As filed with the Securities and Exchange Commission on October 18, 1995
_________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EMERSON RADIO CORP.
(Exact name of registrant as specified in its charter)
Delaware 22 328522
(State or other jurisdiction of (I.R. S. Employer)
incorporation or organization) Identification No.)
Nine Entin Road, Parsippany, New Jersey 07054-0430
(Address of Principal Executive Offices) (Zip Code)
EMERSON RADIO CORP. STOCK COMPENSATION PROGRAM
(Full title of the plan)
EMERSON RADIO CORP. 1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
Eugene I. Davis
President
Emerson Radio Corp.
Nine Entin Road
Parsippany, New Jersey 07054-0430
(201) 884-5800
(Name, address and telephone number, including area code,
of agent for service)
with a copy
Albert G. McGrath, Jr., Esq. Jeffrey M. Davis, Esq.
Emerson Radio Corp. and Lowenstein, Sandler, Kohl,
Nine Entin Road Fisher & Boylan, P.A.
Parsippany, New Jersey 07054-0430 65 Livingston Avenue
Roseland, New Jersey 07068
CALCULATION OF REGISTRATION FEE
<TABLE>
<C> <C> <C> <C> <C>
Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered unit (1) price fee
Common Stock,
par value $.01 per share 2,300,000 shares(2) $2.625 $6,037,500 $2,081.90
</TABLE>
(1) Pursuant to Rule 457 promulgated under the Securities Act of 1933,
as amended (the "Act"), the proposed maximum offering price per share
is estimated solely for the purpose of computing the amount of the
registration fee and is based on the average of the high and low sales
price of the Common Stock of the registrant reported on the American
Stock Exchange, Inc. on October 17, 1995.
(2) Pursuant to Rule 416 promulgated under the Act, there are also being
registered such indeterminate number of additional shares as shall
become issuable pursuant to the anti-dilution provisions of the above-
mentioned plans and the options granted thereunder.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Emerson Radio Corp. (the
"Company") with the Securities and Exchange Commission (the "SEC"), are
hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1995;
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995;
3. The Company's Current Report on Form 8-K as filed with the
SEC on September 9, 1995; and
4. The description of the Common Stock of the Company contained in
the Company's Registration Statement on Form S-1 (registration no. 33-
53621) declared effective by the SEC on August 9, 1994.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities 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. Any statement contained herein or 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 such statement is modified or superseded by a
subsequently filed document which also is or is deemed to be incorporated
by reference herein. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Registration Statement except as
so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not made in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law (which provision relates to the improper
payment of dividends and the improper redemption of the corporation's
stock), or (iv) for any transaction from which the director derived an
improper personal benefit.
Section 145 of the Delaware General Corporation Law provides
that a corporation 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, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
by reason of the fact that he or she is or was a director, officer,
employee or agent of the corporation, or is or was serving at its request
in such capacity in another corporation or business association, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with such action, suit or proceeding if he or she acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Section 145 provides that termination of any action by judgment,
settlement, conviction or plea of nolo contendere shall not itself create a
presumption that the person did not act in good faith and in a manner that
he or she reasonably believed to be in or not opposed to the best interests
of the corporation and, in the case of any criminal proceeding, had reason
to believe that his or her conduct was not unlawful. In the case of an
action by or in the right of a corporation, no indemnification shall be
made if the person was adjudged to be liable to the corporation, unless the
Court of Chancery of Delaware or the court in which the action was brought
determines that, despite the adjudication of liability but in view of all
the circumstances in the case, such person is entitled to indemnification
for such expenses that the court deems proper.
The Company's Certificate of Incorporation and By-laws contain
provisions permitting the indemnification of directors, officers and
certain other agents and representations of the Registrant to the fullest
extent permitted by law. The Company's Certificate of Incorporation and By-
laws also contain provisions requiring that the Company pay the expenses of
any such director or officer, and permitting it to pay the expenses of any
such other agent or representative, incurred in connection with any action
for which indemnification is normally available so long as such person
certifies that he or she in good faith believes that he or she has met the
requisite standard of conduct required for indemnification to be available.
The Company's Certificate of Incorporation and By-laws also
contain provisions relieving directors of personal liability for monetary
damages to the Company and its stockholders for breaches of fiduciary duty,
which provisions parallel those of Section 102(b)(7) of the Delaware
General Corporation Law.
The Company's Certificate of Incorporation and By-laws also
contain provisions permitting the Company to maintain insurance to protect
itself and its directors, officers and other agents and representative
against liability for actions taken by or on behalf of the Corporation.
The Company currently maintains general liability insurance and "directors
and officers liability" insurance to provide such insurance coverage.
The Company's Fourth Amended Joint Plan of Reorganization dated
March 31, 1994 (the "Plan") under Chapter 11 of the United States
Bankruptcy Code, as amended, provides, among other things, that, among
specified others, any and all directors, officers and stockholders who at
any time from and after July 8, 1992, or as of the Effective Date of the
Plan (as defined therein), acted as such, are released from and indemnified
against all liability based upon any act or commission of every kind
related to past service with, for or on behalf of the Company or any of the
other companies restructured by the Plan, except where such liability is
predicated on a finding of gross negligence, willful misconduct or fraud.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of Emerson (incorporated by
reference to Exhibit 3(a) of the Company's Registration Statement on Form S-
1, Registration No. 33-53621, declared effective by the SEC on August 9,
1994)
4.2 By-laws of Emerson adopted March 1994 (incorporated by
reference to Exhibit 3(e) of the Company's Registration Statement on Form S-
1, Registration No. 33-53621, declared effective by the SEC on August 9,
1994)
4.3 Emerson Radio Corp. Stock Compensation Program
(incorporated by reference to Exhibit 10(i) of the Company's Registration
Statement on Form S-1, Registration No. 33-53621, declared effective by the
SEC on August 9, 1994)
4.4 Emerson Radio Corp. 1994 Non-Employee Director Stock Option
Plan (incorporated by reference to Exhibit 10(y) of the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1995)
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.A.
23.1 Consent of Independent Auditors (Ernst & Young LLP)
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan,
P.A. is included in Exhibit 5.1
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
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 1993;
(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; and
(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 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
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 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 that 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 of 1933 and will be governed by the final adjudication
of such issue.
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 Township of Parsippany, State of New
Jersey, on the 18th day of October, 1995.
Emerson Radio Corp.
By: _______________________________
Eugene I. Davis.
President and Interim Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated:
Signatures Title Date
________________
Geoffrey P. Jurick Chairman
of the Board and Chief Executive
Officer
October 18, 1995
_________________
Eugene I. Davis Director, President
and Interim Chief Financial Officer
October 18, 1995
_________________
Robert H. Brown, Jr. Director
October 18, 1995
__________________
Peter G. Bunger Director
October 18, 1995
__________________
Jerome H. Farnum Director
October 18, 1995
__________________
Raymond L. Steele Director
October 18, 1995
EXHIBIT INDEX
Exhibit No. Description Page No.
4.1 The Company's Certificate of Incorporation, as
amended (incorporated by reference to Exhibit 3(a)
of the Company's Registration Statement on Form S-1,
Registration No. 33-53621, declared effective by the
SEC on August 9, 1994)
4.2 The Company's By-laws (incorporated by reference
to Exhibit 3(b) of the Company's Registration
Statement on Form S-1, Registration No. 33-
53621, declared effective by the SEC on
August 9, 1994)
4.3 Emerson Radio Corp. Stock Compensation Program
(incorporated by reference to Exhibit 10(i) of
the Company's Registration Statement on Form S-1,
Registration No. 33-53621, declared effective by
the SEC on August 9, 1994)
4.4 Emerson Radio Corp. 1994 Non-Employee Director
Stock Option Plan (incorporated by reference to Exhibit
10(y) of the Company's Annual Report on Form 10-K for the
fiscal year ended March 31, 1995)
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.A. 8
23.1 Consent of Independent Auditors (Ernst & Young LLP) 10
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.A. is
included in Exhibit 5.1
October 12, 1995
Emerson Radio Corp.
Nine Entin Road
Parsippany, NJ 07054
Dear Sir:
You have requested our opinion, as your securities counsel, in connection with
the registration with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), of a public offering of the
common stock, $.01 par value per share (the "Common Stock"), of Emerson Radio
Corp. (the "Company") under the Emerson Radio Corp. Stock Compensation
Program (the "Program") and Emerson Radio Corp. 1994 Non-Employee Director
Stock Option Plan (the "Plan"), on a registration statement on Form S-8
(the "Registration Statement").
We have examined and relied upon originals or copies of all such corporate
records of the Company, communications or certifications of public
officials, certificates of officers, directors and representatives of the
Company, and such other documents as we have deemed relevant and necessary
as the basis of the opinions expressed herein. In making such examination,
we have assumed the genuineness of all signatures, the authenticity of all
documents tendered to us as originals, and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based upon the foregoing and relying upon statements of fact contained in the
documents that we have examined, we are of the opinion that, when the
Registration Statement becomes effective under the Act, the Common Stock
subject to the Program and the Plan, when issued and sold as contemplated
in the Registration Statement, will be legally issued, fully paid, and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendment thereto and to all references to
this firm contained in the Registration Statement.
Very truly yours,
LOWENSTEIN, SANDLER, KOHL,
FISHER & BOYLAN, P.A.
CONSENT
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement and related Prospectus pertaining to the Emerson Radio
Corp. Stock Compensation Program and the Emerson Radio Corp. 1994 Non-Employee
Director Stock Option Plan and to the incorporation by reference therein of our
report dated May 24, 1995, with respect to the consolidated financial statements
and schedule of Emerson Radio Corp. included in its Annual Report (Form 10-K)
for the year ended March 31, 1995, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
New York, New York
October 17, 1995
