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As filed with the Securities and Exchange Commission on April 23, 1997.
Registration No. 333-_____________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
AURORA ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-1539534
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
9477 WAPLES STREET, SUITE 150
SAN DIEGO, CALIFORNIA 92121
(619) 552-1213
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
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AURORA ELECTRONICS, INC.
1997 EMPLOYEE STOCK BONUS PLAN
(Full titles of the Plans)
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JOHN P. GRAZER
PRESIDENT AND CHIEF FINANCIAL OFFICER
AURORA ELECTRONICS, INC.
9477 WAPLES STREET, SUITE 150
SAN DIEGO, CALIFORNIA 92121
(619) 597-3503
(Name, address, and telephone number, including area code, of agent for
service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
TITLE OF EACH AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(2)
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<S> <C> <C> <C> <C>
Common Stock,
$.03 par value 100,000 $1.563 $156,300 $47.36
- ---------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate additional amount of
shares of Common Stock to be offered or sold pursuant to the antidilution
provisions of the plan.
(2) Calculated based on 100,000 shares of Aurora Electronics, Inc. common
stock, $.03 par value per share, at $1.563 per share, the closing sales
price per share of Aurora Common Stock as reported on the American Stock
Exchange on March 25, 1997, the date of the stock grants issued under the
1997 Employee Stock Bonus Plan, all in accordance with Rule 457(h)
promulgated under the Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, which have been previously filed with the
Securities and Exchange Commission (the "Commission") by Aurora Electronics,
Inc. (the "Company"), are incorporated by reference in this Registration
Statement:
(a) Annual Report on Form 10-K for the year ended September 30,
1996, as amended by the Company's Annual Report on Form 10-KA, which contains
audited financial statements of the Company for the fiscal year ended September
30, 1996.
(b) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since September 30, 1996.
(c) The description of the Company's common stock, par value $.03
per share (the "Common Stock"), contained in the Company's registration
statement on Form 8-A, including any amendment or report filed for the purpose
of updating such description.
All 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 to this Registration Statement, which indicate that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
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Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that the Company
shall indemnify any director, officer or employee, or former director, officer
or employee, of the Company, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law (the "DGCL"). DGCL
Section 145 provides, among other things, that the Company may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the Company) by reason of the fact that he is or
was a director, officer, agent or employee of the Company or who serves or
served at the Company's request as a director, officer, agent, employee,
partner or trustee of another corporation or of a partnership, joint venture,
trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding. The power to
indemnify applies (a) if such person is successful on the merits or otherwise
in defense of any action, suit or proceeding, or (b) if such person acted in
good faith and in a manner he reasonably believed to be in the best interest,
or not opposed to the best interest, of the Company or corporation and with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The power to indemnify applies to actions
brought by or in the right of the corporation as well, but only to the extent
of defense expenses (including attorneys' fees but excluding amounts paid in
settlement) actually and reasonably incurred and not to any satisfaction of a
judgment or settlement of the claim itself, and with the further limitation
that in such actions no indemnification shall be made in the event of any
adjudication of negligence or misconduct in the performance of his duties to
the Company, unless the court believes that in light of all the circumstances
indemnification should apply.
The Company's Bylaws further provide that a determination of the
minimum standard required for indemnification may be made by either (a) a
majority of the directors of the Company (whether or not a quorum) who were not
parties to the action, (b) independent legal counsel in a written opinion, or
(c) the Company's stockholders. The Company may advance expenses to the
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potential indemnitee only if the Company's Board of Directors so authorizes and
if the potential indemnitee undertakes in writing to repay the expenses if it
is subsequently determined that he is not entitled to indemnification. The
indemnification provisions contained in the Company's Certificate of
Incorporation and Bylaws are not exclusive of any other rights to which a
person may be entitled by law, agreement, vote of stockholders or disinterested
directors or otherwise.
Insofar as indemnification by the Company for liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act"), may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits of this Registration Statement, which Index is incorporated herein by
reference.
ITEM 9. UNDERTAKINGS.
(a) 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the 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 and 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 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
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(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 (a)(1)(i) and (a)(1)(ii) do not
apply if 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
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 by the registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described in
Item 6, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification by the registrant 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 whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
[Remainder of page intentionally left blank]
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Diego, State of California, on
April 22, 1997.
AURORA ELECTRONICS, INC.
By: /s/ Jim C. Cowart
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Jim C. Cowart
Chairman and Chief Executive Officer
By: /s/ John P. Grazer
-------------------------------------
John P. Grazer
President and Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Jim C. Cowart and John P. Grazer, his true and lawful attorney-in-fact
and agent with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective 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, and
hereby grants to such 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, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent 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 or amendment thereto has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Date
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<S> <C>
/s/ Jim C. Cowart April 22, 1997
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Jim C. Cowart
Chairman and Chief Executive Officer
/s/ David A. Lahar April 22, 1997
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David A. Lahar
Director
/s/ Thomas E. McInerney April 22, 1997
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Thomas E. McInerney
Director
/s/ Richard H. Stowe April 22, 1997
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Richard H. Stowe
Director
/s/ William K. Watkins, Jr. April 22, 1997
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William K. Watkins, Jr.
Director
</TABLE>
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<TABLE>
<S> <C>
/s/ Amin J. Khoury April 22, 1997
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Amin J. Khoury
Director
/s/ Harvey B. Cash April 22, 1997
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Harvey B. Cash
Director
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4.1* Aurora Electronics, Inc. 1997 Employee Stock Bonus Plan
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Hughes & Luce, L.L.P. (Contained in Exhibit 5.1)
23.2* Consent of Arthur Anderson LLP
24.1* Power of Attorney (Contained at pp. 7-8)
</TABLE>
* Filed herewith
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EXHIBIT 4.1
AURORA ELECTRONICS, INC.
1997 EMPLOYEE STOCK BONUS PLAN
1. Purpose of the Plan. The Aurora Electronics, Inc. (the "Company")
1997 Employee Stock Bonus Plan (the "Plan") is intended to reward non-officer
employees of Aurora Electronics Group, Inc., a California corporation and
wholly-owned subsidiary of the Company ("AEG"), for their hard work and
dedication to AEG by granting to such employees shares of Company common stock,
$.03 par value per share ("Common Stock").
2. Administration of the Plan. The Plan shall be administered by the
Company's Compensation and Stock Option Committee of the Company's Board of
Directors (the "Committee"). No member of the Committee shall act in any
manner relating solely to such person's interests under the Plan. The
Committee shall have full power and authority to administer the Plan, interpret
the Plan, and determine all terms and conditions upon which Common Stock will
be awarded under the Plan.
3. Eligibility. All persons who are non-officer employees of AEG as of
March 25, 1997 ("Employees") shall receive a grant of Common Stock under the
Plan.
4. Stock Subject to the Plan. The stock issued under the Plan shall
consist of the Company's authorized but unissued or reacquired Common Stock.
The aggregate number of shares issuable under the Plan is 100,000.
5. Approval of the Plan. The Plan was adopted by the Company's Board of
Directors on March 25, 1996.
6. Grant of Common Stock. Each Employee shall receive a grant of Common
Stock equal to his or her pro rata share of 100,000 shares of Common Stock
(based on the aggregate number of Employees as of March 25, 1997), effective as
of March 25, 1997.
7. Vesting. The Common Stock granted under the Plan shall vest
immediately.
8. Withholding of Taxes. The Committee will make such provisions and
take such steps as it may deem necessary or appropriate for the withholding of
any taxes that the Company is required by any law or regulation of any
governmental authority to withhold in connection with any grant of Common Stock
under the Plan, including, without limitation, withholding the issuance of all
or any portion of the shares of Common Stock until the Employee reimburses the
Company for the amount it is required to withhold with respect to such taxes,
canceling any portion of such issuance in an amount sufficient to reimburse the
Company for the amount it is required to withhold or taking any other action
reasonably required to satisfy the Company's withholding obligation.
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9. Conditions Upon Issuance of Shares. The Company will not be obligated
to sell or issue any shares under the Plan unless the issuance and delivery of
shares complies with all provisions of applicable federal and state securities
laws and the requirements of the American Stock Exchange.
As a condition to the grant of Common Stock under the Plan, the
Company may require the Employee to make such representations and warranties as
may be necessary to assure the availability of an exemption from the
registration requirements of applicable federal and state securities laws.
The Company will not be liable for refusing to sell or issue any
shares under the Plan if the Company cannot obtain authority from the
appropriate regulatory bodies deemed by the Company to be necessary to lawfully
sell or issue such shares.
10. Restrictions on Shares. Shares of Common Stock issued pursuant to the
Plan will be subject to restrictions on transfer under applicable federal and
state securities laws. The Committee may impose such additional restrictions
on the ownership and transfer of shares of Common Stock issued pursuant to the
Plan as it deems desirable.
11. Continued Employment Not Presumed. Nothing in this Plan or any
document describing it nor the grant of any Common Stock under the Plan will
give any Employee the right to continue in the employment of the Company or
affect the right of the Company to terminate the employment of any such person
with or without cause.
12. GOVERNING LAW. THE PLAN WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF STATE OF DELAWARE AND THE UNITED STATES, AS
APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
13. Severability of Provisions. If any provision of this Plan is
determined to be invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability will not affect the remaining provisions of the Plan, but
such invalid, illegal or unenforceable provision will be fully severable, and
the Plan will be construed and enforced as if such provision had never been
inserted herein.
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EXHIBITS 5.1
April 22, 1997
Aurora Electronics, Inc.
9477 Waples Street, Suite 150
San Diego, California 92121
Re: Registration Statement on Form S-8 for the Aurora Electronics,
Inc. 1997 Employee Stock Bonus Plan
Ladies and Gentlemen:
We have acted as counsel to Aurora Electronics, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 100,000 shares of
the Company's common stock, $.03 par value per share (the "Common Stock"),
issuable under the Aurora Electronics, Inc. 1997 Employee Stock Bonus Plan (the
"Plan"). The shares issued under the Plan are referred to as the "Shares".
The Shares are being registered pursuant to a registration statement on Form
S-8 to be filed with the Securities and Exchange Commission on or about April
23, 1997 (the "Registration Statement").
In rendering this opinion, we have examined and relied upon executed
originals, counterparts or copies of such documents, records and certificates
(including certificates of public officials and officers of the Company) as we
considered necessary or appropriate for enabling us to express the opinions set
forth herein. In all such examinations, we have assumed the authenticity and
completeness of all documents submitted to us as originals and the conformity
to originals and completeness of all documents submitted to us as photostatic,
conformed, notarized or certified copies.
Based on the foregoing, we are of the opinion that the Shares will be,
if and when issued and paid for pursuant to the Plan, validly issued, fully
paid and nonassessable, assuming the Company maintains an adequate number of
authorized but unissued shares of Common Stock available for such issuance, and
further assuming that the consideration actually received by the Company for
the Shares exceeds the par value thereof.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
HUGHES & LUCE, L.L.P.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
December 30, 1996 included in Aurora Electronics, Inc.'s Form 10-K for the year
ended September 30, 1996.
Arthur Andersen LLP
Irvine, California
April 22, 1997
