sv3za
As filed with the Securities and Exchange Commission on January 26, 2004.
Registration No. 333-110132
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
KOSS CORPORATION
(Exact name of registrant as specified in its charter)
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| Delaware |
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39-1168275 |
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| (State or other jurisdiction of |
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(I.R.S. Employer |
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Identification No.) |
4129 North Port Washington Avenue
Milwaukee, Wisconsin 53212
(414) 964–5000
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
Michael J. Koss
Chief Executive Officer and President
4129 North Port Washington Avenue
Milwaukee, Wisconsin 53212
(414) 964-5000
(Name, address, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: o
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. o
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: o
CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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to be |
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Aggregate Price |
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Aggregate |
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Registration |
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Registered |
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per
Unit(1) |
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Offering
Price(1) |
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Fee |
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Common Stock,
$0.005 par value |
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19,875 |
(2) |
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16.96 |
(3) |
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337,080.00 |
(3) |
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27.27 |
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Estimated solely for the purpose of calculating the registration fee. |
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| (2) |
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This registration statement is being used to register 19,875 shares of
common stock that have been issued to the selling stockholders pursuant to
provisions of the Asset Purchase Agreement described in the “Summary”
Section herein. |
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| (3) |
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Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended, based upon the average of the high and low prices on October 29,
2003, as reported by the Nasdaq National Market. |
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
KOSS CORPORATION
19,875 Shares
Common Stock
We are registering for resale pursuant to this prospectus 19,875 shares of
our common stock that we have issued to the selling stockholders named in this
prospectus. The offering of shares of our common stock under this prospectus
is being made by the selling stockholders only. It is not part of an original
issuance by us of shares of our common stock. Accordingly, all of the net
proceeds from the sale of shares of our common stock offered under this
prospectus will go to the selling stockholders who offer and decide to sell
their shares.
Our common stock is quoted on the Nasdaq and trades under the symbol
“KOSS.” On January 22, 2004, the closing price of one share of our common
stock, as reported on the Nasdaq, was $21.40. The selling stockholders may
offer their shares of our common stock in transactions on the Nasdaq Stock
Market’s National Market, through the over-the-counter market in negotiated
transactions, or through a combination of these methods. The selling
stockholders may offer their shares of our common stock at prevailing market
prices, at prices related to market prices, at fixed prices that may change or
at privately negotiated prices. See below under the caption “Plan of
Distribution.”
An investment in shares of our common stock involves risk.
You should carefully consider the risks we describe under the caption
“Risk Factors”
beginning on page 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR
ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
OF THESE SECURITIES OR PASSED UPON
THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The information contained in this prospectus is accurate only as of the
date of this prospectus, regardless of the time of delivery of this prospectus
or of any sale of shares of our common stock offered under this prospectus.
No dealer, salesman or any other person has been authorized to give any
information or to make any representations in connection with this offering
other than those contained in this prospectus and, if given or made, such other
information and representations must not be relied upon as having been
authorized by us or the selling stockholders. This prospectus does not
constitute an offer to sell, or a solicitation of any offer to buy, any
securities other than the registered securities to which it relates. This
prospectus does not constitute an offer to sell, or a solicitation of any offer
to buy, such securities in any circumstances or jurisdiction in which such
offer or solicitation is unlawful.
This prospectus is dated January 26, 2004.
TABLE OF CONTENTS
TABLE OF CONTENTS
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SUMMARY |
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RISK FACTORS |
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WHERE YOU CAN FIND MORE INFORMATION |
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DOCUMENTS INCORPORATED BY REFERENCE |
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SELLING STOCKHOLDERS |
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PLAN OF DISTRIBUTION |
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USE OF PROCEEDS |
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LEGAL MATTERS |
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EXPERTS |
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INDEMNIFICATION |
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2
SUMMARY
We are registering for resale pursuant to this prospectus 19,875 shares of
our common stock that we have issued pursuant to an Asset Purchase Agreement,
dated effective as of May 1, 2003, among us, Addax Sound Company, a Delaware
corporation, and the stockholders of Addax. Pursuant to the Asset Purchase
Agreement, we acquired substantially all of the assets of Addax, a developer
and manufacturer of hands-free communication devices, including proprietary
headsets and off-the-body communication systems. Under the Asset Purchase
Agreement, we issued 19,875 shares of our common stock to Addax for immediate
subsequent distribution to the stockholders of Addax as consideration for the
acquisition of the assets of Addax. We are registering 19,875 shares of our
common stock for resale under this prospectus to cover the 19,875 shares
referred to above. The selling stockholders can use this prospectus to sell
some or all of the shares of our common stock they received pursuant to the
Asset Purchase Agreement.
Although we will not receive any of the proceeds from the selling
stockholders’ sale of their shares, we have agreed to and will pay for the
costs of registering the shares covered by this prospectus, other than
commissions, fees and discounts of underwriters, brokers, dealers and agents,
if any.
We design, develop, manufacture and market stereo headphones and related
accessory products. We have been involved in the stereo headphones business
since 1971. We are a Delaware corporation. Our principal executive offices
are located at 4129 North Port Washington Avenue, Milwaukee, Wisconsin 53212,
and our telephone number is (414) 964-5000.
RISK FACTORS
You should carefully consider the following risk factors before you decide
to buy our common stock. If any of these risks actually occur, our business,
financial condition, operating results or cash flows could be materially
adversely affected. This could cause the trading price of our common stock to
decline, and you could lose part or all of your investment.
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REDUCTION IN PRESENT LEVELS OF CASH FLOW COULD ADVERSELY AFFECT OUR
BUSINESS |
Our primary source of liquidity over the past twelve months has been operating
cash flows. Our future cash flows from operations (on both a short term and
long term basis) are dependent upon, but not limited to:
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our ability to attract new customers that will sell our products and pay us for them, |
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our ability to retain our existing customers at the level of sales previously produced, |
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the volume of sales for these customers, |
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the loss of business of one or more primary customers, |
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changes in types of products that the customers purchase in their sales mix, |
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the volume of royalty income paid to us by our licensees,
including the inability to negotiate favorable royalty arrangements
and renew current arrangements with certain existing favorable
terms, |
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changes in general economic conditions which would directly
impact the ability of our customers to remain in business and pay
for their products on a timely basis, |
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management’s ability to hold the line on any requests for
increases in material or labor cost increases, and |
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the ability to collect in full and in a timely manner,
amounts due to us. |
3
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OUR FAILURE TO ATTRACT AND RETAIN CUSTOMERS TO SELL OUR PRODUCTS COULD
ADVERSELY EFFECT OUR SALES VOLUME AND FUTURE PROFITABILITY |
We market a line of products used by consumers to listen to music. We
distribute these products through retail channels in the U.S. and independent
distributors throughout the rest of the world. We are dependent upon our
ability to retain an existing base of customers to sell our line of products.
Loss of customers means loss of product placement. We have broad distribution
across many channels including specialty stores, mass merchants, electronics
stores and computer retailers. Since distribution is broadly based, any loss
of a customer directly translates into a reduction in sales volume which can
only be replaced by replacing a similar number of representative retail
outlets. The inability of our sales and marketing staff to obtain new
distribution outlets translates into a lack of future growth and possibly a
setback in sales volumes when loss of current customers occurs. For example,
the loss a customer representing 10% of the company’s business would translate
into a reduction in revenues of up to 10% based upon the point through the
fiscal year that the customer was lost. Attracting a new customer during the
course of a fiscal year could have a positive impact or simply replace an
account which has been lost. In addition, a customer can decide to make a
change in the models that it decides to offer for sale. Such changes can take
place arbitrarily throughout the course of a year which can cause reductions in
sales revenues in proportion to the number of retail outlets that the store
represents in the market. We may not be able to maintain customers or model
selections and therefore experience a reduction in its sales revenue until a
model is restored to the mix or a customer is replaced by a new customer. A
reduction in sales volume would cause a reduction in profitability. Our
failure to retain existing customers, obtain new customers or develop new
product lines that customers would choose to offer to consumers could
significantly affect our future profitability. The loss of business of one or
more principal customers or a change in the sales volume from a particular
customer could have a material adverse effect on our sales volume and
profitability.
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PROFIT MARGINS CAN BE REDUCED NEGATIVELY IMPACTING OUR PROFITABILITY |
We sell a line of products with a suggested retail price ranging from less than
$10 dollars US to $1000 dollars US. The gross margin for each of these models
is unique in terms of percentages. The price range of the products also
produces a different level of actual dollar contribution per unit. For example
a product with a gross margin contribution of 50% might yield a $5.00
contribution for one item, while another item may feature a 30% gross margin
which could yield $50. dollars. We find the low priced portion of the market
most competitive and therefore most subject to pressure on gross margin
percentages which tends to lower profit contributions. Retail preference for
lower priced items can reduce profit margins and contributions. The risk is
that a shift in retail customer specifications toward lower priced items can
lead to lower gross margins and lower profit contributions per unit of sale.
Due to the range of products that we sell, the product sales mix can produce a
variation in terms of a range of profit margins. Some customers a sell limited
range of products that yield lower profit margins than others. An increase in
business with these types of accounts, when coupled with a simultaneous
reduction in sales to customers with higher gross margins will reduce profit
margins and profitability.
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POOR ECONOMIC CONDITIONS CAN RESTRICT OR LIMIT PRODUCT PLACEMENT, SALES
AND REPLENISHMENT WHICH COULD DECREASE OUR PROFITS |
Deteriorating or weak economic conditions, or a forecast for the same, can
trigger changes in inventory stocking at retail. This may in turn lead to a
reduction in model offerings and to out of stock situations. If a retail
customer of the company does not have adequate stocks of our products to offer
for sale in a retail store, consumers may choose another competitive model
instead. Customers operating retail stores anticipate future sales demands and
inventory products accordingly. Whenever a general economic slowdown occurs,
at both the domestic or foreign level, sales volume levels and re-orders
change. These changes directly impact our sales and profitability. We are not
in a position to determine how we will be affected by these circumstances, how
extensive the effects may be, or for how long we may be impacted by these
circumstances. Our customers respond to changes in economic conditions and any
anticipated changes in economic conditions can therefore restrict product
placement, availability, sales, replenishment and ultimately profitability.
4
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MANAGEMENT IS SUBJECT TO DECISIONS MADE OUTSIDE ITS CONTROL WHICH COULD
DIRECTLY EFFECT OUR FUTURE PROFITABILITY |
Retail customers determine which products they will stock for resale. We
compete with other manufacturers to secure shelf space in retail stores for our
products. During the course of a year changes in the customers management
personnel can ultimately lead to changes in the stock assortment offered to
consumers. These changes are often arbitrary. The sales and marketing team
cannot always overcome such decisions. In addition to changes in personnel
within our customers, it is also possible that a strategic decision can be made
by a retail customer to consolidate vendors, or to discontinue certain product
categories all together. In these instances our management team is not able to
overcome such decisions. Our management team is also engaged in the effective
procurement, assembly, and manufacture of products. The ability to negotiate
with suppliers, maintain productivity, and hold the line on cost increases can
be subjected to pressures outside the control of management. For example,
increases in fuel costs can increase rates in freight. Increases of this
nature can seldom be avoided and the company is not able to pass such increases
along to its customers. Our management’s effective control of the
manufacturing processes will have a direct impact on our future
profitability. We regularly make decisions that affect production schedules,
shipping schedules, employee level, and inventory levels. Our ability to make
effective decisions in managing these areas has a direct effect on future
profitability.
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ACCOUNTS RECEIVABLE AMOUNTS CAN BE LOST NEGATIVELY IMPACTING OUR FUTURE
PROFITABILITY |
We have significant accounts receivable or other amounts due from our customers
or other parties. The accounts receivable balance at the end of the last 4
quarters averaged approximately eight million dollars US. Terms of payment for
customers range from cash in advance to net 90 day credit terms. These credit
arrangements are negotiated at unspecified and irregular intervals. The largest
customers generate the largest receivable balances. If a customer develops
operational difficulty it is not uncommon to temporarily suspend payment to
vendors. The company is not immune from such practice in the retail
marketplace. From time to time a customer may develop severe operating losses
which can trigger a bankruptcy. In these cases, we loose most of the
outstanding balance due. Occasionally we have been current with a customer at
the time such an event occurs. The risk is that loosing the revenue of the
customer in the future after a re-structure, might be more onerous than loosing
the current outstanding debt. We are not immune from making such decisions.
In addition, many companies that will insure accounts receivables will not do
so for our largest mass market customers. The best example of such a loss was
KMART Corporation. We lost approximately $500,000 when KMART filed for
re-organization. KMART had been current with us at the time that KMART filed
Chapter 11 bankruptcy. We continued to supply KMART during its post petition
re-organization and continue to supply the customer profitably today. The risk
is that we derive most of our sales revenue and profits from selling products
to retailers for resale to consumers. The failure of our customers to pay in
full amounts due to us could negatively affect future profitability.
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COMPANY PROFITS CAN SUFFER FROM INTERRUPTIONS IN SUPPLY CHAIN |
We operate a small sales office in Switzerland to service the International
Export marketplace. We are aware of no material risk in maintaining this
operation. Loss of this office would result in a transfer of sales and
marketing responsibility. We use contract manufacturing facilities in Mainland
China, Taiwan, and South Korea. These independent supplier entities are
distant from us which means that we are at risk of business interruptions due
to natural disaster, war, disease, and government intervention through tariffs
or trade restrictions. We maintain a finished goods inventory level in our US
facility to mitigate this risk. The approximate level of finished goods
inventory is stocked at an average of 90 days demand per item. Recovery of a
single facility through a replacement of supplier in the event of disaster or
suspension of supply could take approximately 120 days. We believe that it
could restore production of its top ten selling models (which represent 76% of
the company’s sales revenue) within 1 year. We are also at risk if trade
restrictions are introduced on our products based upon country of origin. In
addition any increase in tariffs and freight charges would not be acceptable to
pass along to our customers and would directly impact our profits. For
example, an additional increase of 5% in duty for a complete fiscal year of
purchases would amount to a reduction in pretax profit of approximately
$600,000 based upon sales reported in the company’s 10K for the period ending
June 30, 2003.
5
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (the “SEC”). Our SEC
filings are available to the public over the Internet at the SEC’s website at
http://www.sec.gov. You may also read and copy any document we file with the
SEC at its public reference facilities at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on
the operation of the public reference facilities. Our SEC filings are also
available at the office of the Nasdaq National Market. For further information
on obtaining copies of our public filings from the Nasdaq National Market,
please call 212-656-5060.
We intend to furnish our stockholders with annual reports containing
audited consolidated financial statements and other periodic reports as we may
determine or as may be required by law.
This prospectus constitutes a part of a registration statement on Form S-3
that we have filed with the SEC under the Securities Act of 1933, as amended
(the “Securities Act”). This prospectus does not contain all information
included in the registration statement. In accordance with the prospectus
rules and regulations, we have omitted the itemization of expenses related to
the offering, the description of the indemnities provided to our officers and
directors, the exhibits and certain undertakings related to the offering.
Certain parts of the registration statement have been omitted in accordance
with the rules and regulations of the SEC. For further information, please
refer to the registration statement, which can be inspected on the SEC’s web
site or at the public reference rooms at the offices of the SEC.
6
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by reference” certain information and
reports that we file with it. Accordingly, this prospectus incorporates by
reference the following documents previously filed by us with the SEC pursuant
to the Securities Act and the Securities and Exchange Act of 1934, as amended
(the “Exchange Act”), and these documents are deemed a part of this prospectus:
(i) our latest Annual Report on Form 10-K (file number 0-3295), which
contains audited financial statements the Form S-1 for the fiscal year ended
June 30, 2003;
(ii) our Current Report on Form 8-K (file number 0-3295) filed on October
8, 2003;
(iii) our Current Report on Form 8-K (file number 0-3295) filed on January
14, 2004;
(iv) our latest quarterly report on Form 10-Q (file number 0-3295), which
contains unaudited financial statements for the fiscal quarter ended September
30, 2003; and
(v) a description of our common stock contained in our Form S-1 (file
number 0-3295) filed on August 7, 1972 pursuant to Section 12 of the Exchange
Act, including any amendment or reports filed for the purpose of updating such
description.
All of the documents that we file with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and
before the termination of the offering relating to this prospectus will be
deemed to be incorporated by reference in this prospectus and to constitute a
part of this prospectus from the date that such documents are filed with the
SEC. For purposes of this prospectus, any statement that is incorporated or
deemed to be incorporated by reference in this prospectus will be deemed to be
modified, replaced, or superseded by a statement contained in this prospectus
or contained in any other subsequently filed document that also is or is deemed
to be incorporated by reference in this prospectus. Such modified or
superseded statement will be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
You may request, at no cost, copies of any or all of the documents
incorporated by reference in this prospectus (other than the exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
the information that this prospectus incorporates) by writing or telephoning us
at:
Koss Corporation
4129 North Port Washington Avenue
Milwaukee, Wisconsin 53212
Attn: Investor Relations
Telephone: (414) 964-5000
7
SELLING STOCKHOLDERS
The shares of our common stock to be sold pursuant to the offering were
acquired by the selling stockholders in connection with our acquisition of
Addax Sound Company, as described in this prospectus. The table below sets
forth information with respect to the beneficial ownership of the common stock
by selling stockholders immediately prior to this offering and as adjusted to
reflect the sale of all of the shares of common stock registered under this
registration statement pursuant to the offering. All information with respect
to the beneficial ownership has been furnished by the selling stockholders.
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Number of Shares |
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Number of Shares |
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Beneficially |
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Shares Being |
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Beneficially |
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Owned Prior to Offering |
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Offered(1) |
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Owned
After Offering(1) |
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Christopher
Gantz(2) |
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15,900 |
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15,900 |
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0 |
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Emanuel Winston |
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3,975 |
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3,975 |
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0 |
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Total |
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19,875 |
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19,875 |
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0 |
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Assumes that the selling stockholders offer for sale all 19,875 shares of
common stock that may be offered under this prospectus. |
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Christopher Gantz has been Vice President-Communication Products for the
Company since May 2003. |
8
PLAN OF DISTRIBUTION
The shares of common stock are being registered to permit public secondary
trading of such common stock by the holders thereof from time to time after the
date of this prospectus. The sale of the common stock offered by this
prospectus may be effected from time to time directly, or by one or more
broker-dealers or agents, in one or more transactions (which may involve block
transactions) on the Nasdaq (or other national securities exchange or quotation
services on which the common stock may be listed or quoted at the time of sale)
or otherwise. Such common stock may be sold in one or more negotiated
transactions, or through a combination of such methods of distribution, at
prices based upon prevailing market prices, fixed prices, varying prices
determined at the time of sale or at negotiated prices.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling stockholder and any underwriter,
broker-dealer or agent regarding the sale of our common stock by the selling
stockholders. In the event one or more broker-dealers or agents agree to sell
the common stock, they may do so by purchasing the common stock as principals
or by selling the common stock as agent for the selling stockholders. Any such
broker-dealers or agents may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders or the purchasers of
the shares of common stock for which such broker-dealer or agent may act as
agent or to whom they may sell as principal, or both (which compensation as to
a particular broker-dealer or agent may be in excess of customary
compensation). There are no special arrangements in place at this time that
deviate from the standard customary compensation for this service.
The selling stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M.
This Regulation may limit the timing of purchases and sales of our common stock
by the selling stockholders. Regulation M also restricts bids or purchases
made in order to stabilize the price of a security in connection with a
distribution of that security. The anti-manipulation rules under the Exchange
Act may apply to the sale of the shares in the market and to the activities of
the selling stockholders and their affiliates. These restrictions may affect
the marketability of the common stock.
USE OF PROCEEDS
We will not receive any proceeds from the offering.
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be passed
upon for us by Hughes & Luce, LLP in Dallas, Texas.
EXPERTS
The consolidated financial statements of Koss Corporation incorporated by
reference in Koss Corporation’s Annual Report on Form 10-K for the year ended
June 30, 2003, have been audited by PricewaterhouseCoopers LLP, independent
auditors, as set forth in their report included therein and incorporated herein
by reference. Such consolidated financial statements are incorporated herein
by reference in reliance upon such report given on the authority of such firm
as experts in accounting and auditing.
INDEMNIFICATION
Under Section 145 of the General Corporate Law of the State of Delaware,
we have broad power to indemnify our directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. Section 6.01 of our bylaws also provide for indemnification of our
directors, officers, employees and agents, if such person acted in good faith
and in a manner believed to be in and not opposed to our best interests, and,
with respect to any criminal action or proceeding, the indemnified party had no
reason to believe his or her conduct was unlawful.
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Article VIII of our restated certificate of incorporation provides that
the liability of our directors for monetary damages shall be indemnified in
accordance with and to the fullest extent permissible under Delaware law.
Pursuant to Delaware law, and our restated certificate of incorporation, this
includes elimination of liability for monetary damages for breach of the
directors’ fiduciary duty to us and our stockholders. These provisions do not
eliminate the directors’ duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief
will remain available under Delaware law. In addition, each director will
continue to be subject to liability for breach of the director’s duty of
loyalty to us, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision also does not affect a director’s responsibilities under
any other laws, such as the federal securities laws or state or federal
environmental laws.
Insofar as indemnification for liabilities arising under the Securities
Act 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 SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
We have obtained a policy of directors’ and officers’ liability insurance
that insures our directors and officers against the cost of defense, settlement
or payment of a judgment up to certain limits. For example, the policy limit
for defense costs is $10,000,000 and is part of, and not in addition to, the
overall limits of liability for the policy and such defense costs reduce and
may exhaust the maximum limits of liability of the policy.
10
PART II
Item 14. Other Expenses of Issuance and Distribution.
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Registration fee |
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$ |
27.27 |
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Accounting fees and expenses |
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2,000 |
* |
Legal fees and expenses |
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5,000 |
* |
Miscellaneous expenses |
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3,000 |
* |
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Total: |
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10,027.27 |
* |
We will pay all of the above expenses.
Item 15. Indemnification of Directors and Officers.
Consistent with the Delaware General Corporation law, our Certificate of
Incorporation includes a provision eliminating or limiting director liability
to us or our stockholders for monetary damages arising from certain acts or
omissions in the director’s capacity as a director. In addition, we maintain
insurance on behalf of our directors and executive officers insuring them
against any liability asserted against them in their capacities as directors or
officers or arising out of such status. Please also see the section titled
“Indemnification” on page 9 of the prospectus.
Item 16. Exhibits.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-4 of this registration statement, which Index is
incorporated herein by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: |
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act. |
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(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 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. |
II-1
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(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. |
(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 this 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.
(e) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(h) 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 foregoing provisions, 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
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.
II-2
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-3 and has duly caused this amendment No. 1 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Milwaukee, State of Wisconsin, on January 26,
2004.
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KOSS CORPORATION |
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By:
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/s/ Michael J. Koss |
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Michael J. Koss |
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Vice Chairman, President, |
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Chief Executive Officer, |
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Chief Operating Officer, |
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Chief Financial Officer |
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Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
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Title |
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Date |
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/s/ Michael J. Koss
Michael J. Koss |
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Vice Chairman, President,
Chief Executive Officer,
Chief Operating Officer,
Chief Financial Officer
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January 26, 2004 |
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/s/ Sujata Sachdeva
Sujata Sachdeva |
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Vice President – Finance,
Principal Accounting Officer
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January 26, 2004 |
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*
John C. Koss |
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Director of Koss Corporation
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January 26, 2004 |
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*
Martin F. Stein |
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Director of Koss Corporation
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January 26, 2004 |
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*
Thomas L. Doerr |
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Director of Koss Corporation
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January 26, 2004 |
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/s/ Michael J. Koss
Michael J. Koss |
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Director of Koss Corporation
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January 26, 2004 |
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*
John J. Stollenwerk |
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Director of Koss Corporation
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January 26, 2004 |
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*
Lawrence S. Mattson |
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Director of Koss Corporation
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January 26, 2004 |
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/s/ Michael J. Koss |
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Michael J. Koss |
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Attorney-in-Fact |
II-3
INDEX TO EXHIBITS
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| Exhibit |
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Description of Exhibits |
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| *5.1 |
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Opinion of Hughes & Luce, LLP |
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| *23.1 |
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Consent of Hughes & Luce, LLP (included in Exhibit 5.1) |
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| *23.2 |
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Consent of PricewaterhouseCoopers LLP |
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| *24.1 |
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Power of Attorney (included in Part II of this registration statement) |
II-4