.
EMPLOYEES
As of September 15, 2003, we employed 57 persons, all of whom are
full-time employees, including four executive officers. Fourteen of our
employees are located at International SMC's corporate offices in Hong Kong. The
remaining thirty-four employees are based in the United States, including the
four executive positions; sixteen are engaged in warehousing and technical
support, and fourteen in accounting, marketing, sales and administrative
functions.
PROPERTIES
Our corporate headquarters are located in Coconut Creek, Florida in an
18,000 square foot office and warehouse facility. Our four leases for this
office space expire on August 31, 2004. We sublease showroom space at the
International Toy Center in New York City. We have leased 9,393 square feet of
office and showroom space in Hong Kong from which we oversee our China based
manufacturing operations. Our two leases for this space in the Ocean Center
building expire on April 30, 2005 and May 31, 2005, respectively.
35
We have two warehouse facilities in southern California. The Compton
facility has 69,000 square feet and the lease expires on February 23, 2008. The
Rancho Dominguez location has 94,650 square feet, predominately warehouse. This
lease expires June 30, 2005. We have also subleased warehouse space in Carson,
California, that we previously leased for warehouse space to an unrelated third
party until the expiration of the lease, January 2004. We intend to consolidate
our operations by October of 2003 and sublease one of the remaining facilities
for the term of its lease.
We believe that the facilities are well maintained, are in substantial
compliance with environmental laws and regulations, and are adequately covered
by insurance. We also believe that these leased facilities are not unique and
could be replaced, if necessary, at the end of the term of the existing leases.
LEGAL PROCEEDINGS
We filed a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code in the United States Bankruptcy Court for the Southern District
of Florida, case number 97-22199-BKC-RBR, on April 11, 1997. On March 17, 1998,
the U.S. Bankruptcy Court confirmed our First Amended Plan of Reorganization. As
of June 10, 1998, our plan has been fully implemented.
From July 2, 2003 through October 2, 2003, seven securities class
action lawsuits and a shareholder's derivative action were filed against the
Company and certain of its officers and directors in the United States District
Court for the Southern District of Florida on behalf of all persons who
purchased the Company's securities during the various class action periods
specified in the complaints. On September 18, 2003, United States District Judge
William J. Zlock entered an order consolidating the seven (7) purported class
action law suits and one (1) purported shareholder derivative action into a
single action case styled Frank Bielanski v. Salberg & Company, P.A., et al -
Case Number: 03-80596 - CIV - ZLOCK. The complaints that were filed allege
violations of Section 10(b) and Section 20(a) of the Securities Exchange Act of
1934 and Rule 10(b)-5. The complaints seek compensatory damages, attorney's fees
and injunctive relief. While the specific factual allegations vary slightly in
each case, the complaints generally allege that defendants falsely represented
the Company's financial results during the relevant class periods. We believe
the allegations in these cases are without merit and we intend to vigorously
defend these actions.
We are also involved in certain routine litigation matters incidental
to our business and operations, which we do not believe are material to our
business. In September 2003, we had a disagreement with AG Edwards & Sons, Inc.
("AG Edwards") regarding the terms of our investment banking relationship. We
believed that AG Edwards had waived its right of first refusal to assist us in
raising capital in a private offering and retained Roth Capital Partners, LLC to
raise $4 million in the convertible debenture offering. However, AG Edwards did
not believe that it had waived its right of first refusal. Although we believe
that our position is correct, for business reasons we have decided to settle
this potential claim. We have had discussions with AG Edwards about this matter
and tentatively both parties have agreed to enter into a settlement agreement in
which we have agreed to pay AG Edwards $100,000 in cash over a five month period
and $100,000 in stock valued at the current market price. However, as of October
7, 2003, we have not yet finalized a definitive settlement agreement with them.
36
MANAGEMENT
----------
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information with respect to our
executive officers and directors as of September 15, 2003.
NAME AGE POSITION
---- --- --------
Robert J. Weinberg 54 Chief Executive Officer & Director
Yi Ping Chan 39 Chief Operating Officer, Secretary
April J. Green 39 Chief Financial Officer
Jack Dromgold 59 Executive Vice President of Sales
And Marketing
Josef A. Bauer 65 Director
Howard W. Moore 72 Chairman of the Board
Robert Weinberg has served as our Chief Executive Officer since August
3, 2003 and has served as a director since March 9, 2001. Mr. Weinberg has
considerable experience in toy products, marketing, licensing, merchandising and
packaging. He is currently the founder and president of Value Creations Group, a
toy company based in Saddle River, New Jersey. Previously, he served in various
positions of increasing responsibility with Toys `R Us, rising through the ranks
from buyer trainee in 1971 to Senior Vice President - General Merchandise
Manager in 1997. In these later positions, he was responsible for purchasing
advertising/marketing, imports, product development, store planning and
allocations. He retired from Toys `R' Us in March 2000.
Yi Ping Chan has served as our Chief Operating Officer since May 2,
2003. Prior to this appointment, Chan was a consultant to Company. Mr. Chan was
a founder of MaxValue Capital Ltd., a Hong Kong-based management consulting and
investment firm, and co-founder of E Technologies Ltd., Hong Kong, which
specialized in health care technology transfer from April 1996 to March 2003.
Prior to that, he was Chief Strategist and Interim CFO from January 2000 to June
2002, of a Hong Kong-based IT and business process consulting firm with
operations in Hong Kong, China and the US. He also held a senior management
position with a Hong Kong-based venture capital and technology holding company
with operations in Hong Kong, China and the US. From 1994 to 1997, Mr. Chan was
Business Development Manager for AlliedSignal Inc. (now part of Honeywell
International, inc.) and Knorr-Bremse Far East Ltd., where he focused on joint
ventures and acquisitions in China and Japan. Earlier, he was Senior Associate
Engineer for IBM in New York, and began his career as a member of the technical
staff of TRW Corporation in Redondo Beach, California. Under IBM sponsorship,
Mr. Chan earned an MBA in 1994 and a MSEE in 1990 from Columbia University, and
a BSEE with Magna Cum Laude in 1987 from Polytechnic University, New York. Mr.
Chan is a member of the Young Entrepreneurs' Organization, serving as a board
member of the Hong Kong chapter in 2002 and 2003. He also served as a
development advisor and associate for the Global Chinese Business Initiative at
the Wharton School, University of Pennsylvania from 1998 to 2001.
April Green has served as our Chief Financial Officer since March 15,
2002. Ms. Green joined our company in June 1999 as our controller and was
promoted to the position of Director of Finance & Administration in January 1,
2000. Prior to joining us, Ms. Green held various positions of increasing
responsibility with Monogram International, a large, Florida-based novelty and
toy company from February 1993 to June 1999. At Monogram, Ms. Green rose from
Staff Accountant to Controller. Prior to June 1999, she served in a variety of
financial positions in the automotive industry in the Tampa area. Ms. Green is a
Certified Public Accountant, a member of the American Institute of Certified
Public Accountants (AICPA) and a member of the AWSCPA (American Woman's Society
of CPA's).
37
Jack Dromgold has served as our Executive Vice President of Sales and
Marketing since April 16, 2002. Prior to joining us, Mr. Dromgold served as Vice
President of Sales for Hasbro Games from 1993 through April 2002. Mr. Dromgold
is a 35-year veteran of the toy and game industry and has been involved in the
development of sales programs to support the launch of many new products over
the years.
Josef A. Bauer has served as a director since October 15, 1999. Mr.
Bauer previously served as a director of the Company from February 1990 until
September 1991 and from February 1995 until July 1997, when we began our Chapter
11 proceeding. Mr. Bauer presently serves as the Chief Executive Officer of the
following three companies: Banisa Corporation, a privately owned investment
company, since 1975; Trianon, a jewelry manufacturing and retail sales companies
since 1978 and Seamon Schepps, also a jewelry manufacturing and retail sales
company since 1999.
Howard Moore has served as a director since August 2000. Mr. Moore
served in various capacities for Toys R Us from 1984 through June 2000. From
1984, when Mr. Moore joined Toys 'R Us as executive vice president and general
merchandise manager, until 1990, when he retired, sales increased from $480
million to $4.8 billion. Mr. Moore served on the Toys 'R' Us board of directors
from 1984 until June 2000. He is also founder and president of Howard Moore
Associates, a company, which provides marketing, product licensing, packaging
and merchandising consulting to the toy industry. Previously, he was president
and CEO of Toy Town, USA, Inc. after founding and operating two other toy chain
stores. Mr. Moore is currently serving as the Chairman of the Advisory Board of
Leapfrog Enterprises, Inc.
Our directors serve for a term of one year, or until their successors
shall have been elected and qualified. Our executive officers are appointed and
serve at the discretion of the Board of Directors. There are no family
relationships among any of our directors and executive officers. However, one of
our key personnel, John Steele, our Director of Sales - International, is the
son of Edward Steele, our former Chief Executive Officer and Director.
Board Committees
We have an audit committee, an executive compensation/stock option
committee and a nominating committee. The audit committee consists of Messrs.
Bauer, Moore and Weinberg. The audit committee recommends the engagement of
independent auditors to the board, initiates and oversees investigations into
matters relating to audit functions, reviews the plans and results of audits
with our independent auditors, reviews our internal accounting controls, and
approves services to be performed by our independent auditors. The executive
compensation/stock option committee consists of Messrs. Bauer, Moore and
Weinberg. The executive compensation/stock option committee considers and
authorizes remuneration arrangements for senior management and grants options
under, and administers our employee stock option plan. The entire Board of
Directors operates as a nominating committee. The nominating committee is
responsible for reviewing the qualifications of potential nominees for election
to the Board of Directors and recommending the nominees to the Board of
Directors for such election.
Director's Compensation
It is the general policy of the Board that compensation for independent
directors should be a mix of cash and equity-based compensation. Employee
directors are not paid for Board service in addition to their regular
compensation. In fiscal 2003, each independent director was paid an annual
directors fee of $10,000 in shares of our common stock.
In addition, it is our policy to grant options to each of our outside
independent directors and reimburse each director for our of-pocket-expenses for
38
each Board meeting attended. Each independent director will receive 10,000
options for each year of service on our Board. The exercise price of the options
will be equal to the fair market value of our common stock on the day before our
annual or special shareholders meeting. The options will be exercisable for a
period of five years after the vesting date. During fiscal 2002, we granted each
of our three outside director an option to purchase a total of 10,000 share at
an exercise price of $11.09 per share.
EXECUTIVE COMPENSATION
The following table sets forth certain compensation information for the
fiscal years ended March 31, 2003, 2002, and 2001 with regard to Edward Steele,
our Chief Executive Officer, and each of our other executive officers whose
compensation exceeded $100,000 on an annual basis (the "Named Officers"):
--------------------------------------------------------------------------------------------------------------------------------
SUMMARY COMPENSATION TABLE
--------------------------------------------------------------------------------------------------------------------------------
ANNUAL COMPENSATION LONG TERM COMPENSATION
--------------------------------------------------------------------------------------------------------------------------------
NAME OF INDIVIDUAL AND YEAR SALARY BONUS OTHER ANNUAL RESTRICTED SECURITIES LTIP ALL OTHER
PRINCIPAL POSITION COMPENSATION(1) STOCK UNDERLYING/ PAYOUTS COMPENSATION(2)
AWARD(S) OPTIONS/
SAR'S
--------------------------------------------------------------------------------------------------------------------------------
Edward Steele, CEO(3) 2003 $382,352 $ 0 $8,671 0 30,000 0 $ 17,969
--------------------------------------------------------------------------------------------------------------------------------
2002 $364,145 $192,133 $8,258 0 15,000 0 $ 17,908
--------------------------------------------------------------------------------------------------------------------------------
2001 $320,865 $256,289 $7,938 0 315,000 0 $ 10,515
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
John Klecha, 2003 $300,117 $ 0 $6,555 0 24,000 $ 13,264
President, COO(4)
--------------------------------------------------------------------------------------------------------------------------------
2002 $286,111 $157,200 $6,242 0 15,000 0 $ 11,725
--------------------------------------------------------------------------------------------------------------------------------
2001 $255,777 $205,031 $6,000 0 300,000 0 $ 6,007
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
April Green, CFO (5) 2003 $122,200 $ 25,000 $3,900 0 20,000 0 $ 13,551
--------------------------------------------------------------------------------------------------------------------------------
2002 $ 88,825 $ 25,000 $3,900 0 30,000 0 $ 7,091
--------------------------------------------------------------------------------------------------------------------------------
2001 $ 83,658 $ 17,000 $3,900 0 7,500 0 $ 3,321
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Jack Dromgold, 2003 $210,277 $ 50,000(7) $5,538 0 100,000 0 $154,072(8)
Executive Vice
President, Sales &
Marketing (6)
--------------------------------------------------------------------------------------------------------------------------------
(1) The amounts disclosed in this column for fiscal 2003, 2002 and 2001
include automobile expense allowances, which are provided pursuant to
the executive's employment agreements.
(2) Includes the Company's matching contributions under its 401(k) savings
plan and medical insurance pursuant to the executive's employment
agreements.
(3) Mr. Steele resigned as our Chief Executive Officer and as a director
effective as of August 3, 2003.
(4) Mr. Klecha resigned as our President and Chief Operating Officer
effective as of May 2, 2003.
(5) Ms. Green has served as our Chief Financial Officer since March 15,
2002. She served as the Director of Finance and Administration from
January 1, 2000 through March 14, 2002 and as our controller from June
1999 through December 2000.
(6) Mr. Dromgold joined our company on April 15, 2003.
(7) Mr. Dromgold received $50,000 as a signing bonus when he joined our
company pursuant to his employment agreement.
(8) Includes relocation expenses of $45,529, the Company matching
contributions of 8,543 under its 401(k) savings plan and medical
insurance and a $100,000 value attributed to options granted to Mr.
Dromgold. After one year of employment, Mr. Dromgold had the right to
sell 50,000 options that were granted to him under his employment
agreement back to the Company at a price of $100,000. Mr. Dromgold did
not elect to exercise this right during fiscal 2003 and the Company
extended this right for another year.
39
OPTION GRANTS IN FISCAL 2003
The following table sets forth information concerning all options
granted to our officers and directors during the year ended March 31, 2003. No
stock appreciation rights ("SAR's") were granted.
POTENTIAL REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF STOCK
TOTAL OPTIONS PRICE APPRECIATION
SHARES GRANTED TO FOR OPTION TERM(2)
UNDERLYING EMPLOYEES IN EXERCISE PRICE EXPIRATION
NAME OPTIONS GRANTED(1) FISCAL YEAR PER SHARE DATE 5% 10%
------------------------------------------------------------------------------------------------------------------
Edward Steele 30,000 5.25% $14.30 7/15/08 $118,525 $261,908
John Klecha 24,000 4.28% $14.30 7/15/08 $ 94,800 $209,520
Jack Dromgold 50,000(3) 8.76% $ 8.61 8/14/07 $ 92,775 $199,795
50,000(4) $ 9.00 12/31/08 $124,327 $274,730
April Green 20,000(4) 3.50% $ 9.00 12/31/08 $ 49,731 $109,891
----------
(1) All options were granted pursuant to the Year 2001 Stock Option Plan.
Option exercise prices were at the market when granted.
(2) The dollar amounts under these columns are the result of calculations
based on the market price on the date of grant at an assumed annual
rate of appreciation over the maximum term of the option at 5% and 10%
as required by applicable regulations of the SEC and, therefore, are
not intended to forecast possible future appreciation, if any of the
common stock price. Assumes all options are exercised at the end of
their respective terms. Actual gains, if any, on stock option exercises
depend on the future performance of the common stock.
(3) Half of these options, 25,000 vested on April 15, 2003 and the
remaining 25,000 vest on April 15, 2004.
(4) Twenty percent of the options are exercisable on January 1, 2004 and
20% exercisable each January 1st thereafter with the last 20% becoming
exercisable on January 1, 2008. These options expire with varying
expiration dates from December 31, 2009 through December 31, 2013.
AGGREGATED OPTION EXERCISES IN FISCAL YEAR ENDED MARCH 31, 2003
AND OPTION VALUES
The following table sets forth information as to the exercise of stock
options during the fiscal year ended March 31, 2002 by our officers listed in
our Summary Compensation Table and the fiscal year-end value of unexercised
options.
VALUE OF
NUMBER OF UNEXERCISED
UNEXERCISED IN-THE-MONEY
OPTIONS AT OPTIONS AT
FISCAL YEAR END FISCAL YEAR END(2)
----------- --------------- ------------------
SHARES ACQUIRED VALUE EXERCISABLE/ EXERCISABLE/
NAME OF INDIVIDUAL UPON EXERCISE REALIZED(1) UNEXERCISABLE UNEXERCISABLE
-----------------------------------------------------------------------------------------------
Edward Steele 0 0 352,500/0 $2,251,050/0
John Klecha 0 0 382,500/0 $2,502,330/0
Jack Dromgold 0 0 25,000/75,000 $0/0
April Green 1,000 $3,940 26,000/20,000 $ 128,440/0
40
----------
(1) Value realized is based on the difference between the closing price of
our common stock on the date of exercise and the option exercise prices
times the number of outstanding options.
(2) Value of unexercised options equals $6.98, the average of the high and
low trading prices on March 31, 2003, less the option exercise price
multiplied by the number of shares exercisable or unexercisable.
EMPLOYMENT AGREEMENTS
Robert Weinberg. Mr. Weinberg became our Chief Executive Officer
effective as of August 3, 2003. After we closed our private offering on
September 8, 2003, we began paying Mr. Weinberg a salary equal to $300,000 per
annum in accordance with our normal payroll practices. We intend to enter into
an employment agreement with Mr. Weinberg in the near future. However, as of
September 15, 2003, we have not finalized the terms of Mr. Weinberg's employment
with our company.
April Green. On March 15, 2002, we entered into a three-year employment
agreement with April Green, our Chief Financial Officer. Pursuant to Ms. Green's
employment agreement, she is entitled to receive base compensation of $122,200
per year, which amount automatically increases during the second and third
fiscal years by not less than the greater of 5% or the annual increase in the
consumer price index. The agreement also provides for discretionary bonuses
based on a percentage of the Company's current bonus pool. In the event of a
termination of her employment following a change of control, Ms. Green would be
entitled to a lump sum payment of 50% of the amount of her total compensation in
the twelve months preceding such termination. During the term of her employment
agreement and for a period of one year after her termination for cause, Ms.
Green cannot directly or indirectly compete with our company in the karaoke
industry in the United States.
Yi Ping Chan Effective as of May 2, 2003, we entered into a three-year
employment agreement with Yi Ping Chan, our Chief Operating Officer. Mr. Chan is
entitled to receive an annual salary equal to $250,000 per year, plus bonuses
and increases in his annual salary, at the sole discretion of the Company's
Board of Directors. In July 2003, Mr. Chan agreed to accept 15% of his salary
during nine-month period between July 1, 2003 through March 31, 2004 in the form
of stock rather than cash. We also agreed to grant Mr. Chan options to purchase
150,000 shares of the Company's common stock, of which 50,000 options will vest
each year and to reimburse him for moving expenses of up to $40,000.
In the event of a termination of his employment following a change of
control, Mr. Chan would be entitled to a lump sum payment of 100% of the amount
of his total compensation in the twelve months preceding such termination.
During the term of his employment agreement and for a period of two year after
his termination for cause, Mr. Chan cannot directly or indirectly compete with
our company in the karaoke industry in the United States.
Jack Dromgold. On April 15, 2002, we entered into a three-year
employment agreement with Jack Dromgold, expiring on April 14, 2005. We hired
Mr. Dromgold to be our Executive Vice President of Sales and Marketing. Mr.
Dromgold's employment agreement will be automatically be extended for an
additional year, unless either party gives written notice at least sixty days
prior to the end of the three-year term. Pursuant to Mr. Dromgold's employment
agreement, he is entitled to receive base compensation of $220,000 per year,
which amount automatically increases during the second and third fiscal years by
not less than the greater of 5% or the annual increase in the consume price
index. In July 2003, Mr. Dromgold agreed to accept 15% of his salary during
nine-month period between July 1, 2003 through March 31, 2004 in the form of
stock rather than cash.
41
As a signing bonus, we agreed to pay Mr. Dromgold a signing bonus in
the amount of $50,000 and options to purchase 50,000 shares of our common stock.
We also gave Mr. Dromgold the right to sell the 50,000 options back to us for
$100,000 after his first year of employment with the company. Mr. Dromgold did
not exercise this right after his first year of employment and in May 2003 we
verbally extend his put option for another year until April 15, 2004. We also
agreed to grant Mr. Dromgold a minimum of 50,000 options for each year of his
employment with the company. During his first year of employment, Mr. Dromgold's
bonus is equal to 1% of new accounts shipped, but will be equal to a minimum of
$50,000. During the second year of his employment, Mr. Dromgold's bonus will be
switched to 10% of the Company's then current bonus plan. We also agreed to pay
Mr. Dromgold's certain moving expenses in connection with his move from
Massachusetts to Florida. Mr. Dromgold's moving expenses were $39,000.
In the event of a termination of Mr. Dromgold's employment in the event
of a change in control, Mr. Dromgold would be entitled to a lump sum payment of
50% of the amount of his total compensation in the twelve months preceding such
termination. During the term of his employment agreement and for a period of one
year after his termination for cause or his voluntary termination of his
employment, Mr. Dromgold can not directly or indirectly compete with our company
in the karaoke industry in the United States.
Edward Steele. Mr. Steele resigned as our Chief Executive Officer and
as a Director effective as of August 3, 2003. Mr. Steele continues to be
employed as an employee of the Company under his employment dated March 1, 1998
and as amended on May 5, 2000. Mr. Steele's employment agreement expires on
February 28, 2004. Under this agreement, his annual compensation was $367,500
for fiscal 2003. In July 2003, Mr. Steele agreed to accept 15% of his salary
during eight month period between July 1, 2003 through February 28, 2004 in the
form of stock rather than cash. The agreement also provides for a discretionary
bonuses determined by our Board of Directors. Mr. Steele did not receive a
discretionary bonus for fiscal 2003. In the event of a termination of Mr.
Steele's employment in the event of a change in control, Mr. Steele would be
entitled to a lump sum payment of 300% of the amount of his total compensation
in the twelve months preceding such termination. During the term of his
employment agreement and for a period of one year after his termination for
cause or his voluntary termination of his employment, Mr. Steele can not
directly or indirectly compete with our company in the karaoke industry in the
United States.
John Klecha. Mr. Klecha was employed as our Chief Operating Officer
pursuant to an employment agreement dated July 1, 2000. Mr. Klecha's employment
agreement was to expire on May 31, 2003 and would automatically extend for an
additional year, until May 31, 2004, unless either party gave written notice at
least sixty days prior to the end of the three-year term. We gave Mr. Klecha
notice that we would not renew his employment agreement in February 2003. Mr.
Klecha resigned as our Chief Operating Officer and President, effective as of
May 2, 2003. In connection with his resignation, we entered into a separation
and release agreement. Under this agreement, we agreed to provide Mr. Klecha
with a severance payment equal to $183,707, which consisted of (i) salary and
auto allowance through May 31, 2003, (ii) four weeks of accrued vacation time,
(iii) four months of salary and automobile allowance payments and (iv) seven
months COBRA reimbursement payments. In exchange, Mr. Klecha agreed to release
the Company from any liability in connection with termination of employment.
EQUITY COMPENSATION PLANS AND 401(K) PLAN
The Company has two stock option plans: the 1994 Amended and Restated
Stock Option Plan ("1994 Plan") and the Year 2001 Stock Option Plan ("Year 2001
Plan"). Both the 1994 Plan and the Year 2001 Plan provide for the granting of
incentive stock options and non-qualified stock options to our employees,
officers, directors and consultants As of March 31, 2001, we had 970,225 options
42
issued and outstanding under our 1994 Plan and 81,750 options are issued and
outstanding under our Year 2001 Plan.
The following table gives information about equity awards under our
1994 Plan, the Year 2001 Plan.
NUMBER OF SECURITIES TO BE WEIGHTED-AVERAGE NUMBER OF SECURITIES REMAINING
ISSUED UPON EXERCISE EXERCISE PRICE OF AVAILABLE FOR FUTURE ISSUANCE UNDER
OR OUTSTANDING OPTIONS, OUTSTANDING OPTIONS, EQUITY COMPENSATION PLANS
PLAN CATEGORY WARRANTS AND RIGHTS WARRANTS AND RIGHTS (EXCLUDING SECURITIES IN COLUMN (A))
------------- -------------------------- -------------------- ------------------------------------
Equity Compensation
Plans approved by
Security holders 1,513,250 $4.38 716,975
Equity Compensation Plans
Not approved by Security
Holders 0 0 0
1994 PLAN
Our 1994 Plan was originally adopted by our Board of Directors in May
1994 and it was approved by our shareholders on June 29, 1994. Our shareholders
approved amendments to our 1994 Plan in March 1999 and September 2000. The 1994
Plan reserved for issuance up to 1,950,000 million share of our common stock
pursuant to the exercise of options granted under the Plan. As of September 15,
2003, we had granted all the options that are available for grant under our 1994
Plan. As of September 15, 2003, we had 394,900 options issued and outstanding
under the 1994 Plan and all of these options are fully vested as of March 31,
2003.
YEAR 2001 PLAN
On June 1, 2001, our Board of Directors approved the Year 2001 Plan and
our shareholders at a special meeting held September 6, 2001 subsequently
approved it. The Year 2001 Plan was developed to provide a means whereby
directors and selected employees, officers, consultants, and advisors of the
Company may be granted incentive or non-qualified stock options to purchase
common stock of the Company. The Year 2001 Plan authorizes an aggregate of
1,950,000 shares of the Company's common stock and a maximum of 450,000 shares
to any one individual in any one fiscal year. The shares of common stock
available under the Year 2001 Plan are subject to adjustment for any stock
split, declaration of a stock dividend or similar event. At September 15, 2003,
we have granted 694,500 options under the Year 2001 Plan, 168,333 of which are
fully vested.
The Year 2001 Plan is administered by our Stock Option Committee
("Committee"), which consists of two or more directors chosen by our Board. The
Committee has the full power in its discretion to (i) grant options under the
Year 2001 Plan, (ii) determine the terms of the options (e.g. - vesting,
exercise price), (iii) to interpret the provisions of the Year 2001 Plan and
(iv) to take such action as it deems necessary or advisable for the
administration of the Year 2001 Plan.
Options granted to eligible individuals under the Year 2001 Plan may be
either incentive stock options ("ISO's"), which satisfy the requirements of Code
Section 422, or non-statutory options ("NSO's"), which are not intended to
satisfy such requirements. Options granted to outside directors, consultants and
advisors may only be NSO's. The option exercise price will not be less than 100%
of the fair market value of the Company's common stock on the date of grant.
ISO's must have an exercise price greater to or equal to the fair market value
of the shares underlying the option on the date of grant (or, if granted to a
holder of 10% or more of our common stock, an exercise price of at least 110% of
the under underlying shares fair market value on the date of grant). The maximum
exercise period of ISO's is 10 years from the date of grant (or five years in
the case of a holder with 10% or more of our common stock). The aggregate fair
market value (determined at the date the option is granted) of shares with
43
respect to which an ISO are exercisable for the first time by the holder of the
option during any calendar year may not exceed $100,000. If that amounts exceeds
$100,000, our Board of the Committee may designate those shares that will be
treated as NSO's.
Options granted under the Year 2001 Plan are not transferable except by
will or applicable laws of descent and distribution. Except as expressly
determined by the Committee, no option shall be exercisable after thirty (30)
days following an individual's termination of employment with the Company or a
subsidiary, unless such termination of employment occurs by reason of such
individual's disability, retirement or death. The Committee may in its sole
discretion, provide in a grant instrument that upon a change of control (as
defined in the Year 2001 Plan) that all outstanding option issued to the grantee
shall automatically, accelerate and become full exercisable. Additionally, the
obligations of the Company under the Year 2001 Plan are binding on (1) any
successor corporation or organization resulting from the merger, consolidation
or other reorganization of the Company or (2) any successor corporation or
organization succeeding to all or substantially all of the assets and business
of the Company. In the event of any of the foregoing, the Committee may, at its
discretion, prior to the consummation of the transaction, offer to purchase,
cancel, exchange, adjust or modify any outstanding options, as such time and in
such manner as the Committee deems appropriate.
401(K) PLAN
Effective January 1, 2001, we adopted a voluntary 401(k) plan. All
employees with at least one year of service are eligible to participate in our
401(k) plan. In fiscal 2002, we made a matching contribution of 100% of salary
deferral contributions up to 3% of pay, plus 50% of salary deferral
contributions from 3% to 5% of pay for each payroll period. The amounts charged
to earnings for contributions to this plan and administrative costs during the
years ended March 31, 2003, 2002 and 2001 totaled $61,466, $41,733 and $8,682,
respectively.
CERTAIN TRANSACTIONS
--------------------
On or about July 10, 2003, certain officers and directors of our
company advanced $1 million to the Company. The officer was Yi Ping Chan and the
directors were Jay Bauer and Howard Moore. Additionally, Maureen LaRoche, a
business associate of Mr. Bauer, participated in the financing. This loan bears
interest at the rate of 9.5% per annum. It is presently expected that the loan
will be repaid on or after March 31, 2004, when our credit agreement with
LaSalle expires. We also may grant additional compensation to this management
group for advancing the $1 million to our company in the form of warrants or
some other consideration. Prior to granting any compensation to the management
group, we will obtain a fairness opinion from a third party.
On about March 4, 2003, Jay Bauer, one of our directors advanced
$400,000 to our Hong Kong subsidiary, which used the funds to pay a debt with a
trade creditor. We were to repay Mr. Bauer's loan in two months on or about May
4, 2003 and the loan bore interest at the rate of 8% per annum. We repaid
$200,000 on the loan on or about May 4, 2002 and we intend on paying the
remaining balance on or before October 31, 2003.
On July 1, 1999, we loaned $55,000 to each of Eddie Steele and John
Klecha to purchase 2 units in our private placement. These loans bore interest
at the rate of 9% per annum and were due on June 28, 2001. Mr. Klecha and Mr.
Steele repaid these loans and all accrued interest in June 2001.
In June 1999, we arranged a credit facility with Main Factors, whereby
Main Factors purchased certain of our accounts receivable. To secure the credit
44
facility, John Klecha, our Chief Operating Officer and Chief Financial Officer,
provided his personal payment guaranty. In July 1999, we entered into an
agreement with EPK Financial Corporation ("EPK") whereby EPK provided letters of
credit with our factories to import inventory for distribution to our customers.
To secure the EPK facility, Edward Steele and John Klecha provided their
personal guarantees. In consideration for providing their personal guarantees of
these credit facilities, we issued 200,000 shares of our common stock to Mr.
Steele and 150,000 shares of our common stock to Mr. Klecha in June 1999. Both
agreements with Main Factors and EPK were terminated in April 2001. We amortized
the value of these deferred guarantee fees over a two year period, which was
completed in the first quarter of fiscal 2002.
PRINCIPAL STOCKHOLDERS
----------------------
The following table set forth as of September 20, 2003, certain
information concerning beneficial ownership of our common stock by:
-all directors of the Company,
-all executive officers of the Company.
-persons known to own more than 5% of our common stock;
Unless otherwise indicated, the address for each person is The Singing
Machine Company, Inc., 6601 Lyons Road, Building A-7, Coconut Creek, Florida
33073. As of September 20, 2003, we had 8,687,596 shares of our common stock
issued and outstanding.
As used herein, the term beneficial ownership with respect to a
security is defined by Rule 13d-3 under the Securities Exchange Act of 1934 as
consisting of sole or shared voting power (including the power to vote or direct
the vote) and/or sole or shared investment power (including the power to dispose
or direct the disposition of) with respect to the security through any contract,
arrangement, understanding, relationship or otherwise, including a right to
acquire such power(s) during the next 60 days. Unless otherwise noted,
beneficial ownership consists of sole ownership, voting and investment rights.
SHARES OF PERCENTAGE OF
COMMON COMMON
NAME STOCK STOCK
---- --------- -------------
Robert Weinberg
Chief Executive Officer and Director 68,300(1) *
Y.P. Chan 8,152(2) *
Chief Operating Officer
April Green 27,050(3) *
Chief Financial Officer
Jack Dromgold 45,176(4) *
Executive Vice President
Joseph Bauer 971,171(5) 11.15%
Director
Howard Moore 332,376(6) 3.91%
Director
Eddie Steele 1,029,910(7) 11.4%
Former Chief Executive Officer
And Director(7)
John Klecha 810,811(8) 9.33%
Former Officer and Director(8)
Wellington Management
Company, LLP 945,000(9) 11.39%
All Directors and
Executive Officers
as a Group 1,452,223(10) 16.44%
45
----------
Less than 1%.
(1) Includes 55,000 shares issuable upon the exercise of stock options that
are exercisable within 60 days of September 20, 2003.
(2) Mr. Chan owns options to purchase 150,000 shares of the Company's
common stock, with 1/3 of the options vesting on December 31, 2003.
Because these options are not exercisable within 60 days, Mr. Chan is
not deemed to be the beneficial owner under the Exchange Act.
(3) Includes 26,000 shares issuable upon the exercise of stock options that
are exercisable within 60 days of September 20, 2003.
(4) Includes 25,000 shares issuable upon the exercise of stock options that
are exercisable within 60 days of September 20, 2003.
(5) Includes 17,596 shares which are held by Mr. Bauer directly, 360,000
shares held by Mr. Bauer's pension plan, 179,600 shares held by the
Bauer Family Limited Partnership, 200,000 shares held by Mr. Bauer's
wife, 193,975 shares held by Mr. Bauer and his wife directly and 20,000
shares issuable upon the exercise of stock options that are exercisable
within 60 days of September 20, 2003.
(6) Includes 256,049 shares held by the Howard & Helen Moore Living Trust,
49,250 shares held by Howard Moore Associates, Inc. Defined Benefit
Pension Plan, 2,077 shares held by the Howard & Helen Moore Insurance
Trust and 25,000 shares issuable upon the exercise of stock options
that are exercisable within 60 days of September 20, 2003.
(7) Effective as of August 3, 2003, Mr. Steele resigned as our Chief
Executive Officer and as a director. Mr. Steele will continue to be an
employee of the Company until February 28, 2004. Includes 152,910
shares held by Mr. Steele's wife and 352,500 shares issuable upon the
exercise of stock options that are exercisable within 60 days of
September 20, 2003.
(8) Mr. Klecha resigned as Chief Operating Officer effective as of May 2,
2003 and as a director effective as of July 28, 2003.
(9) The address of Wellington Management Company, LLP is 78 State Street,
Boston, Massachusetts 02109. All of the information presented in this
item with respect to this beneficial owner was extracted solely from
their Scheduled 13G filed on February 14, 2003.
(10) Includes 145,000 shares issuable upon the exercise of stock options
that are exercisable within 60 days of September 20, 2003.
DESCRIPTION OF SECURITIES
-------------------------
We are authorized to issue:
*18,900,000 shares of common stock,
*100,000 shares of Class A common stock, and
*1,000,000 shares of convertible preferred stock.
As of September 15, 2003, we have 8,682,596 shares of our common stock issued
and outstanding and no shares of Class A common stock or convertible preferred
stock are issued and outstanding.
46
COMMON STOCK
The holders of our common stock are entitled to one vote for each share
held of record on all matters to be voted on by stockholders. There is no
cumulative voting with respect to the election of directors, with the result
that the holders of more than 50% of the shares voted for the election of
directors can elect all of the directors. The holders of our common stock are
entitled to receive dividends when, as and if declared by the Board of Directors
out of funds legally available. In the event of liquidation, dissolution or
winding up of the Company, the holders of our common stock are entitled to share
ratably in all assets remaining available for distribution to them after payment
of liabilities and after provision has been made for each class of stock, if
any, having preference over the common stock. Holders of shares of common stock,
as such, have no conversion, preemptive or other subscription rights, and,
except as noted herein, there are no redemption provisions applicable to the
common stock. All of the outstanding shares of common stock are validly issued,
fully paid and nonassessable.
CLASS A COMMON STOCK
Our Certificate of Incorporation authorizes the issuance of 100,000
shares of Class A Common Stock. In connection with our public offering in 1994,
all issued shares of our Class A common stock were converted into shares of our
common stock. We do not plan on issuing any shares of our Class A common stock
and will delete this provision from our Certificate of Incorporation when we
file the next amendment to our Certificate of Incorporation.
CONVERTIBLE PREFERRED STOCK
Our Board of Directors has the authority, without further action by our
stockholders, to issue up to 1,000,000 shares of our preferred stock in one or
more series and to fix the rights, preferences, privileges and restrictions
thereof. In April 1999, we authorized the issuance of 1,000,000 shares of our
convertible preferred stock in connection with a private offering of our units.
All of these shares of convertible preferred stock were converted into shares of
our common stock automatically on April 1, 2000.
We do not plan on issuing any shares of our convertible preferred stock
in the near future and will delete this provision from our Certificate of
Incorporation when we file the next amendment to our Certificate of
Incorporation.
ANTI-TAKEOVER EFFECTS OF CERTAIN PROVISIONS OR OUR ARTICLES OF INCORPORATION,
BYLAWS AND DELAWARE LAW
Certain provisions of our amended certificate of incorporation, bylaws
and Delaware law, which are summarized below, may be deemed to have an
anti-takeover effect and may delay, defer or prevent a tender offer or takeover
attempt that a stockholder might consider in its best interest, including those
attempts that might result in a premium over the market price for the shares
held by stockholders.
CUMULATIVE VOTING
Our amended certificate of incorporation does not permit our
stockholders the right to cumulate votes in the election of directors.
47
SPECIAL MEETING OF STOCKHOLDERS
Our bylaws provided that special meetings of our stockholders may only
be called by (1) resolution of the Board or the president or (2) the president
or the secretary upon the written request (stating the purpose of the meeting of
a majority of the directors then in office or the holders of a majority of the
outstanding shares entitled to vote.
AUTHORIZED BUT UNISSUED SHARES
The authorized but unissued shares of common stock are available for
future issuance without stockholder approval. These additional shares may be
utilized for a variety of corporate purposes, including public or private
offerings to raise capital, corporate acquisitions and employee benefit plans.
The existence of authorized but unissued shares of common stock could render
more difficult or discourage an attempt to obtain control of us, by means of a
proxy contest, tender offer, merger or otherwise.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION MATTERS
We have adopted provisions in our amended certificate of incorporation
and bylaws that limit the liability of our directors to the fullest extent
permitted by the by the Delaware General Corporation Law. Pursuant to such
provisions, no director will be liable to the Company or its stockholders for
monetary damages for breaches of certain fiduciary duties as a director of the
Company. The limitation of liability will not affect a director's liability for
(1) a breach of the director's duty of loyalty to the Company or its
stockholders, (2) an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of the law, (3) any unlawful
distributions, or (4) a transaction from which the director receives an improper
personal benefit. The limitation of liability also will not affect the
availability of equitable remedies such as injunctive relief or rescission.
Our amended certificate of incorporation and bylaws require us to
indemnify our officers and directors to the fullest extent permitted by Delaware
law. We intend to enter into indemnification agreements with our directors and
executive officers. These agreements, among other things, indemnify our
directors and executive officers for certain expenses, judgments, fines and
settlement amounts incurred by them in any action or proceeding, including any
action by or in the right of the Company, arising out of the person's services
as a director or executive officer of the Company or any other company or
enterprise to which the person provides services at our request. We believe that
these provisions and agreements are necessary to attract and retain qualified
directors and executive officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling person based on
the foregoing provisions, we have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
and is, therefore, unenforceable.
DELAWARE LAW
Under Delaware law, a corporation may not engage in any "business
combination" (as defined in the Delaware General Corporation Law) with an
"interested stockholder" for three years after such stockholder becomes an
interested stockholder. An interested stockholder is any person who is the
beneficial owner of 15% or more of the outstanding voting stock of the
corporation. A corporation may enter into a business combination with an
interested stockholder if:
48
(a) the Board of Directors approves either the business combination or
the transaction which resulted in the stockholder becoming an interested
stockholder before the date on which the stockholder becomes an interested
stockholder;
(b) upon consummation of the transaction resulting in the stockholder
reaching the 15% threshold, the stockholder owned 85% of the outstanding voting
shares at the time the transaction commenced, excluding those shares held by
directors who are also officers or employee stock plans in which the
participants do not have the right to determine confidentially whether shares
subject to the plan will be tendered in a tender or exchange offer; or
(c) on or subsequent to becoming an interested stockholder, the
business combination is approved by the Board of Directors and is authorized at
a meeting by the affirmative vote of at least two-thirds of the outstanding
voting stock not owned by the interested stockholder.
TRANSFER AGENT
The transfer agent for our common stock is Continental Stock Transfer &
Trust Co., 2 Broadway New York, New York 10004.
SHARES ELIGIBLE FOR FUTURE SALE
-------------------------------
As of September 15, 2003, we have 8,682,596 shares of our common stock
issued and outstanding. If the 2,755,314 shares registered in this Prospectus
are issued, we will have 11,437,910 shares issued and outstanding. Of these
shares, all of the 2,755,314 shares registered in this offering will be freely
tradeable without restriction or further registration under the Securities Act,
unless such shares are purchased by "affiliates" as that term is defined in Rule
144 under the Securities Act. Shares that cannot be traded without restriction
are referred to as "restricted securities" as that term is defined in Rule 144
under the Securities Act. Restricted securities may be sold in the public market
only if registered of if they qualify for an exemption from registration under
Rule 144 of the Securities Act.
Rule 144
In general, under Rule 144 as currently in effect, a person (or group
of person whose shares are aggregated), including affiliates of the Company, who
have beneficially owned shares of our common stock for at least one year would
be entitled to sell within any three-month period, an amount of restricted
securities that does not exceed the greater of:
*1% of the number of shares of common stock then outstanding
(approximately 86,825 shares as of September 15, 2003; or
*the average weekly trading volume in the common stock during the four
calendar weeks preceding the filing of a notice on Form 144 with
respect to such sale.
Sales under Rule 144 are also subject to certain manner of sale
provisions and notice requirements and to the availability of current public
information about us.
49
Rule 144(k)
Under Rule 144(k), a person who is not deemed to have been one of our
affiliates at any time during the 90 days preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two years,
including the holding period of any prior owner other than an affiliate, is
entitled to sell such shares without complying with the manner of sale, public
information, volume limitation or notice provisions of Rule 144.
No prediction can be made as to the effect, if any that market sales of
the Company's common stock, or the availability of the common stock for sale,
will have on the market price of the common stock prevailing from time to time.
Nevertheless, sales of a significant number of shares of the Company's common
stock in the public market, or the perception that such sales could occur, could
adversely affect the market price of the common stock and impair our future
ability to raise capital through an offering of equity securities. See "Risk
Factors - Future sales of our common stock may depress our stock price."
LEGAL MATTERS
-------------
The validity of the securities being offered hereby will be passed upon
by Adorno & Yoss, P.A., 700 S. Federal Highway, Suite 200, Boca Raton, Florida
33432.
EXPERTS
-------
Our financial statements for the year ended March 31, 2003 appearing in
this Prospectus and registration statement have been audited by Grant Thornton
LLP, as independent certified public accountants, as set forth in their report
appearing elsewhere herein, and are included in reliance upon the report given
on the authority of the firm as experts in accounting and auditing. Our
financial statements for the years ended March 31, 2002 and 2001 appearing in
this Prospectus and registration statement have been audited by Salberg &
Company, P.A., as independent auditors, as set forth in their report appearing
elsewhere herein, and are included in reliance upon the report given on the
authority of the firm as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
-----------------------------------------
We have filed with the Securities and Exchange Commission a
registration statement on Form S-1 pursuant to the Securities Act of 1933, as
amended, with respect to the offer, issuance and sale of 2,755,314 shares of our
common stock. This Prospectus does not contain all of the information set forth
in the registration statement. For further information with respect to us, and
the shares of our common stock to be sold in this offering, we make reference to
the registration statement. Although this Prospectus contains all material
information regarding us, statements contained in this Prospectus as the
contents of any contract, agreement or other document referred to are not
necessarily complete, and in each instance we make reference to the copy of the
contract, agreement, or other document filed as an exhibit to the registration
statement, each statement being qualified in all respects by the reference.
You may read and copy all or any portion of the registration statement
or any other information, which we filed at the SEC's public reference rooms in
Washington, D.C., New York, New York, and Chicago, Illinois. The address for the
SEC's public reference room in Washington, D.C. is Judiciary Plaza, 450 Fifth
Street, N.W., Washington, DC 20549. You can request copies of these documents,
upon payment of a duplicating filing fee, by writing to the SEC. Please call the
Securities and Exchange Commission at 1-800-SEC-0330 for further information on
the operation of the public reference rooms. Our SEC filings are also available
to you free or charge at the SEC's web site at http://www.sec.gov.
50
THE SINGING MACHINE COMPANY, INC.
INDEX TO FINANCIAL STATEMENTS
UNAUDITED FINANCIAL STATEMENTS FOR THE
THREE MONTHS ENDED JUNE 30, 2003 AND 2002
Consolidated Balance Sheets - June 30, 2003 (Unaudited) and
March 31, 2003
Consolidated Statements of Operations - Three Months Ended
June 30, 2003 and 2002 (Unaudited)
Consolidated Statements of Cash Flows . - Three Months Ended
June 30, 2003 and 2002 (Unaudited)
Notes to Consolidated Financial Statements
AUDITED FINANCIAL STATEMENTS AS OF MARCH 31, 2003 AND 2002 AND THE FISCAL
YEARS ENDED MARCH 31, 2003, 2002 AND 2001
Independent Auditors' Reports
Consolidated Balance Sheets as of March 31, 2003 and 2002
Consolidated Statements of Earnings
for the Years Ended March 31, 2003, 2002 and 2001
Consolidated Statements of Changes in Stockholders' Equity
for the Years Ended March 31, 2003, 2002 and 2001
Consolidated Statements of Cash Flows
for the Years ended March 31, 2003, 2002 and 2001
Notes to Consolidated Financial Statements as of March 31, 2003, 2002 and 2001
F-1
THE SINGING MACHINE COMPANY, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
JUNE 30, MARCH 31,
2003 2003
----------- -----------
(unaudited)
ASSETS
------
CURRENT ASSETS
Cash and cash equivalents $ 86,413 $ 268,265
Restricted Cash 862,122 838,411
Accounts Receivable, less allowances of $171,411
and $405,759, respectively 4,236,488 5,762,944
Due from manufacturer 60,272 1,091,871
Inventories 25,959,760 25,194,346
Prepaid expense and other current assets 1,943,844 1,483,602
Deferred tax asset 1,925,612 1,925,612
----------- -----------
TOTAL CURRENT ASSETS 35,074,511 36,565,051
PROPERTY AND EQUIPMENT, at cost less accumulated
depreciation of $1,648,369 and $1,472,850, respectively 2,149,919 2,026,252
OTHER NON-CURRENT ASSETS 341,530 343,991
----------- -----------
TOTAL PROPERTY, EQUIPMENT AND OTHER ASSETS 2,491,449 2,370,243
----------- -----------
TOTAL ASSETS $37,565,960 $38,935,294
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
CURRENT LIABILITIES
Bank overdraft 46,652 316,646
Accounts payable $ 9,785,339 $ 8,486,009
Accrued expenses 1,231,491 1,443,406
Due to related party 200,000 400,000
Notes payable 2,000,000 0
Revolving credit facility 4,903,371 6,782,824
Income taxes payable 3,823,360 3,821,045
----------- -----------
TOTAL CURRENT LIABILITIES 21,990,213 21,249,930
----------- -----------
SHAREHOLDERS' EQUITY
Preferred stock, $1.00 par value; 1,000,000 shares
authorized, no shares issued and outstanding -- --
Common stock, Class A, $.01 par value; 100,000 shares
authorized; no shares issued and outstanding -- --
Common stock, $0.01 par value; 18,900,000 shares
authorized; 8,300,178 and 8,171,678 shares issued and outstanding 83,002 81,717
Additional paid-in capital 5,049,880 4,843,430
Retained earnings 10,442,865 12,760,217
----------- -----------
TOTAL SHAREHOLDERS' EQUITY 15,575,747 17,685,364
----------- -----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $37,565,960 $38,935,294
=========== ===========
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-2
THE SINGING MACHINE COMPANY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
THREE MONTHS ENDED
JUNE 30, JUNE 30,
2003 2002
------------- -----------
(as restated)
NET SALES $ 7,627,975 $ 4,296,841
COST OF SALES 5,901,866 2,990,881
------------- -----------
GROSS PROFIT 1,726,109 1,305,960
OPERATING EXPENSES
Advertising 270,770 165,765
Compensation 1,111,579 770,898
Freight & handling 225,866 245,490
Royalty expense 83,964 67,830
Selling, general & administrative expenses 2,168,168 1,389,020
------------- -----------
TOTAL OPERATING EXPENSES 3,860,347 2,639,003
------------- -----------
LOSS FROM OPERATIONS (2,134,238) (1,333,043)
OTHER INCOME (EXPENSES)
Other income 7,669 13,901
Interest expense (188,468) (1,549)
Interest income -- 11,604
------------- -----------
NET OTHER EXPENSES (180,799) 23,956
NET LOSS BEFORE INCOME TAX (2,315,037) (1,309,087)
INCOME TAX EXPENSE 2,315 118,334
NET LOSS $ (2,317,352) $(1,427,421)
============= ===========
LOSS PER SHARE:
Basic & Diluted $ (0.28) $ (0.18)
WEIGHTED AVERAGE COMMON AND COMMON EQUIVALENT
SHARES OUTSTANDING:
Basic & Diluted 8,278,469 8,061,277
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-3
THE SINGING MACHINE COMPANY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
FOR THE QUARTER ENDED JUNE 30,
----------- ------------------
2003 2002 (AS RESTATED)
----------- ------------------
CASH FLOWS FROM OPERATING ACTIVITIES
Net Loss $(2,317,352) $(1,309,087)
Adjustments to reconcile net loss to net cash
used in operating activities
Depreciation and amortization 175,519 121,047
Changes in assets and liabilities:
(Increase) decrease in:
Restricted cash (23,711) 0
Accounts Receivable 1,526,456 924,688
Due from manufacturer 0 (251,909)
Inventories 266,185 (3,666,981)
Prepaid Expenses and other assets (457,782) 87,483
Increase (decrease) in:
Accounts payable 1,299,330 2,413,542
Accrued expenses (211,914) (784,259)
Bank Overdraft (269,994) 0
Income taxes payable 2,315 (58,542)
----------- -----------
Net Cash used in Operating Activities (10,948) (2,524,018)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment (299,186) (612,141)
Deposit for credit line 0 (650)
----------- -----------
Net cash used in Investing Activities (299,186) (612,791)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Net revolving credit facility (1,879,453) 0
Payments on related party loan (200,000) 0
Proceeds from note payable 2,000,000
Proceeds from exercise of stock options and warrants 207,735 81,785
----------- -----------
Net cash provided by Financing Activities 128,282 81,785
----------- -----------
DECREASE IN CASH AND CASH EQUIVALENTS (181,852) (3,055,024)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 268,265 5,520,147
----------- -----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 86,413 $ 2,465,123
=========== ===========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the year for interest $ 188,469 $ 1,549
=========== ===========
Cash paid during the year for income taxes $ 0 $ 58,542
=========== ===========
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-4
THE SINGING MACHINE COMPANY, INC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - SUMMARY OF ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements include
the accounts of The Singing Machine Company, Inc. and its subsidiary (the
"Company", "The Singing Machine"). All significant intercompany transactions and
balances have been eliminated. The unaudited consolidated financial statements
have been prepared in conformity with Rule 10-01 of Regulation S-X of the
Securities and Exchange Commission and therefore do not include information or
footnotes necessary for a complete presentation of financial position, results
of operations and cash flows in conformity with accounting principles generally
accepted in the United States of America. However, all adjustments (consisting
of normal recurring accruals), which, in the opinion of management, are
necessary for a fair presentation of the financial statements, have been
included. Operating results for the period ended June 30, 2003 are not
necessarily indicative of the results that may be expected for the remaining
quarters or the year ending March 31, 2004 due to seasonal fluctuations in The
Singing Machine's business, changes in economic conditions and other factors.
For further information, please refer to the Consolidated Financial Statements
and Notes thereto contained in The Singing Machine's Annual Report on Form 10-K
for the year ended March 31, 2003.
INVENTORIES
Inventories are comprised of electronic karaoke audio equipment,
accessories, and compact discs and are stated at the lower of cost or market, as
determined using the first in, first out method. The following table represents
the major components of inventory at the dates specified.
June 30, 2003 March 31, 2003
------------- --------------
Finished goods $ 27,991,580 $ 27,807,763
Inventory in transit 1,568,870 1,101,940
Less Inventory reserve (3,600,690) (3,715,357)
------------ ------------
Total Inventory $ 25,959,760 $ 25,194,346
============ ============
RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform to the
current year presentation.
STOCK BASED COMPENSATION
The Company accounts for stock options issued to employees using the
intrinsic value method in accordance with the provisions of Accounting
Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to
Employees," and related interpretations. As such, compensation cost is measured
on the date of grant as the excess of the current market price of the underlying
stock over the exercise price. Such compensation amounts are amortized over the
respective vesting periods of the option grant. The Company applied the
disclosure provisions of Statement of Financial Accounting Standards No. 148,
"Accounting for Stock-Based Compensation-Transition and Disclosure an amendment
of FASB Statement No. 148", which permits entities to provide pro forma net
earnings (loss) and pro forma earnings (loss) per share disclosures for employee
stock option grants as if the fair-valued based method defined in SFAS No. 123
had been applied to options granted.
Had compensation cost for the Company's stock-based compensation plan
been determined using the fair value method for awards under that plan,
consistent with Statement of Financial Accounting Standards (SFAS) No 123,
"Accounting for Stock Based Compensation" (Statement No. 123), the Company's net
earnings would have been changed to the pro-forma amounts indicated below.
JUNE 30, 2003 JUNE 30, 2002
------------- -------------
Net loss As reported $ (2,317,352) $ (1,427,421)
Pro forma $ (2,518,804) $ (1,456,293
Net loss per share - basic & diluted As reported $ (0.28) $ (0.18)
Pro forma $ (0.30) $ (0.18)
F-5
The effect of applying Statement No. 123 is not likely to be
representative of the effects on reported net earnings for future years due to,
among other things, the effects of vesting.
For stock options and warrants issued to consultants, the Company
applies the fair value method of accounting as prescribed by SFAS 123. There
were no consulting expenses relating to grants for the quarters ended June 30,
2003 and 2002.
For financial statement disclosure purposes and for purposes of valuing
stock options and warrants issued to consultants, the fair market value of each
stock option granted was estimated on the date of grant using the Black-Scholes
Option-Pricing Model in accordance with SFAS 123 using the following
weighted-average assumptions:
First Quarter 2004: expected dividend yield 0%, risk-free
interest rate of 4%, volatility 79.9% and
expected term of five years.
First Quarter 2003: expected dividend yield 0%, risk-free
interest rate of 6.8%, volatility 42%
and expected term of two years.
RECENT ACCOUNTING PRONOUNCEMENTS
SFAS No. 149, "Amendment of Statement 133 on Derivative Instruments and
Hedging Activities" amends and clarifies accounting for derivative instruments,
including certain derivative instruments embedded in other contracts, and for
hedging activities under SFAS 133. SFAS 149 is generally effective for contracts
entered into or modified after June 30, 2003 (with a few exceptions) and for
hedging relationships designated after June 30, 2003. The Company does not
expect the provisions of SFAS 149 to have a material impact on its financial
position or results of operations.
SFAS No. 150, "Accounting for Certain Financial Instruments with
Characteristics of both Liabilities and Equity" ("SFAS 150"). SFAS 150 improves
the accounting for certain financial instruments that, under previous guidance,
issuers could account for as equity. The new Statement requires that those
instruments be classified as liabilities in statements of financial position.
This statement is effective at the beginning of the second quarter of fiscal
2004. The Company does not expect the provisions of SFAS 150 to have a material
impact on its financial position or results of operations.
NOTE 2 - GOING CONCERN
The accompanying unaudited consolidated financial statements have been
prepared in conformity with accounting principles generally accepted in the
United States of America, which contemplate continuation of the Company as a
going concern.
On March 14, 2003, the Company was notified of its violation of the net
worth covenant of its Loan and Security Agreement (the "Agreement") with its
commercial lender and the Company was declared in default under the Agreement.
The lender amended the Agreement on July 31, 2003, extending the loan until
August 20, 2003, but did not waive the condition of default. This condition of
default raises substantial doubt about the Company's ability to continue as a
going concern.
The Company is attempting to restructure and extend its revolving
credit facility. Based upon cash flow projections, the Company believes the
anticipated cash flow from operations will be sufficient to finance the
Company's operating needs until inventory is sold and the receivables
subsequently collected, provided that the bank does not call the loan. There can
be no assurances that forecasted results will be achieved or that additional
financing will be obtained. The financial statements do not include any
adjustments relating to the recoverability and classification of asset amounts
or the amounts and classification of liabilities that might be necessary should
the Company be unable to continue as a going concern.
Although the Company had a larger than normal amount of currently
saleable inventory at June 30, 2003 and March 31, 2003 (based on the Company's
recent sales trends and industry turnover standards), the Company has developed
a fiscal 2004 sales plan that it believes will allow it to sell such inventory
and recover its costs in the normal course of business.
NOTE 3 - RESTATEMENT OF FINANCIAL STATEMENTS FOR THE FISCAL YEARS 2002 AND 2001
In June 2003, management revised its position on taxation of its
subsidiary's income by the United States and by the Hong Kong tax authorities.
F-6
With regard to taxation in Hong Kong, the Company's subsidiary had
previously applied for a Hong Kong offshore claim income tax exemption based on
the locality of profits of the Hong Kong subsidiary. Management believed that
the exemption would be approved because the source of all profits of the Hong
Kong subsidiary is from exporting to customers outside of Hong Kong.
Accordingly, no provision for income taxes was provided in the consolidated
financial statements as of March 31, 2002 and 2001. However, full disclosure was
previously reflected in the audited financial statements for years ended March
31, 2002 and 2001 of the estimated amount that would be due to the Hong Kong tax
authority should the exemption be denied. Management is continuing its exemption
application process. However, due to the extended period of time that the
application has been outstanding, as well as management's reassessment of the
probability that the application will be approved, management has determined to
restate the 2002 and 2001 consolidated financial statements to provide for such
taxes. The effect of such restatement is to increase income tax expense by
$748,672 and $468,424 in fiscal 2002 and 2001, respectively. However, the
Company can claim United States foreign tax credits in 2002 for these Hong Kong
taxes, which is reflected in the final restated amounts.
With regard to United States taxation of foreign income, the Company
had originally taken the position that the foreign income of the Hong Kong
subsidiary qualified for a deferral under the Internal Revenue Code allowing for
such income to be indefinitely deferred and not taxed in the United States until
such income is repatriated. Full disclosure of the amount and nature of the
indefinite deferral for fiscal year 2002 was reflected in the income tax
footnote of the consolidated financial statements for that year. The internal
revenue code, regulations and case law regarding international income taxation
is quite complex and subject to interpretation. Each case is determined based on
the individual facts and circumstances. Due to certain inter-company loans made
in 2002 and 2003, the profits previously considered to be indefinitely deferred
became partially taxable as "deemed dividends" under section 956 of the Internal
Revenue Code. Although certain arguments against the imposition of a "deemed
dividend" may be asserted, management has determined to restate the fiscal year
2002 consolidated financial statements based on its reassessment of its original
position. The effect of such restatement is to increase income tax expense by
$1,027,545 in fiscal year 2002, which includes the utilization of the foreign
tax credits referred to above.
The net effect of the above two adjustments for the quarter ended June
30, 2002 is to decrease net income by $118,334. The net effect on net income per
share is to decrease net income per share basic and diluted by $0.01 for the
quarter ended June 30, 2002.
NOTE 4 - LOANS AND LETTERS OF CREDIT
CREDIT FACILITY
The Company's Hong Kong Subsidiary maintains separate credit facilities
at two international banks.
The Company maintains a facility with a maximum credit available of
$5.5 million U.S. dollars. The primary purpose of the facilities is to provide
the Subsidiary with the following abilities:
o Overdraft facilities
o Issuance and negotiation of letters of credit, both regular and
discrepant
o Trust receipts
o A Company credit card
The facilities are secured by a corporate guarantee from the U.S.
Company, maintain restricted cash on deposit with the lender and maintain net
worth as outlined in the agreement.
The Company executed a short term loan with an international bank in
May of 2003. The $2,000,000 loan carries interest at a SIBOR (Singapore
Interbank Money Offer Rate) rate plus 2.75%. The rate at June 30, 2003 was
4.02%. The loan must be paid in full by October 31, 2003 and a deposit of
$350,000 must be retained in a restricted depository account with the lender
until such time as the loan is paid in full.
LOAN AND SECURITY AGREEMENT
On April 26, 2001, the Company executed a Loan and Security Agreement
(the "Agreement") with a commercial lender (the "Lender"). On July 31, 2003,
this loan was amended through August 20, 2003. The following is a description of
the terms as amended.
The Lender will advance up to 70% of the Company's eligible accounts
receivable, plus up to 20% of the eligible inventory up to $6,000,000, plus up
to 40% of the commercial letters of credit opened for the purchase of eligible
inventory up to $3 million, less reserves at the discretion of the lender.
F-7
The outstanding loan limit varies between zero and $10,000,000, as
stipulated in the Agreement. The Lender also provides the Company the ability to
issue commercial letters of credit up to $3,000,000, which shall reduce the loan
limits above. The loans bear interest at the commercial lender's prime rate plus
0.5% and an annual fee equal to 1% of the maximum loan amount or $100,000 is
payable. All amounts under the loan facility are due within 90 days of demand.
The loans are secured by a first lien on all present and future assets of the
Company except for certain tooling located at a vendor in China. This amendment
expires August 20, 2003.
The Agreement contains covenants including a restriction on the payment
of dividends as well as a financial covenant stipulating a minimum tangible net
worth of $30,000,000 as of December 31, 2002 with escalations as defined in the
Agreement. On March 15, 2003, the lender notified the Company that they are in
default of this covenant and the agreement. The balance outstanding at March 31,
2003 was $6,782,824 and was classified as a current liability under revolving
credit facility on the balance sheet. At March 31, 2003, the Company was over
advanced under the agreement by approximately $3 million. The June 30, 2003
amendment gave the Company an additional $4.5 million in availability which gave
the Company working capital and cured the over advance; however, the Amendment
requires the Company to raise $2 million in subordinated debt.
The Company is currently negotiating a restructuring of the agreement
with the lender.
NOTE 5 - COMMITMENTS AND CONTINGENCIES
LEGAL MATTERS
CLASS ACTION. From July 2, 2003 through August 11, 2003, ten securities
class action lawsuits were filed against The Singing Machine and certain of its
officers and directors in the United States District Court for the Southern
District of Florida on behalf of all persons who purchased The Singing Machine's
securities during the various class action periods specified in the complaints.
The Company expects that all of these actions will be consolidated in the United
States District Court for the Southern District of Florida.
The complaints that have been filed allege violations of Section 10(b)
and Section 20(a) of the Securities Exchange Act of 1934 and Rule 10(b)-5. The
complaints seek compensatory damages, attorney's fees and injunctive relief.
While the specific factual allegations vary slightly in each case, the
complaints generally allege that defendants falsely represented the Company's
financial results for the years ended March 31, 2002 and 2001.
The Company believes that the allegations in these cases are without
merit and the Company intends to vigorously defend these actions. However, as
the outcome of litigation is difficult to predict, significant changes in the
estimated exposures could occur which could have a material affect on the
Company's operations.
In July 2003, a shareholder filed a derivative action against the
Company, its board of directors and senior management purporting to pursue the
action on behalf of the Company and for its benefit. No pre-lawsuit demand to
investigate the allegations or bring action was made on the board of directors.
The Company is named as a nominal defendant in this case.
The Complaint alleges claims for breach of fiduciary duty, abuse of
control, gross mismanagement, waste of corporate assets and unjust enrichment.
The complaint alleges that the individual defendants breached their fiduciary
duties and engaged in gross mismanagement by allegedly ignoring indicators of
the lack of control over the Company's accounting and management practices,
allowing the Company to engage in improper conduct and otherwise failing to
carry out their duties and obligations to the Company. The plaintiff's seek
damages for breach of fiduciary duties, punitive and compensatory damages,
restitution, and bonuses or other incentive-based or equity based compensation
received by the CEO and CFO under the Sarbanes-Oxley Act of 2002.
The Company believes that the allegations in this derivative lawsuit
are without merit and intends to vigorously defend this action.
OTHER MATTERS. The Company is also subject to various other legal
proceedings and other claims that arise in the ordinary course of its business.
In the opinion of management, the amount of ultimate liability, if any, in
excess of applicable insurance coverage, is not likely to have a material effect
on the financial condition, results of operations or liquidity of the Company.
However, as the outcome of litigation or other legal claims is difficult to
predict, significant changes in the estimated exposures could occur, which could
have a material impact on the Company's operations.
F-8
NOTE 6 - STOCKHOLDERS' EQUITY
COMMON STOCK ISSUANCES
During the first quarter of fiscal 2004 and 2003, the Company issued
the following shares of stock upon exercise of outstanding options and warrants.
------------- ------------------------------ --------------------------
June 30, Number of Shares Issued Proceeds to Company
------------- ------------------------------ --------------------------
2004 128,500 $207,735
------------- ------------------------------ --------------------------
2003 69,000 $81,785
------------- ------------------------------ --------------------------
EARNINGS PER SHARE
In accordance with Statement of Financial Accounting Standards No. 128,
"Earnings per Share," basic earnings per share are computed by dividing the net
earnings for the period by the weighted average number of common shares
outstanding. Diluted earnings per share is computed by dividing net earnings by
the weighted average number of common shares outstanding including the effect of
common stock equivalents.
The following table presents a reconciliation of basic and diluted
earnings per share:
JUNE 30,
2003 2002
(as restated)
Net loss $(2,317,352) $(1,427,421)
Loss available to common shares $(2,317,352) $(1,427,421)
Weighted average shares outstanding -
basic & diluted 8,278,469 8,061,277
Loss per share - Basic & Diluted $ (0.28) $ (0.18)
For the quarter ended June 30, 2003 and 2002, 637,681 and 784,331
common stock equivalents were excluded from the computation of diluted earnings
per share because their effect was antidilutive.
NOTE 7 - SEGMENT INFORMATION
The Company operates in one segment and maintains its records
accordingly. The majority of sales to customers outside of the United States are
made by the Company's Subsidiary. Sales by geographic region for the quarters
ended June 30 were as follows:
SALES 2003 2002
United States $3,863,002 $3,494,039
France
1,018,046 --
Italy
792,720 --
United Kingdom 1,532,065 429,496
Other 422,142 373,306
---------- ----------
Consolidated Net Sales $7,627,975 $4,296,841
========== ==========
The geographic area of sales is based primarily on the location where the
product is delivered.
NOTE 8 - SUBSEQUENT EVENTS
As of July 10, 2003, the Company obtained $1 million in subordinated debt
financing from a certain officer, directors and an associate of a director. The
Company has not finalized the terms of this loan; however, the Company has
immediate use and access to the $1 million of funding.
As of July 28, 2003, an unrelated party posted a $1 million standby letter of
credit as further collateral on the revolving credit facility. The consideration
to be paid in return for this has not been finalized.
F-9
[GRANT THORNTON LETTERHEAD]
REPORT OF INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS
Board of Directors
The Singing Machine Company, Inc.
We have audited the accompanying consolidated balance sheet of The Singing
Machine Company, Inc. and subsidiary (the "Company") as of March 31, 2003 and
the related consolidated statements of earnings, shareholders' equity and cash
flows for the year then ended. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these financial statements and financial statement schedule based on our audit.
We conducted our audit in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of The Singing
Machine Company, Inc. and subsidiary as of March 31, 2003 and the consolidated
results of their operations and their consolidated cash flows for the year then
ended, in conformity with accounting principles generally accepted in the United
States of America.
We have also audited Schedule II of The Singing Machine Company, Inc. and
subsidiary for the year ended March 31, 2003. In our opinion, this schedule,
when considered in relation to the basic consolidated financial statements taken
as a whole, presents fairly, in all material respects, the information therein.
The accompanying financial statements have been prepared assuming the Company
will continue as a going concern. As discussed in Note 2 to the financial
statements, on March 14, 2003, the Company was notified of its violation of the
net worth covenant of its Loan and Security Agreement (the "Agreement") with its
commercial lender (the "Lender") and the Company was declared in default under
the Agreement. As of June 24, 2003, the Company has minimal liquidity. In June
2003, this Lender amended the Agreement through July 31, 2003 but did not waive
the condition of default (see Note 9). This continuing condition of default
raises substantial doubt about the Company's ability to continue as a going
concern. Management's plans in regard to increasing liquidity and restructuring
the Agreement are also described in Note 2 to the financial statements. The
financial statements do not include any adjustments that might result from the
outcome of this uncertainty.
/s/ Grant Thornton LLP
Miami, Florida
June 24, 2003 (except for Note 9, as to which the date is July 8, 2003 and Note
15, as to which the date is July 10, 2003)
F-10
Independent Auditors' Report
----------------------------
Board of Directors and Shareholders:
The Singing Machine Company, Inc.
and Subsidiary
We have audited the accompanying consolidated balance sheet of The Singing
Machine Company, Inc., and Subsidiary as of March 31, 2002, and the related
consolidated statements of income, changes in stockholders' equity, and cash
flows for the years ended March 31, 2002 and 2001. These consolidated financial
statements are the responsibility of the company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the consolidated
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the consolidated financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as well
as evaluating the overall consolidated financial statement presentation. We
believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of The Singing Machine
Company, Inc. and Subsidiary as of March 31, 2002, and the results of their
operations and their cash flows for the years ended March 31, 2002 and 2001 in
conformity with accounting principles generally accepted in the United States of
America.
As more fully described in Note 3 of the fiscal 2003, 2002 and 2001 consolidated
financial statements, subsequent to the issuance of the Company's 2002 and 2001
consolidated financial statements and our report thereon dated May 23, 2002,
management determined to restate the 2002 and 2001 consolidated financial
statements to reflect a change in their position regarding taxation of certain
corporate income and a resulting increase in the income tax provision for years
2002 and 2001. In our related report, we expressed an unqualified opinion. Our
opinion on the revised consolidated financial statements, as expressed herein,
remains unqualified.
/s/ SALBERG & COMPANY, P.A.
---------------------------
SALBERG & COMPANY, P.A.
Boca Raton, Florida
May 23, 2002 (except for Note 3 as to which the date is July 14, 2003)
F-11
THE SINGING MACHINE COMPANY, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
MARCH 31,
-------------------------
2003 2002
----------- -----------
(as restated)
(Note 3)
ASSETS
------
CURRENT ASSETS
Cash and cash equivalents $ 268,265 $ 5,520,147
Restricted cash 838,411 513,684
Accounts receivable, less allowance for doubtful accounts of $405,759
in 2003 and $12,022 in 2002 5,762,944 3,536,903
Due from manufacturer 1,091,871 488,298
Inventories 25,194,346 9,274,352
Prepaid expenses and other current assets 1,449,505 422,314
Deferred tax asset 1,925,612 191,418
Deposits 34,097 --
----------- -----------
TOTAL CURRENT ASSETS 36,565,051 19,947,116
PROPERTY AND EQUIPMENT, at cost less accumulated depreciation of
$1,472,850 in 2003 and $846,915 in 2002 1,096,423 574,657
OTHER ASSETS
Other non-current assets 1,273,820 881,423
----------- -----------
TOTAL OTHER ASSETS 1,273,820 881,423
----------- -----------
TOTAL ASSETS $38,935,294 $21,403,196
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
CURRENT LIABILITIES
Bank overdraft 316,646 --
Accounts payable $ 8,486,009 $ 1,846,238
Accrued expenses 1,443,406 1,289,597
Due to related party 400,000 --
Revolving credit facility 6,782,824 --
Income taxes payable 3,821,045 2,041,928
----------- -----------
TOTAL CURRENT LIABILITIES 21,249,930 5,177,763
----------- -----------
SHAREHOLDERS' EQUITY
Preferred stock, $1.00 par value; 1,000,000 shares
authorized, no shares issued and outstanding -- --
Common stock, Class A, $.01 par value; 100,000 shares
authorized; no shares issued and outstanding -- --
Common stock, $0.01 par value; 18,900,000 shares authorized;
8,171,678 and 8,020,027 shares issued and outstanding 81,717 80,200
Additional paid-in capital 4,843,430 4,602,828
Retained earnings 12,760,217 11,542,405
----------- -----------
TOTAL SHAREHOLDERS' EQUITY 17,685,364 16,225,433
----------- -----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $38,935,294 $21,403,196
=========== ===========
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-12
THE SINGING MACHINE COMPANY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF EARNINGS
For the Years Ended
March 31, March 31, March 31,
2003 2002 2001
------------ ------------ ------------
(as restated) (as restated)
(Note 3) (Note 3)
NET SALES $ 95,613,766 $ 62,475,753 $ 34,875,351
COST OF SALES 72,329,035 40,852,840 22,159,051
------------ ------------ ------------
GROSS PROFIT 23,284,731 21,622,913 12,716,300
OPERATING EXPENSES
Advertising 5,032,367 2,377,638 921,359
Commissions 997,529 1,294,543 837,222
Compensation 3,637,559 2,486,547 1,916,612
Freight & Handling 2,112,435 1,242,910 882,610
Royalty Expense 2,257,653 1,862,116 148,643
Selling, general & administrative expenses 7,632,958 4,123,779 2,982,261
------------ ------------ ------------
TOTAL OPERATING EXPENSES 21,670,501 13,387,533 7,688,707
------------ ------------ ------------
EARNINGS FROM OPERATIONS 1,614,230 8,235,380 5,027,593
OTHER INCOME (EXPENSES)
Other income 196,537 215,840 32,617
Interest income 11,943 16,934 50,242
Interest expense (406,126) (112,123) (424,104)
Stock based guarantee fees -- (171,472) (267,029)
Factoring fees -- -- (231,298)
------------ ------------ ------------
NET OTHER EXPENSES (197,646) (50,821) (839,572)
EARNINGS BEFORE INCOME TAX 1,416,584 8,184,559 4,188,021
PROVISION FOR INCOME TAX 198,772 1,895,494 491,744
------------ ------------ ------------
NET EARNINGS $ 1,217,812 $ 6,289,065 $ 3,696,277
============ ============ ============
EARNINGS PER COMMON SHARE:
Basic $ 0.15 $ 0.88 $ 0.59
Diluted $ 0.14 $ 0.79 $ 0.50
WEIGHTED AVERAGE COMMON AND COMMON EQUIVALENT SHARES:
Basic 8,114,330 7,159,142 6,291,792
Diluted 8,931,385 7,943,473 7,457,173
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-13
THE SINGING MACHINE COMPANY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
PREFERRED STOCK COMMON STOCK
---------------------------- -----------------------------
SHARES AMOUNT SHARES AMOUNT
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2000 1,000,000 $ 1,000,000 4,541,430 $ 45,414
Net earnings, as restated -- -- -- --
Conversion of preferred stock (1,000,000) (1,000,000) 1,500,000 15,000
Exercise of warrants -- -- 570,000 5,700
Exercise of employee stock
options -- -- 2,250 23
Cancellation of shares -- -- (75,000) (750)
Warrants issued for services and
as loan fees -- -- -- --
Amortization of deferred
guarantee fees -- -- -- --
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2001 -- -- 6,538,680 65,387
Net earnings, as restated -- -- -- --
Exercise of warrants -- -- 581,100 5,811
Exercise of employee stock
options -- -- 900,525 9,005
Fractional share adjustment
pursuant to 3:2 stock split -- -- (278) (3)
Amortization of deferred
guarantee fees -- -- -- --
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2002 -- -- 8,020,027 80,200
Net earnings, as restated -- -- -- --
Exercise of warrants -- -- 52,500 525
Exercise of employee stock
options -- -- 99,151 992
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2003 -- $ -- 8,171,678 $ 81,717
============ ============ ============ ============
[RESTUBBED]
DEFERRED
PAID IN RETAINED GUARANTEE
CAPITAL EARNINGS FEES TOTAL
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2000 $ 1,703,910 $ 1,557,063 $ (400,101) $ 3,906,286
Net earnings, as restated -- 3,696,277 -- 3,696,277
Conversion of preferred stock 985,000 -- -- --
Exercise of warrants 574,300 -- -- 580,000
Exercise of employee stock
options 622 -- -- 645
Cancellation of shares 750 -- -- --
Warrants issued for services and
as loan fees 38,400 -- -- 38,400
Amortization of deferred
guarantee fees -- -- 228,629 228,629
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2001 3,302,982 5,253,340 (171,472) 8,450,237
Net earnings, as restated -- 6,289,065 -- 6,289,065
Exercise of warrants 584,239 -- -- 590,050
Exercise of employee stock
options 720,135 -- -- 729,140
Fractional share adjustment
pursuant to 3:2 stock split (4,528) -- -- (4,531)
Amortization of deferred
guarantee fees -- -- 171,472 171,472
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2002, 4,602,828 11,542,405 -- 16,225,433
Net earnings, as restated -- 1,217,812 -- 1,217,812
Exercise of warrants 47,600 -- -- 48,125
Exercise of employee stock
options 193,002 -- -- 193,994
------------ ------------ ------------ ------------
BALANCE AT MARCH 31, 2003 $ 4,843,430 $ 12,760,217 $ -- $ 17,685,364
============ ============ ============ ============
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS
F-14
THE SINGING MACHINE COMPANY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEARS ENDED MARCH 31,
--------------------------------------------
2003 2002 2001
------------ ------------ ------------
(as restated) (as restated)
(Note 3) (Note 3)
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings $ 1,217,812 $ 6,289,065 $ 3,696,277
Adjustments to reconcile net earnings to net cash (used in)
provided by operating activities:
Depreciation and amortization 622,298 394,456 301,064
Stock based expenses -- 171,472 267,029
Bad debt 393,737 45,078 85,302
Provision for inventory losses 3,715,357 -- --
Deferred tax benefit (1,734,194) -- --
Changes in assets and liabilities:
(Increase) decrease in:
Accounts Receivable (2,619,778) (2,626,329) (312,916)
Restricted cash (324,727) (513,684) --
Due from manufacturer (603,573) 210,798 (699,096)
Inventories (19,635,351) (4,460,891) (3,326,255)
Prepaid Expenses and other assets (1,453,685) (444,004) (394,176)
Increase (decrease) in:
Accounts payable 6,639,771 1,364,158 467,491
Accrued expenses 153,809 199,445 672,342
Bank Overdraft 316,646 -- --
Income taxes payable 1,779,117 1,811,439 479,750
------------ ------------ ------------
Net Cash (Used in) Provided by Operating Activities (11,532,761) 2,441,003 1,236,812
------------ ------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment (1,144,064) (613,691) (373,409)
Proceeds from investment in factor -- 933,407 --
Proceeds from repayment of related party loans -- 125,117 386,261
Investment in and Advances in unconsolidated subsidiary -- 298,900 (374,730)
------------ ------------ ------------
Net cash (used in) provided by Investing Activities (1,144,064) 743,733 (361,878)
------------ ------------ ------------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from revolving credit facility 47,825,725 21,856,653 600,000
Repayments on revolving credit facility (41,042,901) (21,856,653) (600,000)
Proceeds from related party loan 400,000 -- --
Proceeds from exercise of stock options and warrants 242,119 1,319,190 580,645
Due from factor -- -- (818,206)
------------ ------------ ------------
Net cash provided by (used in) Financing Activities 7,424,943 1,319,190 (237,561)
------------ ------------ ------------
(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (5,251,882) 4,503,926 637,373
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 5,520,147 1,016,221 378,848
------------ ------------ ------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 268,265 $ 5,520,147 $ 1,016,221
============ ============ ============
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the year for interest $ 406,126 $ 112,123 $ 424,104
============ ============ ============
Cash paid during the year for income taxes $ 153,849 $ 102,415 $ 11,994
============ ============ ============
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE FINANCIAL STATEMENTS.
F-15
THE SINGING MACHINE COMPANY, INC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - SUMMARY OF ACCOUNTING POLICIES
OVERVIEW
The Singing Machine Company, Inc., a Delaware corporation, and
Subsidiary (the "Company", or "The Singing Machine") are primarily engaged in
the production, marketing, and sale of consumer karaoke audio equipment,
accessories, and musical recordings. The products are sold directly to
distributors and retail customers.
The preparation of The Singing Machine's financial statements in
conformity with accounting principles generally accepted in the United States of
America requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities at the date of the financial
statements and revenues and expenses during the period. Future events and their
effects cannot be determined with absolute certainty; therefore, the
determination of estimates requires the exercise of judgment. Actual results
inevitably will differ from those estimates, and such differences may be
material to the Company's financial statements. Management evaluates its
estimates and assumptions continually. These estimates and assumptions are based
on historical experience and other factors that are believed to be reasonable
under the circumstances. These estimates and The Singing Machine's actual
results are subject to the risk factors listed in Quantitative and Qualitative
Disclosures About Market Risk Section of the Form 10-K for the year ended March
31, 2003.
The management of the Company believes that a higher degree of judgment
or complexity is involved in the following areas:
COLLECTIBILITY OF ACCOUNTS RECEIVABLE. The Singing Machine's allowance for
doubtful accounts is based on management's estimates of the creditworthiness of
its customers, current economic conditions and historical information, and, in
the opinion of management, is believed to be an amount sufficient to respond to
normal business conditions. Management sets 100% reserves for customers in
bankruptcy and other reserves based upon historical collection experience.
Should business conditions deteriorate or any major customer default on its
obligations to the Company, this allowance may need to be significantly
increased, which would have a negative impact on operations.
RESERVES ON INVENTORIES. The Singing Machine establishes a reserve on
inventory based on the expected net realizable value of inventory on an item by
item basis when it is apparent that the expected realizable value of an
inventory item falls below its original cost. A charge to cost of sales results
when the estimated net realizable value of specific inventory items declines
below cost. Management regularly reviews the Company's investment in inventories
for such declines in value.
INCOME TAXES. Significant management judgment is required in developing
The Singing Machine's provision for income taxes, including the determination of
foreign tax liabilities, deferred tax assets and liabilities and any valuation
allowances that might be required against the deferred tax assets. At March 31,
2003 and 2002, The Singing Machine had net deferred tax assets of $1.9 million
and $191 thousand, respectively. Management evaluates its ability to realize its
deferred tax assets on a quarterly basis and adjusts its valuation allowance
when it believes that it is more likely than not that the asset will not be
realized. There is no related valuation allowance at March 31, 2003 and 2002.
The Company's Subsidiary has applied for an exemption of income tax in
Hong Kong. Therefore, no taxes have been expensed or provided for at the
Subsidiary level. Although no decision has been reached by the Hong Kong
governing body, the Company has reached the decision to provide for the
possibility that the exemption could be denied and accordingly has recorded a
provision in fiscal 2003, 2002, and 2001.
The Company constructively repatriated approximately $5.6 million, $5.7
million and $0 from its foreign operations in 2003, 2002 and 2001, respectively.
Accordingly, these earnings were treated as a deemed dividend and were taxed
using U.S. statutory rates. No provision has been made for U.S. taxes on the
remaining undistributed earnings of the Company's foreign subsidiary of
approximately $3.6 million at March 31, 2003 and $1.9 million at March 31, 2002,
as it is anticipated that such earnings would be permanently reinvested in their
operations.
The Company operates within multiple taxing jurisdictions and is
subject to audit in those jurisdictions. Because of the complex issues involved,
any claims can require an extended period to resolve. In management's opinion,
adequate provisions for income taxes have been made.
F-16
OTHER ESTIMATES. The Singing Machine makes other estimates in the
ordinary course of business relating to sales returns and allowances, and
reserves for promotional incentives. Historically, past changes to these
estimates have not had a material impact on the Company's financial condition.
However, circumstances could change which may alter future expectations.
THE FOLLOWING ARE THE COMPANY'S REMAINING ACCOUNTING POLICIES.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of The
Singing Machine Company, Inc. and its wholly-owned Hong Kong Subsidiary,
International SMC (HK) Limited ("Hong Kong Subsidiary"). All intercompany
accounts and transactions have been eliminated in consolidation.
STOCK SPLITS
On March 15, 2002, the Company effected a 3 for 2 stock split. All
share and per share data have been retroactively restated in the accompanying
consolidated financial statements to reflect the split.
FOREIGN CURRENCY TRANSLATION
The functional currency of the Company's Hong Kong Subsidiary is the
local currency. The financial statements of the subsidiary are translated to
United States dollars using year-end rates of exchange for assets and
liabilities, and average rates of exchange for the year for revenues, costs, and
expenses. Net gains and losses resulting from foreign exchange transactions are
included in the consolidated statements of earnings and were not material during
the periods presented. The effect of exchange rate changes on cash at March 31,
2003, 2002 and 2001 were not material.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with maturities of
three months or less at the time of purchase to be cash equivalents. Cash
balances at March 31, 2003 and 2002 include approximately $73,000 and $154,000,
respectively, held in foreign banks by the Hong Kong Subsidiary.
COMPREHENSIVE EARNINGS
Other comprehensive earnings (loss) is defined as the change in equity
of a business enterprise during a period from transactions and other events and
circumstances from non-owner sources, including foreign currency translation
adjustments and unrealized gains and losses on derivatives designated as cash
flow hedges. For the years ended March 31, 2003, 2002 and 2001 comprehensive
earnings was equal to net earnings.
INVENTORIES
Inventories are comprised of electronic karaoke audio equipment,
accessories, and compact discs and are stated at the lower of cost or market, as
determined using the first in, first out method. Inventory reserves were
$3,715,357 and $0 for March 31, 2003 and 2002, respectively. Inventory consigned
to one customer at March 31, 2003 and 2002 was $56,695 and $2,020,172,
respectively. The following table represents the major components of inventory
at March 31.
2003 2002
------------ ------------
Finished goods $ 27,807,763 $ 7,476,237
Inventory in transit 1,101,940 1,798,115
Less Inventory reserve (3,715,357) --
------------ ------------
Total Inventory $ 25,194,346 $ 9,274,352
============ ============
LONG-LIVED ASSETS
The Company reviews long-lived assets for impairment whenever
circumstances and situations change such that there is an indication that the
carrying amounts may not be recoverable. If the undiscounted future cash flows
attributable to the related assets are less than the carrying amount, the
carrying amounts are reduced to fair value and an impairment loss is recognized
in accordance with SFAS No. 144, "Accounting for the Impairment or Disposal of
Long-Lived Assets."
F-17
SHIPPING AND HANDLING COSTS
Shipping and handling costs are classified as a separate operational
expense and those billed to customers are recorded as revenue on the statement
of earnings.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost, less accumulated
depreciation and amortization. Expenditures for repairs and maintenance are
charged to expense as incurred. Depreciation is provided for in amounts
sufficient to relate the cost of depreciable assets to their estimated useful
lives using accelerated and straight-line methods.
RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform to the
current year presentation.
DUE TO RELATED PARTY
On March 4, 2003, one of the Company's directors advanced $400,000 to
the Company's Hong Kong subsidiary, which used the funds to pay a debt with a
trade creditor. The Company was to repay this loan by May 4, 2003 and the loan
bore interest at the rate of 8% per annum. The Company repaid $200,000 of the
loan on May 4, 2003 and the director has agreed to extend the remaining balance
until October 31, 2003.
REVENUE RECOGNITION
Revenue from the sale of equipment, accessories, and musical recordings
are recognized upon the later of (a) the time of shipment or (b) when title
passes to the customers, all significant contractual obligations have been
satisfied and collection of the resulting receivable is reasonably assured.
Revenues from sales of consigned inventory are recognized upon sale of the
product by the consignee. Net sales are comprised of gross sales net of a
provision for actual and estimated future returns, discounts and volume rebates.
DUE FROM MANUFACTURER
The Company's Hong Kong Subsidiary operates as an intermediary to
purchase karaoke hardware from factories located in China on behalf of the
Company. A manufacturer affiliated with a former director of the Company
credited the Company for returns of machines to the factory for rework. The
manufacturer also credited the Company for volume incentive rebates on purchases
in fiscal 2003. The balance as of March 31, 2003 was $1,091,871.
STOCK BASED COMPENSATION
The Company accounts for stock options issued to employees using the
intrinsic value method in accordance with the provisions of Accounting
Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to
Employees," and related interpretations. As such, compensation cost is measured
on the date of grant as the excess of the current market price of the underlying
stock over the exercise price. Such compensation amounts are amortized over the
respective vesting periods of the option grant. The Company applied the
disclosure provisions of Statement of Financial Accounting Standards No. 148,
"Accounting for Stock-Based Compensation-Transition and Disclosure an amendment
of FASB Statement No. 148", which permits entities to provide pro forma net
earnings (loss) and pro forma earnings (loss) per share disclosures for employee
stock option grants as if the fair-valued based method defined in SFAS No. 123
had been applied to options granted.
Had compensation cost for the Company's stock-based compensation plan
been determined using the fair value method for awards under that plan,
consistent with Statement of Financial Accounting Standards (SFAS) No 123,
"Accounting for Stock Based Compensation" (Statement No. 123), the Company's net
earnings would have been changed to the pro-forma amounts indicated below for
the years ended March 31:
2003 2002 2001
---- ---- ----
(as restated) (as restated)
Net earnings As reported $1,217,812 $6,289,065 $3,696,277
Pro forma ($522,812) $6,173,576 $3,696,277
Net earnings per share - basic As reported $0.15 $0.88 $0.59
Pro forma ($0.06) $0.86 $0.59
Net earnings per share - diluted As reported $0.14 $0.79 $0.50
Pro forma ($0.06) $0.78 $0.50
F-18
The effect of applying Statement No. 123 is not likely to be
representative of the effects on reported net earnings for future years due to,
among other things, the effects of vesting.
For stock options and warrants issued to consultants, the Company
applies the fair value method of accounting as prescribed by SFAS 123.
Accordingly, consulting expense of $38,400 was charged to operations in 2001.
There was no consulting expense relating to grants in 2003 and 2002.
For financial statement disclosure purposes and for purposes of valuing
stock options and warrants issued to consultants, the fair market value of each
stock option granted was estimated on the date of grant using the Black-Scholes
Option-Pricing Model in accordance with SFAS 123 using the following
weighted-average assumptions:
Fiscal 2003: expected dividend yield 0%, risk-free interest
rate of 4%, volatility 71% and expected term of three years.
Fiscal 2002: expected dividend yield 0%, risk-free interest
rate of 6.08% to 6.81%, volatility 42% and expected term of two years.
Fiscal 2001: no options were issued; therefore there would be
no change in net earnings
ADVERTISING
Costs incurred for producing and communicating advertising of the
Company, are charged to operations as incurred. The Company has cooperative
advertising arrangements with its vendors and accrues the cost of advertising as
a selling expense, calculated on the related revenues. Advertising expense for
the years ended March 31, 2003, 2002 and 2001 was $5,032,367, $2,377,638 and
$921,359, respectively.
RESEARCH AND DEVELOPMENT COSTS
All research and development costs are charged to the results of
operations when they are incurred. These expenses are shown in the selling,
general & administrative expenses on the consolidated statements of earnings.
For the years ended March 31, 2003, 2002 and 2001, the amounts expensed were
$674,925, $181,866 and $55,376, respectively.
EARNINGS PER SHARE
In accordance with Statement of Financial Accounting Standards No. 128,
"Earnings per Share", basic earnings per share is computed by dividing the net
earnings for the period by the weighted average number of common shares
outstanding. Diluted earnings per share is computed by dividing net earnings by
the weighted average number of common shares outstanding including the effect of
common stock equivalents.
The following table presents a reconciliation of basic and diluted
earnings per share:
2003 2002 2001
---- ---- ----
(as restated) (as restated)
Net earnings $1,217,812 $6,289,065 $3,696,277
Income available to common shares $1,217,812 $6,289,065 $3,696,277
Weighted average shares outstanding - basic 8,114,330 7,159,142 6,291,792
Earnings per share - Basic $ 0.15 $ 0.88 $ 0.59
========== ========== ==========
Income available to common shares $1,217,812 $6,289,065 $3,696,277
Weighted average shares outstanding - basic 8,114,330 7,159,142 6,291,792
Effect of dilutive securities:
Stock options 817,055 784,331 1,127,555
Warrants -- -- 37,826
---------- ---------- ----------
Weighted average shares outstanding - diluted 8,931,385 7,943,473 7,457,173
Earnings per share - Diluted $ 0.14 $ 0.79 $ 0.50
========== ========== ==========
In 2003, 2002 and 2001, 90,000, 0 and 2,529,000 common stock
equivalents (as restated for the 3 for 2 stock split) with exercise prices
greater than $10.66 in fiscal 2003 and $4.11 in fiscal 2001 were not included in
the computation of diluted earnings per share as their effect would have been
antidilutive.
F-19
FAIR VALUE OF FINANCIAL INSTRUMENTS
Statement of Financial Accounting Standards No. 107, "Disclosures about
Fair Value of Financial Instruments," requires disclosures of information about
the fair value of certain financial instruments for which it is practicable to
estimate that value. For purposes of this disclosure, the fair value of a
financial instrument is the amount at which the instrument could be exchanged in
a current transaction between willing parties, other than in a forced sale or
liquidation.
The carrying amounts of the Company's short-term financial instruments,
including accounts receivable, accounts payable, accrued expenses, revolving
credit facility and income taxes payable, approximate fair value due to the
relatively short period to maturity for these instruments.
RECENT ACCOUNTING PRONOUNCEMENTS
In August 2001, the FASB issued SFAS No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets." SFAS No. 144 supersedes SFAS No.
121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of." SFAS No. 144 retained substantially all of the
requirements of SFAS No. 121 while resolving certain implementation issues. SFAS
No. 144 is effective for fiscal years beginning after December 15, 2001. The
impact of adopting SFAS No. 144 was not material.
In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB
Statement No. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical
Corrections." Under Statement No. 4, all gains and losses from extinguishments
of debt were required to be aggregated and, if material, classified as an
extraordinary item, net of related income tax effect. This Statement eliminates
Statement No. 4 and as a result, gains and losses from extinguishment of debt
should be classified as extraordinary items only if they meet the criteria in
Accounting Principles Board Opinion 30, "Reporting the Results of Operations -
Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary,
Unusual and Infrequently Occurring Events and Transactions." Additionally, this
Statement amends SFAS No. 13, "Accounting for Leases," such that lease
modifications that have economic effects similar to sale-leaseback transactions
be accounted for in a similar manner as a sale- leaseback. This Statement is
generally effective for financial statements issued on or after May 15, 2002.
The impact of adopting SFAS No. 145 was not material to the Company.
In July 2002, the FASB issued Statement No. 146, "Accounting for
Restructuring Costs," ("SFAS 146"). SFAS 146 applies to costs associated with an
exit activity (including restructuring) or with a disposal of long-lived assets.
Those activities can include eliminating or reducing product lines, terminating
employees and contracts and relocating plant facilities or personnel. SFAS 146
is effective prospectively for exit or disposal activities initiated after
December 31, 2002, with earlier adoption encouraged. The adoption of this
standard did not a material impact on the financial statements.
In December 2002, the FASB issued Statement No. 148, "Accounting for
Stock-Based Compensation-Transition and Disclosure an amendment of FASB
Statement No. 123" ("SFAS 143"). SFAS 148 amends FASB Statement No. 123,
"Accounting for Stock-Based Compensation", to provide alternative methods of
transition for an entity that voluntarily changes to the fair value based method
of accounting for stock-based employee compensation and to require prominent
disclosures about the effects on reported net earnings of an entity's accounting
policy decisions with respect to stock-based employee compensation. SFAS 148
also amends APB Opinion No. 28, "Interim Financial Reporting," to require
disclosures about those effects in interim financial information. The Singing
Machine currently accounts for its stock-based compensation awards to employees
and directors, under accounting prescribed by Accounting Principles Board
Opinion No. 25 and provides the disclosures required by SFAS No. 148. The
Singing Machine currently intends to continue to account for its stock-based
compensation awards to employees and directors using the intrinsic value method
of accounting as prescribed by Accounting Principles Board Opinion No. 25.
In December 2002, the FASB issued Interpretation 45 (FIN 45),
Guarantor's Accounting and Disclosure Requirements for Guarantees, Including
Indirect Guarantees of Indebtedness of Others. For a guarantee subject to FASB
Interpretation 45, a guarantor is required to:
o measure and recognize the fair value of the guarantee at inception (for many
guarantees, fair value will be determined using a present value method); and
o provide new disclosures regarding the nature of any guarantees, the maximum
potential amount of future guarantee payments, the current carrying amount of
the guarantee liability, and the nature of any recourse provisions or assets
held as collateral that could be liquidated and allow the guarantor to
recover all or a portion of its payments in the event guarantee payments are
required.
F-20
The disclosure requirement of this Interpretation is effective for
financial statements for fiscal years ending after December 15, 2002 and did not
have a material effect on the Company's financial statements. The initial
recognition and measurement provision are effective prospectively for guarantees
issued or modified on or after January 1, 2003 and the Company does not believe
that the adoption of these provisions will have a material impact on the
Company's financial statements.
In January 2003, the FASB issued Interpretation No. 46, "Consolidation
of Variable Interest Entities (and Interpretation of ARB No. 51)" ("FIN 46").
FIN 46 addresses consolidation by business enterprises of certain variable
interest entities, commonly referred to as special purpose entities. The
adoption of FIN 46 did not have a material effect on the Company's financial
statement presentation or disclosure.
NOTE 2 - GOING CONCERN
The accompanying consolidated financial statements have been prepared
in conformity with accounting principles generally accepted in the United States
of America, which contemplate continuation of the Company as a going concern.
On March 14, 2003, the Company was notified of its violation of the net
worth covenant of its Loan and Security Agreement (the "Agreement") with its
commercial lender and the Company was declared in default under the Agreement.
The lender amended the Agreement on June 30, 2003, extending the loan until July
31, 2003, but did not waive the condition of default. This condition of default
raises substantial doubt about the Company's ability to continue as a going
concern.
The Company is attempting to restructure and extend its revolving
credit facility. Based upon cash flow projections, the Company believes the
anticipated cash flow from operations will be sufficient to finance the
Company's operating needs until inventory is sold and the receivables
subsequently collected, provided that the bank does not call the loan. There can
be no assurances that forecasted results will be achieved or that additional
financing will be obtained. The financial statements do not include any
adjustments relating to the recoverability and classification of asset amounts
or the amounts and classification of liabilities that might be necessary should
the Company be unable to continue as a going concern.
Although the Company had a larger than normal amount of currently
saleable inventory at March 31, 2003 (based on the Company's recent sales trends
and industry turnover standards), the Company has developed a fiscal 2004 sales
plan that it believes will allow it to sell such inventory and recover the
majority of its costs in the normal course of business. The Company has reduced
selling prices on certain inventory items and accordingly, in the fourth quarter
of fiscal 2003, the Company has taken a provision for loss against this
inventory.
NOTE 3 - RESTATEMENT OF FINANCIAL STATEMENTS FOR THE FISCAL YEARS 2002 AND 2001
In June 2003, management revised its position on taxation of its
subsidiary's income by the United States and by the Hong Kong tax authorities.
With regard to taxation in Hong Kong, the Company's subsidiary had
previously applied for a Hong Kong offshore claim income tax exemption based on
the locality of profits of the Hong Kong subsidiary. Management believed that
the exemption would be approved because the source of all profits of the Hong
Kong subsidiary is from exporting to customers outside of Hong Kong.
Accordingly, no provision for income taxes was provided in the consolidated
financial statements as of March 31, 2002 and 2001. However, full disclosure was
previously reflected in the audited financial statements for years ended March
31, 2002 and 2001 of the estimated amount that would be due to the Hong Kong tax
authority should the exemption be denied. Management is continuing its exemption
application process. However, due to the extended period of time that the
application has been outstanding, as well as management's reassessment of the
probability that the application will be approved, management has determined to
restate the 2002 and 2001 consolidated financial statements to provide for such
taxes. The effect of such restatement is to increase income tax expense by
$748,672 and $468,424 in fiscal 2002 and 2001, respectively. However, the
Company can claim United States foreign tax credits in 2002 for these Hong Kong
taxes, which is reflected in the final restated amounts.
With regard to United States taxation of foreign income, the Company
had originally taken the position that the foreign income of the Hong Kong
subsidiary qualified for a deferral under the Internal Revenue Code allowing for
such income to be indefinitely deferred and not taxed in the United States until
such income is repatriated. Full disclosure of the amount and nature of the
indefinite deferral for fiscal year 2002 was reflected in the income tax
footnote of the consolidated financial statements for that year. The internal
revenue code, regulations and case law regarding international income taxation
is quite complex and subject to interpretation. Each case is determined based on
the individual facts and circumstances. Due to certain inter-company loans made
in 2002 and 2003, the profits previously considered to be indefinitely deferred
became partially taxable as "deemed dividends" under section 956 of the Internal
Revenue Code. Although certain arguments against the imposition of a "deemed
dividend" may be asserted, management has determined to restate the fiscal year
2002 consolidated financial statements based on its reassessment of its original
position. The effect of such restatement is to increase income tax expense by
$1,027,545 in fiscal year 2002, which includes the utilization of the foreign
tax credits referred to above.
The net effect of the above two adjustments is to decrease net income
by $1,776,217 and $468,424 in fiscal 2002 and 2001. The net effect on net income
per share is to decrease net income per share basic and diluted by $0.25 and
$0.23, respectively in fiscal 2002 and decrease net income per share basic and
diluted by $0.07 and $0.06, respectively in fiscal 2001.
F-21
NOTE 4 - ACCOUNTS RECEIVABLE AND FACTOR AGREEMENT
During 2001, the Company sold certain trade accounts receivable,
primarily without recourse, pursuant to a factoring agreement. The Company
terminated the factoring agreement in April 2001 upon obtaining a new Loan and
Security Agreement with a commercial lender. (See Note 8) For the year ending
March 31, 2001, the Company incurred $429,509 in factoring fees and interest.
The portion representing factor interest expense was $198,208 of the $429,506.
During 2000, two officers of the Company entered into guarantee
agreements related to the factor agreement resulting in deferred guarantee fees
of $400,101, which was being amortized over the term of the factor agreement,
which expired on December 31, 2001. Upon termination of the factor agreement,
the unamortized deferred guarantee fees of $171,472 were charged to operations
as amortization in fiscal 2002.
NOTE 5 - SALE OF UNCONSOLIDATED SUBSIDIARY
In November 2000, the Company closed on an acquisition of 60% of the
ordinary voting shares of a Hong Kong toy company for a total purchase price of
$170,000. The Company believed that the acquiree had agreed to extend the
effective date to June 2001, but a dispute arose and the Company committed to
dispose of the entire investment. Accordingly, pursuant to Statement of
Financial Accounting Standards No. 94 "Consolidation of All Majority-Owned
Subsidiaries," the Company treated the control of the subsidiary as temporary
and recorded the investment of $170,000 and advances of $220,661 at cost. The
Company completed a contract selling the 60% interest on September 11, 2001. The
transaction resulted in a net loss on investment of $48,912 included in selling,
general, and administrative expenses. The advances due at March 31, 2002 were
$75,831 and were included in prepaid and other current assets. There were no
advances due at March 31, 2003.
NOTE 6 - PROPERTY AND EQUIPMENT
A summary of property and equipment at March 31, 2003 and 2002 is as
follows:
USEFUL LIVES 2003 2002
Computer and office equipment 5 years $ 313,221 $ 230,025
Furniture and fixtures 5 - 7 years 341,777 106,164
Leasehold improvements * 110,841 62,483
Molds and tooling 3 years 1,803,434 1,022,900
----------- ----------
2,569,273 1,421,572
Less: accumulated depreciation (1,472,850) (846,915)
----------- ----------
Total net property and equipment $1,096,423 $574,657
=========== ==========
* Shorter of remaining term of lease or useful life
NOTE 7 - RESTRICTED CASH
The Company, through its Hong Kong subsidiary, maintains a letter of
credit facility and short term loan with a major international bank. The
Company's subsidiary is required to maintain a separate deposit account in the
amount of $838,411 and $513,684 at March 31, 2003 and 2002, respectively. This
amount is shown as restricted cash at March 31, 2003 and 2002.
NOTE 8 - LOANS AND LETTERS OF CREDIT
CREDIT FACILITY
The Company's Hong Kong Subsidiary maintains separate credit facilities
at two international banks. The maximum credit available under these agreements
is $5.5 million U.S. dollars. The primary purpose of the facilities is to
provide the Subsidiary with the following abilities:
o Overdraft facilities
o Issuance and negotiation of letters of credit, both regular and
discrepant
o Trust receipts
o A Company credit card
The facilities do not have an expiration date, but are considered short
term debt. Interest on these facilities range from prime plus 2 to prime plus
2.5. At March 31, the interest rate associated with these lines was 6.25% to
6.5%. The outstanding amount on these facilities at March 31, 2003, was $0 and
there was no availability.
F-22
LOAN AND SECURITY AGREEMENT
On April 26, 2001, the Company executed a Loan and Security Agreement
(the "Agreement") with a commercial lender (the "Lender"). This loan was last
amended on June 30, 2003. The following is a description of the terms as
amended.
The Lender will advance up to 70% of the Company's eligible accounts
receivable, plus up to 20% of the eligible inventory up to $6,000,000, plus up
to 40% of the commercial letters of credit opened for the purchase of eligible
inventory up to $3 million, less reserves at the discretion of the lender.
The outstanding loan limit varies between zero and $10,000,000, as
stipulated in the Agreement. The Lender also provides the Company the ability to
issue commercial letters of credit up to $3,000,000, which shall reduce the loan
limits above. The loans bear interest at the commercial lender's prime rate plus
0.5% and an annual fee equal to 1% of the maximum loan amount or $100,000 is
payable. All amounts under the loan facility are due within 90 days of demand.
The loans are secured by a first lien on all present and future assets of the
Company except for certain tooling located at a vendor in China. This amendment
expires July 31, 2003.
The Agreement contains covenants including a restriction on the payment
of dividends as well as a financial covenant stipulating a minimum tangible net
worth of $30,000,000 as of December 31, 2002 with escalations as defined in the
Agreement. On March 15, 2003, the lender notified the Company that they are in
default of this covenant and the agreement. The balance outstanding at March 31,
2003 was $6,782,824 and was classified as a current liability under revolving
credit facility on the balance sheet. At March 31, 2003, the Company was over
advanced under the agreement by approximately $3 million. The June 30, 2003
amendment gave the Company an additional $4.5 million in availability which gave
the Company working capital and cured the over advance; however, the Amendment
requires the Company to raise $2 million in subordinated debt. Although the
Company has only raised $1 million of the required $2 million by the due date,
the Company believes that the commercial lender will continue to support the
increased availability under the Amendment.
The Company is currently negotiating a restructuring of the agreement
with the lender.
NOTE 9 - COMMITMENTS AND CONTINGENCIES
LEASES
The Company has entered into various operating lease agreements for
office and warehouse facilities in Coconut Creek, Florida, Compton, California,
Rancho Dominguez, California, New York, New York and Kowloon, Hong Kong. The
leases expire at varying dates. Rent expense for fiscal 2003, 2002 and 2001 was
$901,251, $333,751 and 142,472, respectively.
In addition, the Company maintains various warehouse and computer
equipment operating leases.
Future minimum lease payments under property and equipment leases with
terms exceeding one year as of March 31, 2003 are as follows:
-------------------- -------------------- -- -----------------------
PROPERTY LEASES EQUIPMENT LEASES
-------------------- -------------------- -- -----------------------
Year ending March 31:
-------------------- -------------------- -- -----------------------
2004 $1,330,158 $46,525
-------------------- -------------------- -- -----------------------
2005 924,338 19,965
-------------------- -------------------- -- -----------------------
2006 517,071 10,322
-------------------- -------------------- -- -----------------------
2007 495,545 7,969
-------------------- -------------------- -- -----------------------
2008 371,659 1,235
-------------------- -------------------- -- -----------------------
$3,638,771 $86,016
========================================= -- =======================
GUARANTEES
The Company's Subsidiary guarantees the revolving credit facility at
the lender by a pledge of 60% of its common stock. The Company also in turn
guarantees all lines of credit of the Subsidiary.
EMPLOYMENT AGREEMENTS
The Company has employment contracts with four key officers as of March
31, 2003. The agreements provide for base salaries, with annual cost of living
adjustments and travel allowances. The agreements also provide for aggregate
Board approved performance bonuses of up to 10% of net earnings before those
performance bonuses, interest, and taxes. During fiscal 2003, 2002 and 2001, the
bonus percentages were 0%, 5% and 10%, respectively.
F-23
MERCHANDISE LICENSE AGREEMENTS
On November 1, 2000, as amended on November 29, 2001, as amended on
December 27, 2002, the Company entered into a merchandise license agreement to
license a name, trade name, and logo of a music oriented television network. The
term of the agreement is from November 1, 2000 to December 31, 2003. However,
shipment of related products did not begin until after March 31, 2001.
Accordingly, none of the minimum royalty was charged to operations as of March
31, 2001. The Company pays a royalty rate of a percentage of stipulated sales,
as defined in the agreement, with $686,250 guaranteed minimum royalties for the
term, payable on a scheduled basis as stipulated in the agreement. The initial
minimum royalty guarantee was paid in fiscal year 2002. The new amendment places
an additional guarantee for calendar year 2003 of $1,500,000, payable on a
scheduled basis as follows: $500,000 on the signing of the amendment, December
27, 2002, $333,333 on June 30, 2003, $333,333 on September 30, 2003 and $333,334
on December 31, 2003. Royalty reports are due on a quarterly basis under the
terms of the agreement and the following table represents a summary of the
agreement:
Total Expense Prepaid Balance at March 31 Accrued Expense at March 31
2003 $1,411,403 $355,931 $0
2002 $1,388,813 $0 $126,170
2001 $0 $50,000 $0
On December 1, 2001, the Company entered into an additional agreement
with a division of above licensor for additional license properties and
products. The license term is January 1, 2002 to December 31, 2004 with an
initial stipulated ship date of August 15, 2002. The agreement stipulates a
royalty rate as a percentage of net sales (defined as gross sales less
discounts, allowances and damaged goods returns not to exceed 8% of gross
sales), payable quarterly, with a guaranteed minimum royalty for the license
term of $450,000 payable as follows: $25,000 on execution of agreement, $85,000
on or before September 1, 2002, $85,000 on or before December 1, 2002, $85,000
on or before March 1, 2003, $85,000 on or before June 1, 2003, and $85,000 on or
before September 1, 2003 and the following table represents a summary of the
agreement:
Total Expense Prepaid Balance at March 31 Accrued Expense at March 31
2003 $127,778 $152,222 $0
2002 0 $25,000 $0
2001 0 0 $0
In December 2002, the Company entered into an agreement with a
division of a music and memorabilia restaurant and entertainment chain. The
license term is January 1, 2003 to December 31, 2005. The Company pays a royalty
rate of a percentage of stipulated sales, as defined in the agreement, with a
$250,000 guaranteed minimum royalties for the term, payable on a scheduled basis
as follows: $25,000 on signing of the contract and payments of $25,000 at the
end of each calendar quarter starting March 31, 2003 and ending September 30,
2004, with a final payment of $50,000 due on December 31, 2004 and the following
table represents a summary of the agreement:
Total Expense Prepaid Balance at March 31 Accrued Expense at March 31
2003 $16,656 $33,344 $0
2002 0 0 $0
2001 0 0 $0
In February 2003, the Company entered into an agreement with a
large music and entertainment conglomerate. The license term is April 1, 2003 to
March 31, 2006. The Company pays a royalty rate of a percentage of stipulated
sales, as defined in the agreement, with a $300,000 guaranteed minimum royalties
for the term, payable on a scheduled basis as follows: $25,000 on signing of the
contract, $50,000 on June 30, 2003 and payments of $25,000 at the end of each
calendar quarter starting September 30, 2003 and ending September 30, 2005 and
the following table represents a summary of the agreement:
Total Expense Prepaid Balance at March 31 Accrued Expense at March 31
2003 0 $25,000 $0
2002 0 0 $0
2001 0 0 $0
Guaranteed royalty payments are non-refundable and not recoupable
against other license agreements with the same licensor.
F-24
SIGNIFICANT ESTIMATES
The Company records an accrual for product returns in the normal course
of business. The accrual is estimated based on historical experience and is
recorded as a liability equal to the gross profit on estimated returns. At March
31, 2003 and 2002, the accrual for product returns was $324,422 and $118,488
respectively and are included in accrued expenses on the consolidated balance
sheets.
The Company estimates an allowance for doubtful accounts using the
specific identification method since a majority of accounts receivable are
concentrated with several customers. The allowance for doubtful accounts was
$405,759 and $12,022 at March 31, 2003 and 2002, respectively.
LEGAL MATTERS
CLASS ACTION. From July 2, 2003 through July 8, 2003, six securities
class action lawsuits were filed against The Singing Machine and certain of its
officers and directors in the United States District Court for the Southern
District of Florida on behalf of all persons who purchased The Singing Machine's
securities during the various class action periods specified in the complaints.
The Company expects that all of these actions will be consolidated in the United
States District Court for the Southern District of Florida.
The complaints that have been filed allege violations of Section 10(b)
and Section 20(a) of the Securities Exchange Act of 1934 and Rule 10(b)-5. The
complaints seek compensatory damages, attorney's fees and injunctive relief.
While the specific factual allegations vary slightly in each case, the
complaints generally allege that defendants falsely represented the Company's
financial results for the years ended March 31, 2002 and 2001.
The Company believes that the allegations in these cases are without
merit and the Company intends to vigorously defend these actions. However, as
the outcome of litigation is difficult to predict, significant changes in the
estimated exposures could occur which could have a material affect on the
Company's operations.
OTHER MATTERS. The Company is also subject to various other legal
proceedings and other claims that arise in the ordinary course of its business.
In the opinion of management, the amount of ultimate liability, if any, in
excess of applicable insurance coverage, is not likely to have a material effect
on the financial condition, results of operations or liquidity of the Company.
However, as the outcome of litigation or other legal claims is difficult to
predict, significant changes in the estimated exposures could occur, which could
have a material impact on the Company's operations.
NOTE 10 - STOCKHOLDERS' EQUITY
AMENDMENT TO AUTHORIZED SHARES
During September 2000, the Company filed an amendment to its Articles
of Incorporation decreasing the authorized shares of the Company's common stock
to 18,900,000 shares and 100,000 Class A common shares.
STOCK SPLIT
On March 15, 2002, the Company effected a 3 for 2 stock split. All
share and per share data have been retroactively restated in the accompanying
consolidated financial statements to reflect the split.
PREFERRED STOCK AND WARRANTS
During April 1999, the Company issued a private placement memorandum,
pursuant to Rule 506 of Regulation D of the 1933 Securities Act, as amended, to
offer a minimum of 40 units and a maximum of 50 units of stock and warrants.
Each unit consisted of 30,000 shares of the Company's 9% non-voting convertible
preferred stock and 6,000 common stock purchase warrants. The purchase price for
each unit was $ 27,500. Each share of preferred stock was convertible, at the
option of the holder, into one share of the Company's common stock at any time
after issuance, and was to automatically convert into one share of common stock
on April 1, 2000. All preferred shares automatically converted on April 1, 2000.
Each warrant entitles the holder to purchase one share of the Company's common
stock at $2.00 per share. The warrants expire three years from the private
placement memorandum date. Through June 1999, the maximum number of 50 units had
been sold and $1,375,000 gross funds were raised ($1,331,017 after related
costs), at which time the offer was closed. During 2000, 2001, and 2002, 24,000,
201,000, and 75,000 warrants were converted for $32,000, $268,000, and $100,000,
respectively leaving no warrants outstanding at March 31, 2002.
F-25
COMMON STOCK ISSUANCES
During fiscal 2003, 2002 and 2001, the Company issued the following
shares of stock upon exercise of outstanding options and warrants.
---------- ----------------------------- --------------------------
Number of Shares Issued Proceeds to Company
---------- ----------------------------- --------------------------
2003 151,651 $242,119
---------- ----------------------------- --------------------------
2002 1,481,347 $1,314,659
---------- ----------------------------- --------------------------
2001 572,250 $580,645
---------- ----------------------------- --------------------------
GUARANTEE FEES
During the year ended March 31, 2000, the Company issued 525,000 shares
of common stock to two officers of the Company in exchange for guarantees
related to the Company's factor agreement, and letter of credit agreement. These
guarantee fees totaled $590,625 and were amortized over a period of 31 months.
For the years ended March 31, 2002 and 2001 $228,629 and $361,996 of deferred
fees were charged to operations, respectively. There were no remaining deferred
guarantee fees at March 31, 2002.
During the year ended March 31, 2001, the Company issued 37,500 common
stock options for services and 45,000 common stock warrants to two investors as
loan fees. The fair market value of the options totaling $38,400 was charged to
operations. There were no transactions made in fiscal 2002 and 2003.
STOCK OPTIONS
On June 1, 2001, the Board of Directors approved the 2001 Stock Option
Plan, which replaced the 1994 Stock Option Plan, as amended, (the "Plan"). The
Plan was developed to provide a means whereby directors and selected employees,
officers, consultants, and advisors of the Company may be granted incentive or
non-qualified stock options to purchase common stock of the Company. As of March
31, 2003, the Plan is authorized to grant options up to an aggregate of
1,950,000 shares of the Company's common stock and up to 300,000 shares for any
one individual in any fiscal year. As of March 31, 2003, the Company had granted
745,200 options under the Year 2001 Plan, leaving 1,204,800 options available to
be granted.
In accordance with SFAS 123, for options issued to employees, the
Company applies the intrinsic value method of APB Opinion No. 25 and related
interpretations in accounting for its options issued. The following table sets
forth the issuances of stock options for fiscal 2003, and 2002.
The exercise price of common stock option issuances in 2003 and 2002
was equal to the fair market value on the date of grant. Accordingly, no
compensation cost has been recognized for options issued under the Plan in 2003
or 2002. A summary of the options issued as of March 31, 2003, 2002 and 2001 and
changes during the years is presented below:
NUMBER OF WEIGHTED WEIGHTED WEIGHTED
OPTIONS AVERAGE NUMBER OF AVERAGE NUMBER OF AVERAGE
AND EXERCISE OPTIONS AND EXERCISE OPTIONS AND EXERCISE
WARRANTS PRICE WARRANTS PRICE WARRANTS PRICE
FISCAL YEAR 2003 2002 2001
STOCK OPTIONS:
BALANCE AT BEGINNING OF PERIOD 1,094,475 $2.11 2,433,300 $1.31 1,593,300 $0.67
GRANTED 574,926 $7.88 82,800 $3.92 1,245,750 $2.01
EXERCISED (151,651) $1.63 (1,406,625) $0.87 (371,250) $0.84
Forfeited (4,500) $2.04 (15,000) $2.04 (34,500) $0.92
----------- ------------ ------------
BALANCE AT END OF PERIOD 1,513,250 $4.43 1,094,475 $2.11 2,433,300 $1.31
=========== ============ ============
OPTIONS EXERCISABLE AT END OF 976,250 $2.45 647,738 $2.11 1,435,050 $0.70
PERIOD =========== ============ ============
WEIGHTED AVERAGE FAIR VALUE OF $4.90 $1.54 $0.85
OPTIONS GRANTED DURING THE PERIOD
F-26
The following table summarizes information about employee stock options
and consultant warrants outstanding at March 31, 2003:
Weighted Average
Range of Exercise Number Outstanding at Remaining Contractual Weighted Average Number Exercisable at Weighted Average
Price March 31, 2003 Life Exercise Price March 31, 2003 Exercise Price
$1.11 58,500 1.24 $1.11 58,500 $1.11
$2.04 785,300 3.67 $2.04 785,300 $2.04
$3.27 - $4.23 102,450 3.20 $3.83 102,450 $3.83
$5.60 - $7.26 190,000 5.69 $6.70 0 $0.00
$8.61 - $11.09 377,000 6.76 $9.45 30,000 $11.09
---------- ---------
1,513,250 976,250
========== ==========
NOTE 11 - INCOME TAXES
The Company files separate tax returns for the parent and for the Hong
Kong Subsidiary. The income tax expense (benefit) for federal, foreign, and
state income taxes in the consolidated statement of earnings consisted of the
following components for 2003, 2002 and 2001:
2003 2002 2001
(as restated) (as restated)
Current:
U.S. Federal $ 663,816 $ 1,027,545 $ 21,320
Foreign 1,230,650 748,672 468,424
State 38,500 119,277 2,000
Deferred (1,734,194) 0 0
----------- ----------- -----------
$ 198,772 $ 1,895,494 $ 491,744
=========== =========== ===========
The United States and foreign components of earnings (loss) before
income taxes are as follows:
For the year ended March 31,
------------------------------------------------------
2003 2002 2001
--------------- -------------- --------------
United States $ (5,952,129) $ 3,669,341 $ 1,311,899
Foreign 7,368,713 4,515,218 2,876,122
--------------- -------------- --------------
$ 1,416,584 $ 8,184,559 $ 4,188,021
=============== ============== ==============
The actual tax expense differs from the "expected" tax expense for the
years ended March 31, 2003, 2002 and 2001 (computed by applying the U.S. Federal
Corporate tax rate of 34 percent to income before taxes) as follows:
2003 2002 2001
----------- ----------- -----------
(as restated) (as restated)
Expected tax expense $ 481,880 $ 2,782,750 $ 1,423,927
State income taxes, net of Federal income tax benefit (43,204) 78,723 --
Foreign earnings constructively distributed to the U.S. 1,011,628 1,027,545 --
Change in valuation allowance -- (1,059,089) (609,857)
Tax rate differential on undistributed foreign earnings (1,326,368) (812,739) (517,702)
Other permanent differences 74,836 (121,696) 195,376
----------- ----------- -----------
ACTUAL TAX EXPENSE $ 198,772 $ 1,895,494 $ 491,744
=========== =========== ===========
F-27
The tax effects of temporary differences that give rise to significant
portions of deferred tax assets and liabilities at March 31, 2003 and 2002 are
as follows:
2003 2002
(as restated)
Deferred tax assets:
Inventory differences $ 1,491,021 --
State net operating loss carryforward $ 171,019 $ 89,315
Bad debt reserve 137,958 4,087
Reserve for sales returns 110,303 55,886
Stock based expenses -- 13,056
Amortization of reorganization intangible 28,076 36,400
----------- -----------
Total Gross Deferred Assets 1,938,377 198,744
Deferred tax liability:
Depreciation (12,765) (7,326)
----------- -----------
Net Deferred Tax Asset $ 1,925,612 $ 191,418
=========== ===========
The Company believes that it is more likely than not that the deferred
tax asset will be realized; therefore, no valuation allowance is required.
NOTE 12 - CONCENTRATIONS OF CREDIT RISK, CUSTOMERS, SUPPLIERS, AND FINANCING
The Company derives primarily all of its revenues from retailers of
products in the United States. Financial instruments, which potentially subject
the Company to concentrations of credit risk, consist of accounts receivable.
The Company's allowance for doubtful accounts is based upon management's
estimates and historical experience and reflects the fact that accounts
receivable are concentrated with several large customers whose credit worthiness
have been evaluated by management. At March 31, 2003, 67% of accounts receivable
were due from four customers: two from the U.S. and two International Customers.
Accounts receivable from four customers that individually owed over 10% of
accounts receivable at March 31, 2003 was 22%, 19%, 15% and 11%. The Company
performs ongoing credit evaluations of its customers and generally does not
require collateral.
Revenues derived from five customers in 2003, 2002 and 2001 were 67%,
87% and 78% of revenues, respectively. Revenues derived from three customers in
2003 and 2002, and two customers in 2001, respectively, which individually
purchased greater than 10% of the Company's total revenues, were 21%, 17% and
15% in 2003, 37%, 28%, and 10% in 2002 and 32% and 23% in 2001.
The Company is dependent upon foreign companies for the manufacture of
all of its electronic products. The Company's arrangements with manufacturers
are subject to the risk of doing business abroad, such as import duties, trade
restrictions, work stoppages, foreign currency fluctuations, political
instability, and other factors, which could have an adverse impact on its
business. The Company believes that the loss of any one or more of their
suppliers would not have a long-term material adverse effect because other
manufacturers with whom the Company does business would be able to increase
production to fulfill their requirements. However, the loss of certain suppliers
in the short-term could adversely affect business until alternative supply
arrangements are secured.
During fiscal years 2003, 2002 and 2001, manufacturers in the People's
Republic of China (China) accounted for approximately 94%, 95% and 94%
respectively of the Company's total product purchases, including all of the
Company's hardware purchases.
F-28
The Company finances its sales primarily through a loan facility with
one lender. (See Note 7) Although management believes there are other sources
available, a loss of the current credit facility could be in the short term,
adversely affect operations until an alternate lending arrangement is secured.
This loan, as amended, expires on July 31, 2003.
Net sales derived from the Company's Hong Kong based subsidiary
aggregated $49,268,836 in 2003, $27,176,000 in 2002 and $12,595,800 in 2001. The
carrying value of net assets held by the Company's Hong Kong based subsidiary
was $14,932,175 at March 31, 2003.
NOTE 13 - SEGMENT INFORMATION
The Company operates in one segment and maintains its records
accordingly. The majority of sales to customers outside of the United States are
made by the Company's Subsidiary. Sales by customer geographic region for the
years ended March 31 were as follows:
SALES: 2003 2002 2001
United States $ 76,777,138 $ 62,333,801 $ 34,391,540
Asia 21,310 49,314 --
Australia 814,334 -- --
Canada 919,642 47,565 11,420
Central America 96,836 5,756 --
Europe 15,714,846 -- 433,821
Mexico 1,225,111 -- --
South America 44,549 39,317 38,570
------------ ------------ ------------
Consolidated Net Sales $ 95,613,766 $ 62,475,753 $ 34,875,351
============ ============ ============
LONG LIVED ASSETS:
United States operations $ 570,065 $ 311,590
Hong Kong operations $ 1,800,191 $ 1,144,503
Eliminations (13) (13)
------------ ------------
Consolidated long-lived assets $ 2,370,243 $ 1,456,080
============ ============
The geographic area of sales is based primarily on the location where
the product is delivered.
NOTE 14 - EMPLOYEE BENEFIT PLANS
The Company has a 401(k) plan for its employees to which the Company
makes contributions at rates dependent on the level of each employee's
contributions. Contributions made by the Company are limited to the maximum
allowable for federal income tax purposes. The amounts charged to earnings for
contributions to this plan and administrative costs during the years ended March
31, 2003, 2002 and 2001 totaled $61,466, $41,733 and $8,682, respectively. The
Company does not provide any post employment benefits to retirees.
NOTE 15 - SUBSEQUENT EVENTS
As of July 10, 2003, the Company obtained $1 million in subordinated
debt financing from certain officers, directors and an associate of a director.
The Company has not finalized the terms of this loan; however, the Company has
immediate use and access to the $1 million of funding.
F-29
SUPPLEMENTAL DATA
SCHEDULE I
QUARTERLY FINANCIAL DATA (UNAUDITED)
The following financial information reflects all normal recurring
adjustments that are, in the opinion of management, necessary for a fair
statement of the results of the interim periods. The quarterly results for the
years 2003 and 2002 are set forth in the following table with the assumption
that the restatement of income tax was evenly distributed over each quarter:
Basic Diluted
Earnings Earnings
Net Earnings (Loss) Per (Loss) Per
Sales Gross Profit (Loss) Share Share
2003
First quarter $ 4,264,203 $ 1,273,322 $ (1,358,780) $ (0.17) $ (0.17)
Second quarter 33,044,306 9,754,954 4,837,926 0.6 0.54
Third quarter 49,102,372 14,525,191 3,846,894 0.47 0.43
Fourth quarter 9,202,886 (2,268,736)(1) (6,108,228) (0.75) (0.66)
Total $ 95,613,766 $ 23,284,730 $ 1,217,812 $ 0.15 $ 0.14
2002 (AS RESTATED)
First quarter $ 5,573,228 $ 1,923,199 $ (470,447) $ (0.07) $ (0.07)
Second quarter 15,797,752 5,408,430 1,881,321 0.28 0.25
Third quarter 34,324,556 11,884,855 5,444,081 0.74 0.65
Fourth quarter 6,780,217 2,406,428 (565,890) (0.07) (0.04)
Total $ 62,475,753 $ 21,622,913 $ 6,289,065 $ 0.88 $ 0.79
(1) In the fourth quarter of 2003, the Company took expenses relating to a loss
on a guaranteed margin contract, $2.5 million and a reserve for inventory
loss of $3.7 million. The guaranteed margin contract reduced sales and the
reserve for inventory loss reduced cost of sales.
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
BALANCE AT CHARGED TO REDUCTION TO CREDITED TO BALANCE AT
BEGINNING OF COSTS AND ALLOWANCE FOR COSTS AND END OF
DESCRIPTION PERIOD EXPENSES WRITE OFF EXPENSES PERIOD
YEAR ENDED MARCH 31, 2003
Reserves deducted from assets to which
they apply:
Allowance for doubtful accounts $ 12,022 $ 412,055 $ -- $ (18,318)(1) $ 405,759
Inventory reserves $ -- $ 3,715,357 $ -- $ -- $ 3,715,357
YEAR ENDED MARCH 31, 2002
Reserves deducted from assets to which
they apply:
Allowance for doubtful accounts $ 9,812 $ 45,078 $ (42,868) $ -- $ 12,022
Inventory reserves $ -- $ -- $ -- $ -- $ --
YEAR ENDED MARCH 31, 2001
Reserves deducted from assets to which
they apply:
Allowance for doubtful accounts $ -- $ 85,302 $ (75,490) $ -- $ 9,812
Inventory reserves $ -- $ -- $ -- $ -- $ --
(1) Recoveries of amounts previously written off against the reserve.
F-30
SUPPLEMENTAL DATA
SCHEDULE I
QUARTERLY FINANCIAL DATA (UNAUDITED)
The following financial information reflects all normal recurring adjustments
that are, in the opinion of management, necessary for a fair statement of the
results of the interim periods. The quarterly results for the years 2003 and
2002 are set forth in the following table with the assumption that the
restatement of income tax was evenly distributed over each quarter:
BASIC DILUTED
EARNINGS EARNINGS
NET EARNINGS (LOSS) PER (LOSS) PER
SALES GROSS PROFIT (LOSS) SHARE SHARE
------------ ------------ ------------ ----------- -----------
2003
First quarter $ 4,264,203 $ 1,273,322 $ (1,358,780) $ (0.17) $ (0.17)
Second quarter 33,044,306 9,754,954 4,837,926 0.60 0.54
Third quarter 49,102,372 14,525,191 3,846,894 0.47 0.43
Fourth quarter 9,202,885 (2,268,736)(1) (6,108,228) (0.75) (0.66)
Total $ 95,613,766 $ 23,284,730 $ 1,217,812 $ 0.15 $ 0.14
2002 (AS RESTATED)
First quarter $ 5,573,228 $ 1,923,199 $ (470,447) $ (0.07) $ (0.07)
Second quarter 15,797,752 5,408,430 1,881,321 0.28 0.25
Third quarter 34,324,556 11,884,855 5,444,081 0.74 0.65
Fourth quarter 6,780,217 2,406,429 (565,890) (0.07) (0.04)
Total $ 62,475,753 $ 21,622,913 $ 6,289,065 $ 0.88 $ 0.79
----------
(1) In the fourth quarter of 2003, the Company took expenses relating to a
loss on a guaranteed margin contract, $2.5 million and a reserve for
inventory loss of $3.7 million. The guaranteed margin contract reduced
sales and the reserve for inventory loss reduced cost of sales.
(2) This table makes the assumption that the restatement of income tax was
evenly distributed over each quarter.
F-31
SUPPLEMENTAL DATA
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
BALANCE AT CHARGED TO REDUCTION TO CREDITED TO BALANCE AT
BEGINNING OF COSTS AND ALLOWANCE FOR COSTS AND END OF
DESCRIPTION PERIOD EXPENSES WRITE OFF EXPENSES PERIOD
YEAR ENDED
MARCH 31, 2003
Reserves deducted
from assets to
which they apply:
Allowance
for
doubtful
accounts $ 12,022 $ 412,055 $ -- $ (18,318) (1) $ 405,759
Inventory $ -- $ 3,715,357 $ -- $ -- $ 3,715,357
reserves
YEAR ENDED
MARCH 31, 2002
Reserves deducted
from assets to
which they apply:
Allowance
for
doubtful
accounts $ 9,812 $ 45,078 $ (42,868) $ -- $ 12,022
Inventory $ -- $ -- $ -- $ -- $ --
reserves
YEAR ENDED
MARCH 31, 2001
Reserves deducted
from assets to
which they apply:
Allowance
for
doubtful
accounts $ -- $ 85,302 $ (75,490) $ -- $ 9,812
Inventory $ -- $ -- $ -- $ -- $ --
reserves
----------
(1) Recoveries of amounts previously written off against the reserve.
F-32
PART II
Information Not Required in Prospectus
--------------------------------------
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth various expenses, which will be incurred
in connection with the registration of our securities. Other than the SEC
Registration Fee, the amounts set forth below are estimates:
SEC Registration Fee .................................... $ 947.37
Printing & Engraving Expenses ........................... $ 5,000.00
Legal Fees and Expenses ................................. $25,000.00
Accounting Fees and Expenses ............................ $30,000.00
----------
TOTAL: ............................. $60,947.37
==========
Item 14. 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
II-1
to a director 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 our 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.
Item 15. Recent Sales of Unregistered Securities
The following table sets forth our sale of securities during the last
three years, which securities were not registered under the Securities Act of
1933, as amended. No underwriters were employed with respect to the sale of any
of the securities listed below. All shares were issued in reliance on Section
4(2) and/or Section 3(b) of the Securities Act.
1. During fiscal 2000, six employees exercised options to acquire 70,
500 stock options. The names of the employees, the number of shares purchased
and the proceeds to us are listed below:
NUMBER OF PURCHASE PROCEEDS TO DATE OF
NAME SHARES ACQUIRED PRICE THE COMPANY EXERCISE
---- --------------- -------- ----------- --------
Melody Rawski 5,000 $.43 $ 2,150 12/30/99
John Steele 5,000 $.43 $ 2,150 01/04/00
John Klecha 50,000 $.43 $21,500 01/18/00
Terry Marco 5,000 $.43 $ 2,150 01/25/00
Terri Phillips 2,500 $.43 $ 1,075 02/16/00
Adolph Nelson 1,500 $.43 $ 645 03/15/00
Jorge Otaegui 1,500 $.43 $ 645 08/02/00
Each of the employees paid for the options with cash. Each employee's
exercise of the option was made in reliance on Section 4(2) of the Securities
Act. Each employee represented that he/she had no need for liquidity in his/her
investment and had adequate financial resources to withstand a total loss of
their investment. A legend was placed on the certificates stating that the
securities were not registered under the Securities Act and set forth the
restrictions on their transferability and sale.
II-2
2. During fiscal 2000, fifteen warrant holders exercised their warrants
to acquire 396,000 shares of our common stock. The names of the warrant holders,
the date of exercise, the number of shares purchased, the exercise price and the
proceeds received by us are listed below.
DATE OF NO. OF EXERCISE PROCEEDS TO THE
NAME EXERCISE SHARES PRICE COMPANY
----- -------- ------ -------- ---------------
Benchmark Capital 4/26/00 16,000 $2.00 $ 32,000
Sebastian Angelico 5/03/00 4,000 $2.00 $ 8,000
Josef Bauer 5/15/00 8,000 $2.00 $ 16,000
Portfolio Research
Associates 5/17/00 76,000 $1.375 $104,500
Albert Wardi 5/22/00 2,000 $2.00 $ 4,000
Jack Robbins 5/24/00 75,000 $1.00 $ 75,000
Jack Robbins 5/24/00 75,000 $1.50 $112,500
Jack Robbins 5/24/00 20,000 $2.00 $ 40,000
Wolcot Capital Inc. 5/24/00 4,000 $2.00 $128,000
Wendy Blauner 5/24/00 4,000 $2.00 $ 8,000
Jon Blauner 5/24/00 4,000 $2.00 $ 8,000
John Klecha 9/25/00 4,000 $2.00 $ 8,000
Bank Sal. Oppenheim 10/27/00 40,000 $2.00 $ 80,000
Union Atlantic 11/01/00 20,000 $1.00 $ 20,000
Sil Venturi 12/01/00 4,000 $2.00 $ 8,000
Aton Trust 12/01/00 40,000 $2.00 $ 80,000
Each of these warrant holders exercised their warrants in reliance upon Section
4(2) of the Securities Act of 1933, because each of the holders was
knowledgeable, sophisticated and had access to comprehensive information about
us. We placed legends on the certificates stating that the securities were not
registered under the Securities Act and set forth the restrictions on their
transferability and sale.
3. In May 2000, we obtained two working capital loans in the amount of
$100,000 and $500,000 from Maureen La Rouche and Josef Bauer. The loans were for
a period of eight months and bore interest at the rate of 15% per annum. As
consideration for extending the loans, we issued 5,000 warrants to Ms. La Rouche
and 25,000 warrants to Mr. Bauer. Each warrant allowed the holder to purchase
one share of our common stock at an exercise price of $3.25 per share. The
warrants expire on May 25, 2003.
4. During September 2000, we issued 25,000 warrants to Neal Berkman for
services rendered to our Company. Mr. Berkman a principal at Berkman and
Associates, a firm that provides investor relation services to us. The warrants
have an exercise price of $3.06 per share and 25,000 warrants vest on December
1, 2001 and 50% on December 1, 2002. All warrants expire on December 1, 2006.
II-3
5. In September 2000, we issued an aggregate of 625,500 options to our
employees, as consideration for services they had rendered to us. We issued
these options to our employees in reliance upon Section 4(2) of the Securities
Act, because our employees were knowledgeable, sophisticated and had access to
comprehensive information about us.
NO. OF EXERCISE
NAME OPTIONS PRICE
---- ------- --------
Brian Cino 10,000 $3.06
April Green 20,000 $3.06
Alicia Haskamp 30,000 $3.06
John Klecha 180,000 $3.06
Terry Marco 30,000 $3.06
Marion McElligott 5,000 $3.06
Jamilla Miller 3,000 $3.06
Howard Moore 25,000 $3.06
Adolph Nelson 2,500 $3.06
Jorge Otaeugi 3,000 $3.06
Terry Phillips 5,000 $3.06
Melody Rawski 10,000 $3.06
Eddie Steele 200,000 $3.06
John Steele 50,000 $3.06
Richard Torrelli 2,000 $3.06
Edwin Young 50,000 $3.06
For each employee, officer or director, fifty percent of their options are
exercisable on December 1, 2001 and 50% on December 1, 2002. The options all
expire on December 1, 2006.
6. On September 2000, we issued an aggregate of 50,000 options to our
current directors and one previous director for their services to us during the
preceding year. We issued these options to our directors in reliance upon
Section 4(2) of the Securities Act, because our directors were knowledgeable,
sophisticated and had access to comprehensive information about us.
NO. OF EXERCISE
NAME OPTIONS PRICE
---- ------- ---------
Josef Bauer 10,000 $3.06
Edward Steele 10,000 $3.06
John Klecha 10,000 $3.06
Howard Moore 10,000 $3.06
Alan Schor 10,000 $3.06
These options are immediately exercisable. The options all expire on September
5, 2006.
7. On March 13, 2001, we issued 20,000 options to Robert Weinberg and
10,000 options to John DeNovi. The exercise price of these options is $4.90 per
share and the expiration date is March 13, 2006. Half of Mr. Weinberg's options
vest on December 1, 2001 and the remainder vest on December 1, 2002. Half of Mr.
DeNovi's options vest on March 13, 2002 and the remainder vest on March 13,
2003. We issued these options to Mr. Weinberg and Mr. DeNovi in reliance upon
Section 4(2) of the Securities Act, because our employees were knowledgeable,
sophisticated and had access to comprehensive information about us.
II-4
8. During fiscal 2002, thirteen employees, one director and one former
director exercised stock options issued under our 1994 Amended and Restated
Management Stock Option Plan. The employees exercised options to acquire an
aggregate of 71,400 shares of our common stock. The names of the option holders,
the dates of exercise, the number of shares purchased, the exercise price and
the proceeds received by the Company are listed below.
DATE OF NO. OF EXERCISE
NAME EXERCISE SHARES PRICE PROCEEDS
---- -------- ------ --------- --------
Adolph Nelson 04/30/01 1,500 $ .43 $ 645
John Steele 04/30/01 5,000 $ .43 $ 2,150
Teresa Marco 05/01/01 5,000 $ .43 $ 2,150
Terry Philips 05/01/01 1,500 $ .43 $ 645
Brian Cino 05/02/01 3,400 $ .43 $ 1,462
John Klecha 05/30/01 50,000 $ .43 $21,500
Melody Rawski 06/14/01 5,000 $ .43 $ 2,150
Terry Phillips 07/11/01 1,500 $ .43 $ 645
April Green 07/11/01 100 $ .66 $ 166
Brian Cino 07/15/01 800 $ .43 $ 344
April Green 07/11/01 200 $1.66 $ 332
John Steele 07/24/01 10,000 $ .43 $16,600
Josef Bauer 08/16/01 10,000 $3.06 $30,600
April Green 08/16/01 200 $1.66 $ 332
Edward Steele 09/28/01 175,000 $ .43 $75,250
Edward Steele 09/28/01 5,000 $3.06 $15,300
April Green 10/02/01 1,000 $1.66 $ 1,660
April Green 10/31/01 1,000 $1.66 $ 1,660
John Steele 11/06/01 10,000 $1.66 $16,600
Brian Cino 11/13/01 350 $ .43 $ 151
April Green 11/13/01 1,000 $1.66 $ 1,660
Teresa Marco 11/13/01 10,000 $1.66 $16,600
John Steele 12/07/01 5,000 $3.06 $15,300
April Green 12/07/01 700 $1.66 $ 1,162
Melody Rawski 12/18/01 5,000 $3.06 $15,300
April Green 12/18/01 2,000 $3.06 $ 6,120
Edwin Young 12/28/01 25,000 $3.06 $76,500
Adolph Nelson 12/28/01 1,250 $3.06 $ 3,825
Eddie Steele 01/03/02 262,500 $.287 $75,250
Eddie Steele 01/03/02 45,000 $1.107 $49,800
Eddie Steele 01/03/02 15,000 $2.04 $30,600
Alicia Haskamp 01/03/02 6,000 $2.04 $12,240
M. McElligott 02/06/02 3,750 $2.04 $ 7,650
Brian Cino 02/06/02 675 $.287 $193.50
Brian Cino 02/06/02 1,350 $2.04 $ 2,754
Jorge Otaeugi 02/06/02 2,250 $.287 $ 645
Jorge Otaeugi 02/06/02 2,250 $2.04 $ 4,590
John Steele 02/06/02 7,500 $2.04 $15,300
Terry Phillips 02/19/02 450 $2.04 $ 918
Alan Schor 02/19/02 7,500 $2.04 $15,300
Robert Torrelli 03/07/02 150 $2.04 $ 306
John DeNovi 03/07/02 2,550 $3.27 $ 8,330
John Steele 03/14/02 22,500 $2.04 $45,900
Terry Phillips 03/22/02 900 $2.04 $ 1,836
Each person paid for theirs shares with cash. Each person exercised their
options in reliance upon Section 4(2) of the Securities Act of 1933, because
he/she was knowledgeable, sophisticated and had access to comprehensive
information about the Company. The shares issued to these optionees were
registered under the Securities Act on a registration statement on Form S-8. The
shares issued to employees who were not affiliates did not contain any
restrictive legends. The shares issued to our executive officers and our
directors contained a control legend. Control legends were contained on the
shares issued to Eddie Steele, our Chief Executive Officer and a director, John
Klecha, our Chief Operating Officer and a director and Josef Bauer, our
director.
II-5
9. During fiscal 2002, ten warrant holders exercised their warrants
to acquire an aggregate of 298,400 shares of our common stock. All of these
persons acquired their warrants in the Company's private offering of units in
May 1999. The names of the warrant holders, the dates of exercise the number of
shares purchased, the exercise price and the proceeds received by the Company
are listed below.
DATE OF NO. OF EXERCISE PROCEEDS
NAME EXERCISE SHARES PRICE
---- -------- ------ -------- --------
Entropy Holdings 04/30/01 10,000 $2.00 $ 20,000
FRS Investments 04/30/01 10,000 $1.375 $ 13,750
Itamar Zac Jones 07/15/01 4,000 $2.00 $ 8,000
Edward Borelli 10/29/01 95,400 $1.375 $131,175
Anthony Broy 10/31/01 4,000 $2.00 $ 8,000
SISM Research 11/02/01 10,000 $2.00 $ 20,000
Clarion Finanz AG 11/08/01 7,000 $1.375 $ 92,125
FRS Investments 12/31/01 20,000 $1.375 $ 27,500
Eddie Steele 01/03/02 12,000 $1.33 $ 16,000
Fred Merz 02/19/02 6,000 $1.33 $ 8,000
FRS Investments 03/04/02 30,000 $0.917 $ 27,500
John Klecha 03/19/02 30,000 $1.33 $ 40,000
Each of the warrant holders paid for their shares with cash. Each of these
warrant holders exercised their warrants in reliance upon Section 4(2) of the
Securities Act of 1933, because each of these holders was knowledgeable,
sophisticated and had access to comprehensive information about the Company. The
Company placed legends on the certificates stating that the securities were not
registered under the Securities Act and set forth the restrictions on their
transferability and sale.
10. On August 15, 2001, the Company issued an aggregate of 50,000
options to its directors pursuant to an annual grant of options to persons who
had served on the Board during the previous year. Each of the following
directors received 10,000 options: Eddie Steele, John Klecha, Josef Bauer,
Howard Moore and Robert Weinberg. The exercise price of the options is $6.35 per
share and the options expire on August 14, 2006. The options are exercisable
immediately. We issued these options to our directors in reliance upon Section
4(2) of the Securities Act, because our directors are knowledgeable,
sophisticated and have access to comprehensive information about the Company.
II-6
11. On August 16, 2001, Josef Bauer and Maureen LaRoche, Mr. Bauer's
assistant, exercised warrants to acquire an aggregate of 90,000 shares of the
Company's common stock. Mr. Bauer and Ms. LaRoche acquired these warrants when
they advanced working capital to the Company in May 2000. The dates of exercise
the number of shares purchased, the exercise price and the proceeds received by
the Company are listed below.
DATE OF NO. OF EXERCISE
NAME EXERCISE SHARES PRICE PROCEEDS
---- -------- ------ -------- --------
Josef Bauer 8/16/01 10,000 $2.00 $20,000
Josef Bauer 8/16/01 25,000 $3.25 $81,250
Josef Bauer 8/16/01 50,000 $1.00 $50,000
Maureen LaRoche 8/16/01 5,000 $3.25 $16,250
Mr. Bauer and Ms. LaRoche paid for their shares with cash and exercised their
warrants in reliance upon Section 4(2) of the Securities Act of 1933, because
each was knowledgeable, sophisticated and had access to comprehensive
information about the Company. The Company placed legends on the certificates
stating that the securities were not registered under the Securities Act and set
forth the restrictions on their transferability and sale.
12. On November 30, 2001, Neil Berkman exercised options to acquire
25,000 shares of our common stock at a purchase price of $3.06 per share. Mr.
Berkman acquired these warrants for financial consulting services that he
rendered to the Company. Mr. Berkman paid for his shares with cash and exercised
their warrants in reliance upon Section 4(2) of the Securities Act of 1933,
because he was knowledgeable, sophisticated and had access to comprehensive
information about the Company. The Company placed legends on the certificates
stating that the securities were not registered under the Securities Act and set
forth the restrictions on their transferability and sale.
13. On December 28, 2001, Josef Bauer exercised 10,000 stock options
acquired under our Year 2001 Stock Option Plan. Mr. Bauer exercised his options
in reliance upon Section 4(2) of the Securities Act of 1933, because he was
knowledgeable, sophisticated and had access to comprehensive information about
the Company. The Company placed legends on the certificates stating that the
securities were not registered under the Securities Act and set forth their
restrictions on transferability and sale.
14. During fiscal 2003, five employees and a director exercised stock
options issued under our 1994 Amended and Restated Management Stock Option Plan.
The employee exercised options to acquire an aggregate of shares of our common
stock. The names of the option holder, the dates of exercise, the number of
shares purchased, the exercise price and the proceeds received by the Company
are listed below.
Date of No. of Exercise
Name Exercise Shares Price Proceeds
---- -------- ------ -------- --------
Alicia Haskamp 04/06/02 16,500 $2.04 $33,660
Howard Moore 07/12/02 33,750 $2.04 $68,850
Terri Phillips 07/31/02 600 $2.04 $ 1,224
Adolph Nelson 12/19/02 1,875 $2.04 $ 3,825
Edwin Young 01/21/03 37,500 $2.04 $76,500
April Green 02/24/03 1,000 $2.04 $ 2,040
II-7
Each employee paid for the shares with cash. Each employee exercised his/her
options in reliance upon Section 4(2) of the Securities Act of 1933, because
he/she was knowledgeable, sophisticated and had access to comprehensive
information about the Company. The shares issued to employees who were not
affiliates did not contain any restrictive legends. The shares issued to our
executive officer and our director contained a control legend. Control legends
were contained on the shares issued to April Green, our Chief Financial Officer,
and Howard Moore, our director.
15. During the three month period ended June 30, 2002, one warrant
holder exercised its warrants to acquire an aggregate of 52,500 shares of our
common stock. The name of the warrant holder, the date of exercise, the number
of shares purchased, the exercise price and the proceeds received by the Company
are listed below.
DATE OF NO. OF EXERCISE
NAME EXERCISE SHARES PRICE PROCEEDS
---- -------- ------ -------- --------
FRS Investments 05/17/02 52,500 $0.9167 $48,125
FRS paid for its shares with cash. FRS exercised its warrants in reliance upon
Section 4(2) of the Securities Act of 1933, because it was knowledgeable,
sophisticated and had access to comprehensive information about the Company. The
Company placed legends on the certificates stating that the securities were not
registered under the Securities Act and set forth the restrictions on their
transferability and sale.
16. On December 31, 2002, we issued an aggregate of 187,000 options to
our employees, as consideration for services they had rendered to us. We issued
these options to our employees in reliance upon Section 4(2) of the Securities
Act, because our employees were knowledgeable, sophisticated and had access to
comprehensive information about us.
NAME NO. OF OPTIONS ISSUED PRICE
---- --------------------- -----
Frank Abell 6,000 $9.00
Jennifer Barnes 5,000 $9.00
Dan Becherer 10,000 $9.00
Almina Brady-Dykes 6,000 $9.00
Elizabeth Canela 3,000 $9.00
Tammy Chestnut 1,000 $9.00
Belinda Cheung 500 $9.00
Danny Cheung 1,000 $9.00
Jeffrey Chiu 1,000 $9.00
Brian Cino 3,000 $9.00
John DeNovi 10,000 $9.00
Teresa Garcia 15,000 $9.00
April Green 20,000 $9.00
Alicia Haskamp 18,000 $9.00
Michelle Ho 3,000 $9.00
Wilson Ho 1,000 $9.00
Dale Hopkins 10,000 $9.00
Irene Ko 3,000 $9.00
Bill Lau 4,500 $9.00
Dora Lee 3,000 $9.00
Nataly Lessard 6,000 $9.00
Gigi Leung 500 $9.00
Marian McElligott 15,000 $9.00
Adolph Nelson 2,000 $9.00
Rick Ng 500 $9.00
Cathy Novello 4,000 $9.00
Jennifer O'Kuhn 2,000 $9.00
Jorge Otaegui 2,000 $9.00
Terri Phillips 3,000 $9.00
Melody Rawski 5,000 $9.00
Asante Sellers 1,000 $9.00
Stacy Sethman 5,000 $9.00
John Steele 10,000 $9.00
Richard Torrelli 1,000 $9.00
Nicolas Venegas 2,000 $9.00
Vicky Xavier 2,500 $9.00
Ho Man Yeung 500 $9.00
Yen Yu 1,000 $9.00
II-8
For each employee, twenty percent (20%) of their options are exercisable on
January 1, 2004 and 20% exercisable each January 1st thereafter with the last
20% becoming exercisable on January 1, 2008. The options expire 5 years after
they become exercisable with varying expiration dates from December 31, 2009
through December 31, 2013.
17. During the three month period ended June 30, 2003, four employees
exercised stock options issued under our 1994 Amended and Restated Management
Stock Option Plan. The employee exercised options to acquire an aggregate of
128,500 shares of our common stock. The names of the option holder, the dates of
exercise, the number of shares purchased, the exercise price and the proceeds
received by the Company are listed below.
NO. OF OPTIONS EXERCISE EXERCISE
NAME EXERCISED PRICE DATE PROCEEDS
---- -------------- -------- -------- --------
John Steele 30,000 $2.04 04/9/03 $61,200
Allen Schor 7,500 $2.04 04/9/03 $15,300
Alicia Haskamp 7,500 $2.04 04/18/03 $15,300
Alicia Haskamp 10,000 $2.04 04/01/03 $20,400
John Klecha 58,500 $1.11 04/22/03 $64,935
John Klecha 15,000 $2.04 04/22/03 $30,600
All of the above issuances were paid for with cash. The above employees
exercised their options in reliance upon Section 4(2) of the Securities Act of
1933, because they are knowledgeable, sophisticated and had access to
comprehensive information about the Company. The shares issued to our employees
who were not affiliates did not contain any restrictive legends. The shares were
registered under the Securities Act on a registration statement on Form S-8. As
such, no restrictive legends were placed on the shares.
18. On September 8, 2003, we issued an aggregate of $4,000,000 of 8%
convertible debentures in a private offering to six accredited investors. The
debentures initially are convertible into shares of common stock at a price of
$3.85 per share, subject to adjustment in certain situations. Each investor also
received warrants equal to 40% of the subscription amount. The exercise price of
the warrants is $4.025 per share and the warrants expire on September 7, 2006.
We also have an obligation to register the shares of common stock underlying the
debenture and warrants, which we are satisfying by filing this registration
statement. The names of the investors, the amount of the debentures and the
number or warrants issuable to each investor are set forth below.
AMOUNT OF
NAME DEBENTURES NO. OF WARRANTS
---- ---------- ---------------
Omnicron Master Trust $2,500,000 285,714
SF Capital Partners, Ltd $ 500,000 57,143
Bristol Investment Fund, Ltd. $ 300,000 34,286
Ascend Offshore Fund, Ltd. $ 478,000 54,629
Ascend Partners, LP $ 58,200 6,651
Ascend Partners Sapient LP $ 163,800 18,720
II-9
The offering and sale of the debentures and the warrants was made in reliance
upon Section 4(2) (2) of the Securities Act of 1933, as amended. We used Roth
Capital as our placement agent and they received a commission equal to 5.5% of
the proceeds and a warrant to purchase 103,896 shares or our common stock. We
agreed to register the shares underlying Roth's warrant in a registration
statement. The common stock was only offered and sold to accredited investors or
persons who represented that they had no need for liquidity in their investment
and had adequate financial resources to withstand a total loss of their
investment. We issued these shares to these persons in reliance upon Section
4(2) of the Securities Act, because the shareholders were knowledgeable,
sophisticated and had access to comprehensive information about us. We placed
legends on the debentures and the warrant agreements stating that the securities
were not registered under the Securities Act and set forth the restrictions on
their transferability and sale.
Item 16. Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
3.1 Certificate of Incorporation of the Company filed with the Delaware
Secretary of State on February 15, 1994 and amendments through April
15, 1999 (incorporated by reference to Exhibit 3.1 in the Company's
registration statement on Form SB-2 filed with the SEC on March 7,
2000).
3.2 Certificate of Amendment of the Company filed with the Delaware
Secretary of State on September 29, 2000 (incorporated by reference to
Exhibit 3.1 in the Company's Quarterly Report on Form 10-QSB for the
period ended September 30, 1999 filed with the SEC on November 14,
2000).
3.3 Certificates of Correction filed with the Delaware Secretary of State
on March 29 and 30, 2001 correcting the Amendment to our Certificate of
Incorporation dated April 20, 1998 (incorporated by reference to
Exhibit 3.11 in the Company's registration statement on Form SB-2 filed
with the SEC on April 11, 2000).
II-10
Exhibit No. Description of Exhibit
----------- ----------------------
3.4 Amended By-Laws of the Company (incorporated by reference to Exhibit
3.14 in the Company's Annual Report on Form 10-KSB for the year ended
March 31, 2001 filed with the SEC on June 29, 2001).
4.1 Form of Certificate Evidencing Shares of Common Stock (incorporated by
reference to Exhibit 3.3. of the Company's registration statement on
Form SB-2 filed with the SEC on March 7, 2000)
5.1 Opinion of Adorno & Yoss, P.A.*
10.1 Securities Purchase Agreement dated as of August 20, 2003 by and among
the Company and Omicron Master Trust, SF Capital Partners, Ltd.,
Bristol Investment Fund, Ltd., Ascend Offshore Fund, Ltd., Ascend
Partners, LP and Ascend Partners Sapient, LP (collectively, the
"Investors").*
10.2 Amendment dated September 5, 2003 to Securities Purchase Agreement
between the Company and the Investors*
10.3 Form of Debenture Agreement issued by the Company to each of the
Investors*
10.4 Form of Warrant Agreement issued by the Company to the Investors*
10.5 Warrant Agreement between the Company and Roth Capital Partners, LLC*
10.6 Registration Rights Agreement between the Company and each of the
Investors and Roth Capital Partners, LLC*
10.7 Employment Agreement dated May 1, 1998 between the Company and Edward
Steele (incorporated by reference to Exhibit 10.1 of the Company's
registration statement on Form SB-2 filed with SEC on March 7, 2000).
10.8 Employment Agreement dated June 1, 2000 between the Company and John
Klecha (incorporated by reference to Exhibit 10.5 of the Company's
registration statement on Form SB-2 filed with the SEC March 28, 2001).
10.9 Separation and Release Agreement effective as of May 2, 2003 between
the Company and John Klecha.*
10.10 Employment Agreement dated March 15, 2002 between the Company and April
Green (incorporated by reference to Exhibit 10.21 of the Company's
Annual Report on Form 10-KSB/A filed with the SEC on July 23, 2002).
10.11 Employment Agreement dated April 14, 2002 between the Company and Jack
Dromgold (incorporated by reference to Exhibit 10.20 of the Company's
Annual Report on Form 10-KSB/A filed with the SEC on July 23, 2003).
10.12 Employment Agreement dated May 2, 2003 between the Company and Yi Ping
Chan. (incorporated by reference to Exhibit 10.20 of the Company's
Annual Report on Form 10-KSB/A filed with the SEC on July 23, 2003)*
10.13 Domestic Merchandise License Agreement dated November 1, 2000 between
MTV Networks, a division of Viacom International, Inc. and the Company
(incorporated by reference to Exhibit 10.3 of the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 2002, filed with
the SEC on February 14, 2003).
10.14 Amendment dated January 1, 2002 to Domestic Merchandise License
Agreement between MTV Networks, a division of Viacom International,
Inc. and the Company ((incorporated by reference to Exhibit 10.4 of the
Company's Quarterly Report on Form 10-Q for the quarter ended December
31, 2002, filed with the SEC on February 14, 2003).
II-11
Exhibit No. Description of Exhibit
----------- ----------------------
10.15 Second Amendment as of November 13, 2002 to Domestic Merchandise
License Agreement between MTV Networks, a division of Viacom
International, Inc. and the Company (incorporated by reference to
Exhibit 10.5 of the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 2002, filed with the SEC on February 2003).
10.16 Third Amendment as of February 26, 2003 to Domestic Merchandise License
Agreement between MTV Networks, a division of Viacom International,
Inc. and the Company (incorporated by reference to Exhibit 10.10 of the
Company's Annual Report on Form 10-K for the fiscal year ended March
31, 2003 , filed with the SEC on July 17, 2003).
10.17 Industrial Lease dated March 1, 2002, by and between AMP Properties,
L.P. and the Company for warehouse space in Compton, California
(incorporated by reference to Exhibit 10.20 of the Company's Annual
Report on Form 10-KSB/A filed with the SEC on July 23, 2002).
10.18 Loan and Security Agreement dated April 2000 between LaSalle Business
Credit, Inc. and the Company (incorporated by reference to Exhibit 3.1
in the Company's Quarterly Report on Form 10-QSB for the period ended
September 30, 1999 filed with the SEC on November 14, 2000).
10.19 First through Fourth Amendment to Loan and Security Agreement dated
October 1, 2001 through February 28, 2002 between LaSalle Business
Credit, Inc. and the Company (incorporated by reference to Exhibits
10.11 through 10.14 of the Company's Annual Report on Form 10-KSB/A
filed with the SEC on July 23 , 2003).
10.20 Fifth Amendment to Loan and Security Agreement dated August 13, 2002
between LaSalle Business Credit, Inc. and the Company (incorporated by
reference to Exhibit 10.1 of the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 2002 filed with the SEC on
November 14, 2002).
10.21 Sixth Amendment to Loan and Security Agreement dated November 28, 2001
between LaSalle Business Credit, Inc. and the Company (incorporated by
reference to Exhibit 10.1 of the Company's Quarterly Report on Form
10-Q for the quarter ended December 31, 2002, filed with the SEC on
February 14, 2003).
10.22 Seventh through Tenth Amendment to Loan and Security Agreement dated
February 2-, 2003 through March 28, 2003 between LaSalle Business
Credit, Inc. and the Company, In (incorporated by reference to Exhibits
10.1 through 10.5 to the Form 8-K filed with the SEC on May 21, 2003).*
10.23 Eleventh Amendment to Loan and Security Agreement dated February 28,
2003 between LaSalle Business Credit, Inc. and the Company, Inc.
(incorporated by reference to Exhibit 10.1 of the Company's Current
Report on Form 8-K filed with the SEC on June 4, 2003).
10.24 Twelfth Amendment to Loan and Security Agreement dated February 28,
2003 between LaSalle Business Credit, Inc. and the Company, Inc.*
(incorporated by reference to Exhibit 10.1 of the Company's Current
Report on Form 8-K filed with the SEC on July 7, 2003).
10.25 Thirteenth Amendment to Loan and Security Agreement dated August 1,
2003 between LaSalle Business Credit, LLC and the Company (incorporated
by reference to Exhibit 10.1 of the Company's Current Report on Form
S-k filed with the SEC on August 1, 2003).
10.26 Fourteenth Amendment to the Loan and Security Agreement dated August
28, 2003 between LaSalle Business Credit, LLC and the Company
(incorporated by reference to Exhibit 10.1 of the Company's Current
Report on Form 8-K filed with the Sec on August 28, 2003).
II-12
Exhibit No. Description of Exhibit
----------- ----------------------
10.27 Amended and Restated 1994 Management Stock Option Plan (incorporated by
reference to Exhibit 10.6 to the Company's registration statement on
Form SB-2 filed with the SEC on March 28, 2001).
10.28 Year 2001 Stock Option Plan (incorporated by reference to Exhibit 10.1
of the Company's registration statement on Form S-8 filed with the SEC
on September 13, 2002).
10.29 Company's Amended Bankruptcy Plan of Reorganization dated December 17,
1997 and Bankruptcy Court's Order Confirming the Plan of Reorganization
(incorporated by reference to Exhibit 10.5 of the Company's
registration statement on Form SB-2 filed with the SEC on March 7,
2000).
21.1 List of Subsidiaries (incorporated by reference to Exhibit 21.1 in the
Company's Annual Report on Form 10-K for the fiscal year ended March
31, 2003 filed with the SEC on July 17, 2003).
23.1 Consent of Grant Thornton, LLP*
23.2 Consent of Salberg & Company, P.A.*
23.3 Consent of Adorno & Yoss, P.A. (contained in Exhibit 5.1)
----------
*Filed herewith.
Item 17. Undertakings
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 to:
(i) Include any Prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the Prospectus any facts or events which,
individually or together, represent a fundamental change in
the information 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 Securities and Exchange Commission pursuant to
Rule 424(b) if, in the aggregate, the change in volume and
price represents no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of the
Registration Fee" table in the effective registration
statement; and
(iii) Include any additional or changed material information on the
plan of distribution.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, treat each such post-effective amendment as
a new registration statement relating to the securities offered therein, and the
offering of the securities at that time to be the initial bona fide offering
thereof.
II-13
(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.
(4) For purposes of determining any liability under the Securities Act
of 1933, as amended, treat the information omitted from the form of Prospectus
filed as part of this registration statement in reliance upon Rule 430A, and
contained in a form of Prospectus filed by the small business issuer under Rule
424(b)(1) or (4) or 497(h) under the Securities Act as part of this registration
statement as of the time the Commission declares it effective.
(5) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of Prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at the time as the initial bona fide
offering of those securities.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, 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 of 1933, as amended, 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 of whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement on Form S-1, to be signed
on its behalf by the undersigned, thereunto duly authorized in the City of
Coconut Creek, Florida, on October 7, 2003.
THE SINGING MACHINE COMPANY, INC.
Dated: October 7, 2003 By: /s/ Robert Weinberg
-----------------------------------------
Robert Weinberg, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert Weinberg Chief Executive Officer October 7, 2003
-------------------
/s/ April Green Chief Financial Officer October 7, 2003
-------------------
/s/ Yi Ping Chan Chief Operating Officer October 7, 2003
-------------------
/s/ Josef A. Bauer Director October 7, 2003
-------------------
Josef A. Bauer
/s/ Howard Moore Director October 7, 2003
-------------------
Howard Moore
II-15
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
----------- ----------------------
5.1 Opinion re: Legality of the Securities Being Registered
10.1 Securities Purchase Agreement dated as of August 20, 2003 by and among
the Company and Omicron Master Trust, SF Capital Partners, Ltd.,
Bristol Investment Fund, Ltd., Ascend Offshore Fund, Ltd., Ascend
Partners, LP and Ascend Partners Sapient, LP (collectively, the
"Investors")
10.2 Amendment dated September 5, 2003 to Securities Purchase Agreement
between the Company and the Investors
10.3 Form of Debenture Agreement issued by the Company to each of the
Investors
10.4 Form of Warrant Agreement issued by the Company to the Investors
10.5 Warrant Agreement between the Company and Roth Capital Partners, LLC
10.6 Registration Rights Agreement between the Company and each of the
Investors and Roth Capital Partners, LLC
23.1 Consent of Grant Thornton, LLP
23.2 Consent of Salberg & Company, P.A.
23.3 Consent of Adorno & Yoss, P.A. (contained in Exhibit 5.1)