As filed with the Securities and Exchange Commission on April 20, 2004
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
The Singing Machine Company, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 95-3795478
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(State or Jurisdiction of (I.R.S. Employer
(Incorporation or organization) Identification No.)
The Singing Machine Company, Inc.
6601 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
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(Address of Principal Executive Office)
The Singing Machine Company, Inc.
Year 2001 Stock Option Plan, as Amended
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(Full Title of the Plan)
Yi Ping Chan, Chief Operating Officer
The Singing Machine Company, Inc.
6601 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
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(Name and Address of Agent for Service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount
Title of Each Class of Amount Offering Aggregate of
Securities to be to be Price Per Offering Registration
Registered Registered(1) Share Price Fee
---------------------- ------------- --------- ------------- ------------
Common Stock (2) 21,750 $ 3.27 $ 71,122.50 $ 6.54
Common Stock(2) 60,000 $ 4.23 $ 253,800.00 $23.35
Common Stock(3) 1,868,250 $11.58 $2,163,433.50 $1,990.36
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TOTAL 1,950,000 $2,020.25(4)
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(1) This Registration Statement also covers such indeterminate amount of
securities as may be offered or sold pursuant to the Year 2001 Stock Option
Plan, as amended, to prevent dilution, pursuant to Rule 416(a) under the
Securities Act of 1933, as amended.
(2) Calculated in accordance with Rule 457 based upon the price at which
outstanding options can be exercised.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 (c) and (h) on the average high and low sale
prices of the common stock reported on the American Stock Exchange.
(4) The Registrant previously paid $2,020.25 in connection with the filing of
its Registration Statement on Form S-8 (SEC File No. 333-99543) on
September 13, 2002 to register 1,950,000 shares of its common stock.
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EXPLANATORY NOTE
On September 13, 2002, we filed with the Securities and Exchange
Commission ("SEC') a Registration Statement on Form S-8, No. 333-99543,
pertaining to our Year 2001 Stock Option Plan, which provided for the granting
of stock options to eligible participants under the Plan. At our Annual
Shareholder Meeting held on February 26, 2004, our shareholders approved an
amendment to our Year 2001 Plan which permits us to award stock awards to
eligible participants under the Year 2001 Stock Option Plan in addition to stock
options. We are filing this Post Effective Amendment to file our Year 2001 Stock
Option Plan, as amended, which is attached as Exhibit 10.1 No additional
securities are being registered.
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
The Singing Machine Company, Inc. (the "Company," "we," "us" or the
"Registrant") has prepared this Registration Statement on Form S-8 under the
Securities Act of 1933, as amended to register 1,950,000 shares of our common
stock, which will be awarded to eligible persons pursuant to options and stock
awards granted under our Year 2001 Stock Option Plan , as amended (the "Plan").
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in our Plan as specified by Rule
428(b)(1) under the Securities Act. Such documents are not filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act relating to the Plan.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible participants pursuant to Rule 428(b) or
additional information about our Plan and its administrators are available
without charge by contacting:
The Singing Machine Company, Inc.
6601 Lyons Road, Bldg. A-7
Coconut Creek, FL 33073
Attn: Chief Financial Officer
(954) 596-1000
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to documents we file with the SEC. The information incorporated by
reference is considered to be part of this Registration Statement. Information
that we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
documents subsequently filed by us pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
until all the shares covered by this Registration Statement have been sold or
deregistered:
o Annual Report on Form 10-KSB/A for the year ended March 31, 2003,
filed on July 17, 2003;
o Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2003 filed on August 14, 2003;
o Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2003 filed on November 14, 2003;
o Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 2003 filed on February 17, 2003;
o Definitive Proxy Statement filed on January 21, 2004;
o Current Reports on Form 8-K filed on May 6, 2003, May 22,
2003; June 5, 2003, June 30, 2003, July 7, 2003, July 15,
2003, August 1, 2003, August 15, 2003, August 28, 2003,
November 7, 2003, February 17, 2004, February 26, 2004 and
April 14, 2004;
o All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Registrant's document referred to in (a) above; and
o The description of our common stock contained in our
Registration Statement on Form 8-A filed with the SEC on
October 19, 1994 and Amendment No. 1 to the Registration
Statement on Form 8-A filed with the SEC on March 2, 2001 and
any amendments thereto, or reports filed for the purpose of
updating such description.
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We hereby undertake to provide without charge to each person, including
any beneficial owner, to whom a copy of the prospectus has been delivered, on
the written request of any such person, a copy of any or all of the documents
referred to above which have been or may be incorporated by reference in this
prospectus, other than exhibits to such documents. Written requests for such
copies should be directed to our Chief Financial Officer, The Singing Machine
Company, Inc., 6601 Lyons Road, Bldg. A-7, Coconut Creek, FL 33073.
Item 4. Description of Securities
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
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Item 6. Indemnification of Directors and Officers
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As a Delaware corporation, we are subject to the Delaware General
Corporation Law. Section 102(b)(7) of Delaware law enables a corporation in its
certificate of incorporation to eliminate or limit personal liability of members
of its Board of Directors for monetary damages for breach of a director's
fiduciary duty of care. Article 10 of our Certificate of Incorporation provides
that a director shall not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to us or our
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware or (iv) for any transaction from which
the director derived an improper personal benefit and contains a comparable
provision. Under Section 174 of Delaware law, directors are subject to personal
liability if they declare dividends or have the corporation buy back, acquire or
purchase shares of its common stock in circumstances which are not permitted by
Delaware law. Under Delaware law, directors can not declare dividends unless the
company has legally available surplus, as such term is defined under Delaware
law, or the dividends are declared out of net profits in the fiscal year in
which the dividend is declared. Additionally, directors can not authorize the
acquisition, purchase or redemption of shares of a company's common stock unless
such transaction is authorized by a company's articles of incorporation.
Section 145 of Delaware law permits a corporation organized under
Delaware law to indemnify directors and officers with respect to any matter in
which the director or officer acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the company, and with
respect to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. Article VI of our Bylaws provides that our
officers, directors, employees or agent shall be indemnified to the full extent
permitted by Delaware law. Article VI also provides that we may advance expenses
to a director if he prior to the final disposition of the action. However, if
required under Delaware law, we may require an officer or director to give us an
undertaking in advance of the final disposition that he will repay all amounts
so advanced, if it shall ultimately be determined that such officer or director
is not entitled to be indemnified under these by-laws or otherwise.
The above discussion of Delaware law and our certificate of
incorporation and bylaws is not intended to be exhaustive and is qualified in
its entirety by our certificate of incorporation, bylaws and Delaware law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to our directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, we have
been advised that in the opinion of the Securities and Exchange commission, this
indemnification is against public policy as expressed in the securities laws,
and is, therefore unenforceable.
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Item 7. Exemption From Registration Claimed
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Not Applicable
Item 8. Exhibits
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5.1 Opinion of Adorno & Yoss, P.A.*
10.1 The Singing Machine Company, Inc. Year 2001 Stock Option Plan,
as amended*
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)*
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* Filed herewith.
Item 9. Undertakings
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A. We hereby undertake to:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or in the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. We hereby undertake that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, we
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act against
such liabilities (other than the payment by the Company in the successful
defense of an action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel, the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Singing
Machine Company, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Post Effective Amendment No. 1 to the Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Coconut Creek, State of Florida, on April 19, 2004.
THE SIGNING MACHINE COMPANY, INC.
By: /s/ Yi Ping Chan
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Interim Chief Executive Officer
And Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post Effective Amendment No. 1 to the Registration Statement on Form S-8
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ Yi Ping Chan Interim Chief Executive Officer, April 19, 2004
-------------------- Chief Operating Officer and Director
Yi Ping Chan (Principal Executive Officer)
/s/ Jeff Barocas Chief Financial Officer April 19, 2004
-------------------- (Principal Financial and
Jeff Barocas Accounting Officer)
/s/ Josef A. Bauer Director April 19, 2004
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Josef A. Bauer
/s/ Bernard Appel Director April 19, 2004
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/s/ Richard Ekstract Director April 19, 2004
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Richard Ekstract
/s/ Harvey Judkowitz Director April 19, 2004
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Harvey Judkowitz
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EXHIBIT INDEX
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5.1 Opinion of Adorno & Yoss, P.A.
10.1 Year 2001 Stock Option Plan, as amended
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)