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As filed with the Securities and Exchange Commission on December 30, 1996
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SRS LABS, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 33-0714264
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2909 Daimler Street, Santa Ana, California 92705
(Address of principal executive offices) (Zip Code)
------------
SRS LABS, INC.
INCENTIVE STOCK OPTION,
NONQUALIFIED STOCK OPTION AND
RESTRICTED STOCK PURCHASE PLAN - 1993,
AS AMENDED AND RESTATED
(Full title of the plan)
------------
Janet M. Biski
Vice President, Chief Financial Officer and Secretary
SRS Labs, Inc.
2909 Daimler Street
Santa Ana, California 92705
(Name and address of agent for service)
(714) 442-1070
(Telephone number, including area code, of agent for service)
Copies of all communications to:
John F. Della Grotta, Esq.
Paul, Hastings, Janofsky & Walker LLP
Seventeenth Floor
695 Town Center Drive
Costa Mesa, California 92626-1924
(714) 668-6210
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share(1) offering price(2) registration fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 801,971 shares(3) $3.04 $2,437,899 $738.76
==========================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(h)(1) solely for the purpose of
calculating the registration fee, and computed based upon the weighted average
of the actual prices at which each of the options may be exercised, which prices
range from a high of $10.36 per share to a low of $0.28 per share.
(2) Calculated pursuant to Rule 457(h)(1) for the purpose of
calculating the registration fee, and computed based upon the aggregate of the
actual prices at which each of the options may be exercised, which prices range
from a high of $10.36 per share to a low of $0.28 per share.
(3) As presently constituted, plus such indeterminate number of shares
as may become subject to the SRS Labs, Inc. Incentive Stock Option, Nonqualified
Stock Option and Restricted Stock Purchase Plan - 1993, as amended and restated
(the "1993 Option Plan") as a result of adjustment provisions set forth in the
1993 Option Plan and agreements entered into pursuant thereto.
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EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information specified by
Part I has been omitted from this Registration Statement.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by SRS Labs, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's Prospectus dated August 8, 1996, filed with the
Commission on August 12, 1996, pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
containing audited financial statements for the fiscal year
ended December 31, 1995;
(b) All reports filed with the Commission pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since December 31,
1995; and
(c) The description of the Company's common stock, which is
contained in the Company's registration statement filed with
the Commission pursuant to Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold hereunder, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation of the Company (the "Certificate")
includes a provision which eliminates the directors' personal liability for
monetary damages to the full extent permitted by Delaware Law or other
applicable law (the "Director Liability Provision"). The Director Liability
Provision eliminates the liability of Directors to the Company and its
stockholders for monetary damages arising out of any violation by a director of
his fiduciary duty of due care. Under Delaware Law, however, the Director
Liability Provision does not eliminate the personal liability of a director for
(i) breach of the director's duty of loyalty, (ii) acts or omissions not in good
faith or involving intentional misconduct or knowing violation of law, (iii)
payment of dividends or repurchases or redemptions of stock other than from
lawfully available funds, or (iv) any transaction from which the director
derived an improper benefit. The Director Liability Provision also does not
affect a director's liability under the federal securities laws or the recovery
of damages by third parties. Furthermore, pursuant to Delaware Law, the
limitation on liability afforded by the Director Liability Provision does not
eliminate a director's personal liability for breach of the director's duty of
due care. Although the directors would not be liable for monetary damages to the
corporation or its stockholders for negligent acts or omissions in exercising
their duty of due care, the directors remain subject to equitable remedies, such
as actions for injunction or rescission, although such remedies, whether as a
result of timeliness or otherwise, may not be effective in all situations.
Furthermore, the Certificate has no effect on any liability arising by virtue of
any act or omission by a director which occurred prior to the effective date of
the reincorporation of the Company from California into Delaware. With regard to
directors who also are officers of the Company, these persons would be insulated
from liability only with respect to their conduct as directors and would not be
insulated from liability for acts or omissions in their capacity as officers.
Delaware Law provides a detailed statutory framework covering
indemnification of directors, officers, employees or agents of the Company
against liabilities and expenses arising out of legal proceedings brought
against them by reason of their status or service as directors, officers,
employees or agents. Section 145 of the Delaware General Corporation Law
("Section 145") provides that a director, officer, employee or agent of a
corporation (i)
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shall be indemnified by the corporation for expenses actually and reasonably
incurred in defense of any action or proceeding if such person is sued by reason
of his service to the corporation, to the extent that such person has been
successful in defense of such action or proceeding, or in defense of any claim,
issue or matter raised in such litigation, (ii) may, in actions other than
actions by or in the right of the corporation (such as derivative actions), be
indemnified for expenses actually and reasonably incurred, judgments, fines and
amounts paid in settlement of such litigation, even if he is not successful on
the merits, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation (and in a criminal
proceeding, if he did not have reasonable cause to believe his conduct was
unlawful), and (iii) may be indemnified by the corporation for expenses actually
and reasonably incurred (but not judgments or settlements) of any action by the
corporation or of a derivative action (such as a suit by a shareholder alleging
a breach by the director or officer of a duty owed to the corporation), even if
he is not successful, provided that he acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, provided that no indemnification is permitted without court
approval if the director has been adjudged liable to the corporation.
Delaware Law also permits a corporation to elect to indemnify its
officers, directors, employees and agents under a broader range of circumstances
than that provided under Section 145. The Certificate contains a provision that
takes full advantage of the permissive Delaware indemnification laws (the
"Indemnification Provision") and provides that: (i) the Company is required to
indemnify its officers and directors to the full extent permitted by law,
including those circumstances in which indemnification would otherwise be
discretionary; (ii) the Company may, by action of the Board of Directors,
provide indemnification to employees and other agents of the Company with the
same scope and effect as the foregoing indemnification of officers and
directors; (iii) the Company may adopt bylaws or enter into one or more
agreements with any person which provide for indemnification greater or
different than that provided in the Certificate; and (iv) the amendment, repeal
or adoption of any provision to the contrary shall require the affirmative vote
of 80% of the shares entitled to vote generally in the election of directors,
voting together as a single class.
In furtherance of the objectives of the Indemnification Provision, the
Board of Directors and the stockholders have approved the use of a form
Indemnification Agreement. One of the purposes of the Indemnification Agreement
is to attempt to specify the extent to which indemnities may receive
indemnification under circumstances in which indemnification would not otherwise
be specifically provided by Delaware Law. Pursuant to the Indemnification
Agreements, an indemnitee will be entitled to indemnification to the extent
specifically required or permitted by Section 145. In addition, to the maximum
extent permitted by applicable law, an indemnitee will be entitled to
indemnification for any amount which the indemnitee is or becomes legally
obligated to pay relating to or arising out of any claim made against such
person because of any act, failure to act or neglect or breach of duty,
including any actual or alleged error, misstatement or misleading statement,
which such person commits, suffers, permits or acquiesces in while acting in the
indemnitee's position with or on behalf of the Company, whether prior to or
after the date of the Indemnification Agreement. The Company is not required
under the Indemnification Agreements to make payments in connection with any
claim against the indemnitee (except to the extent permitted by Section 145) to
the extent (i) of any fine or similar governmental imposition which the Company
is prohibited by applicable law from paying which results in a final,
unappealable order, or (ii) based upon or attributable to the indemnitee gaining
in fact a personal profit to which he is not legally entitled, including without
limitation profits made from the purchase and sale by the indemnitee of equity
securities of the Company which are recoverable by the Company pursuant to
Section 16(b) of the Exchange Act, and profits arising from transactions in
publicly traded securities of the Company which were effected by the indemnitee
in violation of Section 10(b) of the Exchange Act, or Rule 10b-5 promulgated
thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
4.1 SRS Labs, Inc. Incentive Stock Option, Nonqualified Stock
Option and Restricted Stock Purchase Plan - 1993, as amended
and restated, previously filed as Exhibit 10.12 to the
Company's Registration Statement on Form SB-2, Registration
number 333-4974-LA (the "Registration Statement"), which is
incorporated herein by reference.
4.2 Certificate of Incorporation of SRS Labs, Inc., a Delaware
corporation, certified by the Delaware Secretary of State on
June 27, 1996, previously filed as Exhibit 3.1 to the
Registration Statement, which is incorporated herein by
reference.
4.3 Bylaws of SRS Labs, Inc., a Delaware corporation, as currently
in effect, previously filed as Exhibit 3.2 to the Registration
Statement, which is incorporated herein by reference.
5. Opinion (and consent) of Paul, Hastings, Janofsky & Walker LLP
regarding the legality of the securities being registered
hereunder.
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP (set forth as
part of Exhibit 5 above).
23.2 Consent of Deloitte & Touche LLP, independent auditors.
24. Power of Attorney (set forth on page 4).
ITEM 9. UNDERTAKINGS.
The registrant will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to include any
additional or changed material information on the plan of distribution;
(2) For determining any liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to
be the initial bona fide offering; and
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Ana, State of California, on this 30th day of
December, 1996.
SRS LABS, INC.
By: /s/ Thomas C.K. Yuen
-----------------------------------------
Thomas C.K. Yuen
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas C.K. Yuen, Stephen V. Sedmak and
Janet M. Biski, and each of them singly, such person's true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in such person's name, place and stead, in any and all
capacities (including such person's capacity as a director and/or officer of SRS
Labs, Inc.), to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact and
agent, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas C.K. Yuen Chairman of the Board and Chief December 30, 1996
- ------------------------- Executive Officer and a Director
Thomas C.K. Yuen (Principal Executive Officer)
/s/ Stephen V. Sedmak President and Chief Operating December 30, 1996
- ------------------------- Officer and a Director
Stephen V. Sedmak
/s/ Janet M. Biski Vice President, Chief Financial December 30, 1996
- ------------------------- Officer and Secretary (Principal
Janet M. Biski Financial and Accounting Officer)
/s/ John AuYeung Director December 30, 1996
- -------------------------
John AuYeung
/s/ John Tu Director December 30, 1996
- -------------------------
John Tu
/s/ Jeffrey I. Scheinrock Director December 30, 1996
- -------------------------
Jeffrey I. Scheinrock
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
4.1 SRS Labs, Inc. Incentive Stock Option, Nonqualified Stock Option and
Restricted Stock Purchase Plan - 1993, as amended and restated,
previously filed as Exhibit 10.12 to the Company's Registration
Statement on Form SB-2, Registration number 333-4974-LA (the
"Registration Statement"), which is incorporated herein by reference.
4.2 Certificate of Incorporation of SRS Labs, Inc., a Delaware corporation,
certified by the Delaware Secretary of State on June 27, 1996,
previously filed as Exhibit 3.1 to the Registration Statement, which is
incorporated herein by reference.
4.3 Bylaws of SRS Labs, Inc., a Delaware corporation, as currently in
effect, previously filed as Exhibit 3.2 to the Registration Statement,
which is incorporated herein by reference.
5. Opinion (and consent) of Paul, Hastings, Janofsky & Walker LLP
regarding the legality of the securities being registered hereunder.
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP (set forth as part of
Exhibit 5 above).
23.2 Consent of Deloitte & Touche LLP, independent auditors.
24. Power of Attorney (set forth on page 4).
5
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EXHIBIT 5
LAW OFFICES OF
Paul, Hastings, Janofsky & Walker LLP
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
695 TOWN CENTER DRIVE
COSTA MESA, CALIFORNIA 92626-1924
TELEPHONE (714) 668-6200
FACSIMILE (714) 979-1921
INTERNET www.phjw.com
December 30, 1996
(714) 668-6200
SRS Labs, Inc.
2909 Daimler Street
Santa Ana, California 92705
Re: SRS Labs, Inc. Incentive Stock Option, Nonqualified
Stock Option and Restricted Stock Purchase Plan - 1993
Ladies and Gentlemen:
We have acted as counsel for SRS Labs, Inc., a Delaware
corporation (the "Company"), in connection with the SRS Labs, Inc. Incentive
Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan -
1993, as amended and restated (the "1993 Option Plan"). We have examined such
documents, records, and matters of law as we have deemed necessary for purposes
of this opinion, and based thereupon we are of the opinion that the shares of
the Company's common stock, $.001 par value per share (the "Common Stock"), that
may be issued and sold pursuant to the 1993 Option Plan will be, when issued
and sold in accordance with the 1993 Option Plan, duly authorized, validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement on Form S-8 to be filed by the Company on or about
December 30, 1996, to effect registration of the shares of Common Stock to be
issued and sold pursuant to the 1993 Option Plan under the Securities Act of
1933, as amended.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
SRS Labs, Inc. pertaining to SRS Labs, Inc. Incentive Stock Option, Nonqualified
Stock Option and Restricted Stock Purchase Plan - 1993 on Form S-8 of our report
dated May 10, 1996 (except for information pertaining to the reverse stock split
and reincorporation described in Note 1 as to which the date is June 28, 1996),
appearing in the Company's Prospectus dated August 8, 1996, filed with the
Commission on August 12, 1996, pursuant to Rule 424(b).
/s/ Deloitte & Touche LLP
Costa Mesa, California
December 30, 1996
