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As filed with the Securities and Exchange Commission
on September 6, 1996. Registration No. 333-_
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
Registration Statement Under
the Securities Act of 1933
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SOUND SOURCE INTERACTIVE, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 95-4264046
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2985 E. HILLCREST DRIVE
SUITE A
WESTLAKE VILLAGE, CALIFORNIA 91362
(Address of Principal Executive Offices)
SOUND SOURCE INTERACTIVE, INC.
1995 STOCK OPTION PLAN
(Full Title of the Plan)
ULRICH E. GOTTSCHLING
CHIEF FINANCIAL OFFICER,
SECRETARY AND TREASURER
SOUND SOURCE INTERACTIVE, INC.
2985 E. HILLCREST DRIVE
SUITE A
WESTLAKE VILLAGE, CALIFORNIA 91362
(Name and Address of Agent For Service)
(805) 494-9996
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
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Common Stock 500,000 Shares $5.00 $2,500,000.00 $862.07
(par value $.001)
including Common
Stock Purchase Options
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1 An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of the plan become operative.
2 Estimated solely for the purpose of calculating the registration fee in
accordance with rule 457(c) and (h) under the Securities Act of 1933 on the
basis of the average of the closing bid and asked prices of the Common Stock
as reported by the NASDAQ SmallCap Market on September 3, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
registration statement:
(1) The prospectus of Sound Source Interactive, Inc. (the
"Company") filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), on July 3, 1996, being the most recent prospectus so filed
pertaining to the Company's Registration Statement No. 33-80827.
(2) The description of the Company's Common Stock contained in
the Company's registration statement on Form 8-A filed with the Commission
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
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 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 (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); PROVIDED, HOWEVER, that the documents enumerated above or
subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d)
of the Exchange Act in each year during which the offering made by this
registration statement is in effect prior to the filing with the Commission of
the Company's annual report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this registration
statement or be a part hereof from and after the filing of such annual report on
Form 10-K.
Any statement contained in an incorporated document 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 Incorporated Document modifies or supersedes such statement. Any such
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.
The securities to be offered are registered under Section 12(b)
of the Exchange Act.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Robert G. Kalik, of counsel to McDermott, Will & Emery, holds a
presently exercisable option to purchase 33,467 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that a
director of the Company, to the maximum extent now or hereafter permitted by
Section 102(b)(7) of the Delaware General Corporation Law (the "Delaware GCL"),
will have no personal liability to the Company or its stockholders for monetary
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damages for breach of fiduciary duty as a director. Section 102(b)(7) of the
Delaware GCL currently provides that directors of corporations that have adopted
such a provision will not be so liable, except (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) as provided under Section 174 of the Delaware GCL for
the payment of certain unlawful dividends and the making of certain stock
purchases or redemptions or (iv) for any transaction from which the director
derived an improper personal benefit. This provision would absolve directors of
personal liability for negligence in the performance of their duties, including
gross negligence. It would not permit a director to be exculpated, however, for
liability for actions involving conflicts of interest or breaches of the
traditional "duty of loyalty" to the Company and its stockholders, and it would
not affect the availability of injunctive or other equitable relief as a remedy.
The Company's Bylaws generally require the Company to indemnify
and advance expenses to its directors, officers, employees and other agents to
the fullest extent permitted by Delaware law. The Company also has entered into
indemnification agreements with each of its existing directors, and plans to
enter into indemnification agreements with directors appointed in the future,
whereby the Company will indemnify each such person against certain claims
arising out of certain past, present or future acts, omissions or breaches of
duty committed by an indemnitee while serving as a Company director. Such
indemnification does not apply to acts or omissions which are knowingly
fraudulent, deliberately dishonest or arise from willful misconduct.
Indemnification will only be provided to the extent that the indemnitee has not
already received payments in respect of a claim from the Company or from an
insurance company. Under certain circumstances, such indemnification (including
reimbursement of expenses incurred) will be allowed for liability arising under
the Securities Act.
The Company has purchased a director's and officers' liability
policy insuring directors and officers of the Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Reference is made to the Exhibit Index.
Item 9. UNDERTAKINGS.
The Company 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 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.
(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 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.
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(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) That, for the purposes of determining any liability
under the Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or 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.
(5) Insofar as indemnification 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 Company 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
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 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 Securities 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
undersigned 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 Westlake Village, California, on September 3, 1996.
SOUND SOURCE INTERACTIVE, INC.
By:/s/ Vincent J. Bitetti
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Vincent J. Bitetti,
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Sound Source
Interactive, Inc., hereby severally constitute Vincent J. Bitetti and Ulrich E.
Gottschling, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
said Registration Statement, and generally to do all such things in our name and
behalf in the capacities indicated below to enable Sound Source Interactive,
Inc. to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and any and all amendments thereto.
Pursuant to the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on September 3, 1996.
Signature Title
/s/ Vincent J. Bitetti Chairman, Chief Executive Officer and Director
- ------------------------- (principal executive officer)
Vincent J. Bitetti
/s/ Eric H. Winston President, Chief Operating Officer and Director
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Eric H. Winston
/s/ Ulrich E. Gottschling Chief Financial Officer, Secretary and Treasurer
- ------------------------- (principal financial and accounting officer)
Ulrich E. Gottschling
/s/ Ronald W. Hart Director
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Ronald W. Hart
/s/ Mark A. James Director
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Mark A. James
/s/ Ernest T. Klinger
- ------------------------- Director
Ernest T. Klinger
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EXHIBIT INDEX
Exhibits marked with an asterisk (*) are incorporated by reference to documents
previously filed by Registrant with the Securities and Exchange Commission, as
indicated. All other documents listed are filed with this Registration
Statement.
EXHIBIT NUMBER DESCRIPTION
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4.2 * Second Restated Certificate of Incorporation of
Registrant (Exhibit 3.1 to (Registrant's Form SB-2
Registration Statement, Registration No. 33-80827
(the "Registration Statement")).
4.3 * Amended and Restated By-laws of Registrant
(Exhibit 3.2 to the Registration Statement).
5.1 Opinion (including consent) of McDermott, Will &
Emery.
23.1 Consent of Corbin & Wertz.
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EXHIBIT 5.1
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[LETTERHEAD]
September 3, 1996
Sound Source Interactive, Inc.
2985 East Hillcrest Drive, Suite A
Westlake Village, CA 91362
Re: COMMON STOCK ($.001 PAR VALUE)
Gentlemen:
We have acted as counsel for Sound Source Interactive, Inc. (the "Company")
in connection with the preparation and filing of a Registration Statement on
Form S-8 (the "Registration Statement") for the registration under the
Securities Act of 1933, as amended, of 500,000 shares of the Company's Common
Stock, $.001 par value (the "Common Stock"), which may be issued pursuant to the
Company's 1995 Stock Option Plan (the "Plan").
We have examined or considered:
1. A copy of the Company's Second Restated Certificate of
Incorporation.
2. The Amended and Restated By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State of Delaware, as
of a recent date, as to the good standing of the Company in that state.
4. Copies of resolutions duly adopted by the Board of Directors of
the Company relating to the Plan.
5. A copy of the Plan.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion.
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Sound Source Interactive, Inc.
September 3, 1996
Page 2
Based upon the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) All legal and corporate proceedings necessary for the issuance of
shares of Common Stock under the Plan have been duly taken, and the Common
Stock, upon issuance pursuant to the terms of the Plan, will be duly
authorized, legally and validly issued, fully paid and nonassessable.
We hereby consent to all references to our Firm in the Registration
Statement and to the filing of this opinion by the company as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ McDermott, Will & Emery
McDermott, Will & Emery
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EXHIBIT 23.1
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CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Sound Source Interactive, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 8, 1995 (except for
Note 7, which is as of October 9, 1995, Note 14, which is as of May 30, 1996,
and Note 15, which is as of June 1, 1996) relating to the consolidated
financial statements as of and for the two-year period ended June 30, 1995
appearing in the Form SB-2 Registration Statement (No. 33-80827) of Sound
Source Interactive, Inc.
/s/ Corbin & Wertz
CORBIN & WERTZ
Irvine, California
September 3, 1996
