Emerson Radio 10-K 2010
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Amendment No. 1)
For the Fiscal Year ended March 31, 2010
For the transition period from to
Commission File Number: 001-07731
EMERSON RADIO CORP.
(Exact name of registrant as specified in its charter)
Registrants telephone number, including area code: (973) 428-2000
Securities registered pursuant to Section 12(b) of the Act:
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. o YES þ NO.
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act).
o YES þ NO.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirement for the past 90 days. þ YES o NO.
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that registrant was required to submit and post such files.) o Yes o No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of larger accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). o YES þ NO.
Aggregate market value of the voting and non-voting common equity of the registrant held by non-affiliates of the registrant at September 30, 2009 (computed by reference to the last reported sale price of the Common Stock on the NYSE Amex on such date): $14,682,048
Number of Common Shares outstanding at July 29, 2010: 27,129,832
DOCUMENTS INCORPORATED BY REFERENCE:
Unless the context otherwise requires, the term the Company and Emerson, refers to Emerson Radio Corp. and its subsidiaries.
This Amendment No. 1 on Form 10-K/A (the Form 10/KA) to the Annual Report on Form 10-K (the Annual Report) of the Company for the fiscal year ended March 31, 2010, filed with the Securities and Exchange Commission (the SEC) on July 14, 2010, is filed solely for the purpose of including information that was to be incorporated by reference from the Companys definitive proxy statement pursuant to Regulation 14A of the Securities Exchange Act of 1934. The Company will not file its proxy statement for its annual meeting of stockholders within 120 days of its fiscal year ended March 31, 2010, and is therefore amending and restating in their entirety Items 10, 11, 12, 13 and 14 of Part III of the Annual Report. In addition, pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, the Company is including with this Form 10-K/A certain currently dated certifications. Except as described above, no other amendments are being made to the Annual Report. This Form 10-K/A does not reflect events occurring after the filing of the Annual Report on July 14, 2010 or modify or update the disclosure contained in the Annual Report in any way other than as required to reflect the amendments discussed above and reflected below.
TABLE OF CONTENTS
ITEM 10 DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The following table sets forth certain information regarding the current directors of Emerson Radio Corp. (Emerson, us or the Company).
Board of Directors and Committees
The Companys Board of Directors presently consists of eight directors and its composition is unchanged since the beginning of the Companys fiscal year ended March 31, 2010 (Fiscal 2010) Messrs. Ho, Ma, Pitts, Hon, Will, Mahathir, Sethi and Snellings currently serve on the Companys Board of Directors. Three of the eight current directors, Messrs. Mahathir, Sethi and Snellings, meet the definition of independence as established by the NYSE Amex and SEC rules.
The Companys Board of Directors has three standing committees, the Audit Committee, which is a separately-designated standing audit committee established in accordance with Section 3(a)(58)(A) of the Exchange Act, the Corporate Governance, Nominating and Compensation Committee and the Related Party Transaction Review Committee.
The Companys Audit Committee currently consists of Mr. Sethi and Mr. Snellings, each of whom meets the definition of independence as established by the NYSE Amex and SEC rules and its composition is unchanged since the beginning of Fiscal 2010. Mr. Sethi is currently the Chairman of the Audit Committee and the audit committee financial expert. Pursuant to Section 803(B)(2)(c) of the NYSE Amex Company Guide (the Company Guide), as a smaller reporting company, the Company is required to have an audit committee of at least two independent members, as defined by the listing standards of the NYSE Amex.
The Audit Committee is empowered by the Board of Directors, among other things, to: (i) serve as an independent and objective party to monitor the Companys financial reporting process, internal control system and disclosure control system; (ii) review and appraise the audit efforts of the Companys independent accountants; (iii) assume direct responsibility for the appointment, compensation, retention and oversight of the work of the outside auditors and for the resolution of disputes between the outside auditors and the Companys management regarding financial reporting issues; and (iv) provide the opportunity for direct communication among the independent accountants, financial and senior management and the Board of Directors. A copy of the Companys Audit Committee Charter is posted on the Companys website: www.emersonradio.com on the Investor Relations page.
The Board of Directors believes that the Company and its stockholders are best served by having leadership personnel from the Companys principal stockholder and individuals who have extensive experience in the Companys industry and knowledge of the Companys competitive landscape serve on its board of directors. The Board of Directors also believes that the backgrounds and qualifications of its directors, considered as a group, should provide a composite mix of experience, knowledge and abilities that will allow the Board of Directors to fulfill its responsibilities. Please refer to the biographies of each of the Companys directors for a discussion of the specific experience, qualifications, attributes or skills that led to the conclusion that each individual should serve as a director.
Codes of Ethics
The Company has adopted a Code of Ethics for Senior Financial Officers (Code of Ethics) that applies to its Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Controller and Treasurer. This Code of Ethics was established with the intention of focusing Senior Financial Officers on areas of ethical risk, providing guidance to help them recognize and deal with ethical issues, providing mechanisms to report unethical conduct, fostering a culture of honesty and accountability, deterring wrongdoing and promoting fair and accurate disclosure and financial reporting.
The Company has also adopted a Code of Conduct for Officers, Directors and Employees of Emerson Radio Corp. and Its Subsidiaries (Code of Conduct). We prepared this Code of Conduct to help all officers, directors and employees understand and comply with its policies and procedures. Overall, the purpose of the Companys Code of Conduct is to deter wrongdoing and promote (i) honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; (ii) full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the SEC and in other public communications made by the Company; (iii) compliance with applicable governmental laws, rules and regulations; (iv) prompt internal reporting of code violations to an appropriate person or persons identified in the Code of Conduct; and (v) accountability for adherence to the Code of Conduct.
The Code of Ethics and the Code of Conduct are posted on the Companys website: www.emersonradio.com on the Investor Relations page. If the Company makes any substantive amendments to, or grant any waiver (including any implicit waiver) from a provision of the Code of Ethics or the Code of Conduct, and that relates to any element of the Code of Ethics definition enumerated in Item 406 (b) of Regulation S-K, the Company will disclose the nature of such amendment or waiver on its website or in a current report on Form 8-K.
The following table sets forth certain information regarding the executive officers of Emerson:
Adrian Ma has served as the Companys Chief Executive Officer since March 30, 2006 and served as the Companys Chairman of the Board of Directors from March 30, 2006 through July 26, 2006. Mr. Ma continues to serve as a director. See Mr. Mas biographical information above.
Duncan Hon has served as the Companys Deputy Chief Executive Officer since November 10, 2009 and a director since February 2009. See Mr. Hons biographical information above.
Greenfield Pitts has served as the Companys Chief Financial Officer since February 2007 and a director since March 2006. See Mr. Pitts biographical information above.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended (the Exchange Act), requires the Companys directors, officers, and stockholders who beneficially own more than 10% of any class of its equity securities registered pursuant to Section 12 of the Exchange Act, to file initial reports of ownership and reports of changes in ownership with respect to the Companys equity securities with the Securities and Exchange Commission and the NYSE Amex. All reporting persons are required to furnish the Company with copies of all reports that such reporting persons file with the Securities and Exchange Commission pursuant to Section 16(a) of the Exchange Act.
Except as set forth below, based solely upon a review of Forms 3 and 4 and amendments to these forms furnished to the Company, all parties subject to the reporting requirements of Section 16(a) filed all such required reports during and with respect to Fiscal 2010.
Based on information obtained from Grande Holdings, the Company is aware that 3,900 and 387,299 shares of the Companys Common Stock that were beneficially held by Grande Holdings, were sold on March 1, 2010 and March 2, 2010, respectively. As of July 29, 2010, these transactions have not been reported on a Form 4 filed by Grande Holdings or any persons that file jointly with Grande Holdings.
ITEM 11 EXECUTIVE COMPENSATION AND OTHER INFORMATION
Summary Compensation Table
The following Summary Compensation Table sets forth information concerning compensation for services rendered in all capacities to the Company and its subsidiaries for Fiscal 2010 and Fiscal 2009 which was awarded to, earned by or paid to each person who served as the Companys principal executive officer at any time during Fiscal 2010, the two most highly compensated executive officers other than the principal executive officer who were serving as executive officers as of March 31, 2010 and up to two additional individuals for whom disclosure would have been provided but for the fact that the individual was not serving as an executive officer of the smaller reporting company as of March 31, 2010 (collectively, the Named Executive Officers).
During Fiscal 2010, the Company had employment agreements with certain of its Named Executive Officers, each of which is described below.
Duncan Hon. Duncan Hon, our Deputy Chief Executive Officer, entered into an employment agreement with the Company effective as of October 1, 2009, which sets forth the terms and conditions pursuant to which Mr. Hon shall serve as the Companys Deputy Chief Executive Officer. The agreement provides for an annual base salary of $300,000 and a discretionary bonus at the end of the Companys fiscal year as recommended by the Board of Directors. The initial term expires on September 30, 2010. During the term extensions, the Company has the right to terminate the agreement upon 90 days prior written notice and Mr. Hon has the right to terminate the agreement upon 90 days prior written notice.
Greenfield Pitts. Greenfield Pitts, our Chief Financial Officer, entered into an employment agreement with the Company on April 3, 2007, which sets forth the terms and conditions pursuant to which Mr. Pitts shall serve as the Companys Chief Financial Officer. The agreement provides for an annual base salary of $250,000 and a discretionary bonus at the end of the Companys fiscal year as recommended by the Board of Directors. The initial term expired on March 31, 2008. During the term extensions, the Company has the right to terminate the agreement upon 90 days prior written notice and Mr. Pitts has the right to terminate the agreement upon 90 days prior written notice.
John Spielberger. John Spielberger, the Companys former President-North American Operations, entered into an employment agreement with the Company on October 15, 2007, which provided that Mr. Spielberger would serve as the Companys President-North American Operations. The agreement provided for an annual base salary of $250,000 and a discretionary bonus at the end of the Companys fiscal year as recommended by the Board of Directors. The initial term expired on October 31, 2008. During the term extensions, the Company had the right to terminate the agreement upon 90 days prior written notice and Mr. Spielberger had the right to terminate the agreement upon 90 days prior written notice. Pursuant to this agreement, on December 15, 2009, Mr. Spielberger provided the Company with 90 days prior written notice to terminate his employment agreement with the Company and such agreement was terminated on March 15, 2010.
Outstanding Equity Awards at Fiscal Year End
The following table provides certain information concerning outstanding equity awards held by each of our Named Executive Officers at March 31, 2010.
Outstanding Equity Awards at Fiscal Year-End
Compensation of Directors
During Fiscal 2010, our directors who were not employees (Outside Directors), specifically Messrs. Ho, Mahathir, Sethi, Snellings and Will were paid $45,000, $65,838, $60,000, $60,000 and $65,838, respectively, for serving on the Board of Directors and on our various committees during the period. The Company does not compensate directors who are employees of the Company for their services as directors.
Outside Directors are each paid an annual directors fee of $45,000. Each Outside Director serving on a committee of the Board of Directors receives an additional fee of $15,000 per annum with no additional fee for serving as chairman of a committee. The Company does not pay any additional fees for attendance at meetings of the Board of Directors or the committees. All directors fees are paid in four equal quarterly installments per annum and are pro-rated in situations where an Outside Director serves less than a full one year term.
Additionally, each Outside Director is eligible to participate in the Companys 2004 Non-Employee Outside Director Stock Option Plan. The Companys directors are reimbursed their expenses for attendance at meetings.
The following table provides certain information with respect to the compensation earned or paid to the Companys Outside Directors during Fiscal 2010.
ITEM 12 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following table sets forth, as of July 29, 2010, the beneficial ownership of (i) each current director; (ii) each of the Companys Named Executive Officers; (iii) the Companys current directors and executive officers as a group; and (iv) each stockholder known by the Company to own beneficially more than 5% of the Companys outstanding shares of common stock. Common stock beneficially owned and percentage ownership as of July 29, 2010 was based on 27,129,832 shares outstanding. Except as otherwise noted, the address of each of the following beneficial owners is c/o Emerson Radio Corp., 85 Oxford Drive, Moonachie, New Jersey 07074.
Equity Compensation Plan Information
The following table gives information about the Companys common stock that may be issued upon the exercise of options and rights under our 1994 Stock Compensation Program, 1994 Non-Employee Director Stock Option Plan, Emerson Radio Corp. 2004 Employee Stock Incentive Plan and 2004 Non-Employee Outside Director Stock Option Plan, as of March 31, 2010 (the Plans). The 1994 Plans expired in July 2004 and the remaining Plans are the only equity compensation plans in existence as of March 31, 2010.
ITEM 13 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
From time to time, the Company engages in business transactions with its controlling stockholder, The Grande Holdings Limited and its subsidiaries (Grande). As of July 29, 2010, Grande beneficially owned approximately 56.2% of the Companys outstanding common stock. Mr. Ho, the Chairman of the Board of Directors of the Company, also serves as Chairman of the Grande Holdings Limited. Set forth below is a summary of such transactions.
Grandes Ownership Interest in Emerson. At March 31, 2010, approximately 56.2% of the Companys outstanding common stock was owned by direct or indirect subsidiaries of The Grande Holdings Limited, a Bermuda corporation.
Related Party Transactions
Sales of goods. Prior to February 2008, Emerson, from time to time, purchased products on behalf of Sansui Sales PTE Ltd. (Sansui Sales) and Akai Sales PTE Ltd. (Akai Sales) from third-party suppliers and sold these goods to Sansui Sales and Akai Sales. Emerson utilized its own cash to pay Sansui Sales and Akai Sales suppliers. Emerson invoiced Sansui Sales and Akai Sales an amount that was marked up between two and three percent from the cost of the product. In September 2009, Emerson and Akai Sales
reached an agreement related to certain defective products that Emerson had procured and sold to Akai Sales under this arrangement during the third quarter of fiscal 2007 under which Emerson agreed to accept a net charge of approximately $59,000 approximately $101,000 from Akai Sales, upon which Emerson originally recognized approximately $4,000 of gross profit in the third quarter of fiscal 2007, offset by a credit from the factory from which Emerson procured the product of approximately $42,000. In September 2009, Emerson netted amounts owed to it from Akai Sales against this liability and settled this liability in full with Akai Sales during September 2009. At March 31, 2010, the Company has $0 due to or from Sansui Sales or Akai Sales.
Leases and Other Real Estate Transactions.
Rented Space in Hong Kong
Effective May 15, 2009, Emerson entered into an amended lease agreement with The Grande Properties Ltd., which shares the same ultimate major shareholder as Grande (Grande Properties), pursuant to which the space rented from Grande Properties was increased from 18,476 square feet to 19,484 square feet. This amended agreement by its terms expired on December 31, 2009.
Effective June 1, 2009, Emerson entered into another lease agreement with Grande Properties, pursuant to which additional space was rented from Grande Properties totaling 17,056 square feet for Emersons use to refurbish certain returned products. In connection with this new space rental, during June 2009, Emerson paid a security deposit of approximately $71,400 to Grande Properties. This lease agreement expired on December 31, 2009.
Effective January 1, 2010, Emerson entered into a lease agreement with Lafe Properties (Hong Kong) Limited, formerly known as The Grande Properties Ltd., (Lafe), pursuant to which Emerson rented 36,540 square feet from Lafe for the purpose of housing its Hong Kong based office personnel and for its use to refurbish certain returned products.
Rent expense and related service charges associated with these lease agreements with Grande totaled $703,000 for fiscal 2010.
Emerson owed Lafe $1,703 related to this activity at March 31, 2010, and a security deposit paid by Emerson of $153,000 on the leased property described in this paragraph was held by Lafe as of March 31, 2010.
Rented Space in the Peoples Republic of China
In December 2008, Emerson signed a lease agreement with Akai Electric (China) Ltd., a subsidiary of Grande, concerning the rental of office space, office equipment, and lab equipment for Emersons quality assurance personnel in Zhongshan, Peoples Republic of China. The lease term began in July 2007 and ended by its terms in June 2009, at which time the agreement renews automatically on a month-by-month basis unless canceled by either party. The agreement has not been canceled by either party, and therefore remains in full force and effect as of March 31, 2010.
Rent charges with Akai Electric (China) Ltd. totaled approximately $109,000 for fiscal 2010.
Emerson owed Akai Electric (China) Ltd. $0 related to the agreement at March 31, 2010. A security deposit paid by Emerson to Akai Electric (China) Ltd. of $31,600 on the leased property was held by Akai Electric (China) Ltd. as of March 31, 2010.
In June 2009, Emerson paid a consulting fee of approximately $6,000 to a director of Grande related to its licensing business, certain potential business opportunity and the investigation of various international sales opportunities.
During September 2009, Nakamichi Corporation Ltd. invoiced Emerson approximately $1,000 for audio samples. As of March 31, 2010, Emerson owed Nakamichi Corporation Ltd. $0 as a result of this invoice.
In December 2009, Emerson paid a consulting fee and related expenses of approximately $8,000 to a director of Emerson for investigating a potential acquisition in 2008 and 2009.
In February 2010, Emerson paid a consulting retainer fee of approximately $16,000 to a director of Emerson for work to be performed by this director relating to the Emerson Radio Shareholder Derivative Litigation (The Berkowitz Litigation) described in Footnote 14 Legal Proceedings of the Companys Annual Report on Form 10-K for the period ended March 31, 2010. Subsequent to the end of fiscal 2010, further amounts totaling $31,382 were paid to this director in April and June 2010 for this work upon presentation to Emerson by this director of an invoice covering the period December 2009 through June 2010. In May 2010, Emerson
signed an agreement with this director, which formalized the arrangement and commits Emerson to paying a consulting fee of a minimum of $12,500 per quarter to this director relating to The Berkowitz Litigation.
During fiscal 2010, Emerson paid Innovative Capital Limited, a subsidiary of Grande, consulting fees of $125,000 for services rendered to Emerson during the first six months of fiscal 2010 by personnel of Grande. This consulting arrangement ended on September 30, 2009. Emerson owed $0 to Innovative Capital Limited at March 31, 2010 related to this arrangement.
During fiscal 2010, Akai Sales invoiced Emerson approximately $26,000 for travel expenses which Akai Sales paid on Emersons behalf. As of March 31, 2010, Emerson owed Akai Sales approximately $26,000 as a result of these invoices.
On April 7, 2010, upon a request made to the Company by its foreign controlling shareholder, S&T International Distribution Limited (S&T), a subsidiary of Grande, the Company entered into an agreement with S&T whereby the Company returned to S&T on April 7, 2010 that portion of the taxes that the Company had withheld from the dividend paid on March 24, 2010 to S&T, which the Company believes is not subject to U.S. tax based on the Companys good-faith estimate of its accumulated earnings and profits. (see Note 17 Subsequent Event to the Companys Annual Report on Form 10-K for the period ended March 31, 2010).
Review and Approval of Transactions with Related Parties
It is the policy of the Company that all proposed transactions between the Company and related parties, as defined by Statement of Financial Accounting Standard (SFAS) Number 57, which are greater than $100,000 be pre-approved by the Related Party Transaction Review Committee of the Board of Directors.
As of July 29, 2010, Grande beneficially owned an aggregate of 15,243,283 shares of the Companys common stock, which represents approximately 56.2% of the shares of common stock currently outstanding. Accordingly, the Company is a controlled company (a Controlled Company), as such term is defined in Section 801(a) of the Company Guide. Because the Company is a Controlled Company, it is exempt from (i) the requirement that at least a majority of the directors on its Board of Directors be independent as defined under the NYSE Amex listing standards, (ii) the requirement to have the compensation of the Companys executives determined by a compensation committee comprised solely of independent directors or by a majority of the boards independent directors and (iii) from the requirement to have director nominees selected by a nominating committee comprised entirely of independent directors or by a majority of the independent directors.
The Companys Board of Directors presently consists of eight directors Messrs. Ho, Ma, Pitts, Hon, Will, Mahathir, Sethi and Snellings. Three of the eight current directors, Messrs. Mahathir, Sethi and Snellings, meet the definition of independence as established by the NYSE Amex listing standards and SEC rules.
The Companys Audit Committee currently consists of Mr. Sethi and Mr. Snellings, each of whom meets the definition of independence as established by the NYSE Amex and SEC rules. Mr. Sethi is currently the Chairman of the Audit Committee and the audit committee financial expert. Pursuant to Section 803(B)(2)(c) of the NYSE Amex Company Guide (the Company Guide) as a smaller reporting company, the Company is required to have an audit committee of at least two independent members, as defined by the listing standards of the NYSE Amex.
Under Sections 804 and 805 of the Company Guide, the Company is exempt from the requirement to have the compensation of its executives determined by a compensation committee comprised solely of independent directors or by a majority of the boards independent directors and from the requirement to have director nominees selected by a nominating committee comprised entirely of independent directors or by a majority of the independent directors because the Company is a Controlled Company. The Companys Corporate Governance, Nominating and Compensation Committee currently consists of Messrs. Ma, Mahathir and Will, one of whom the Board has determined is independent as defined under the NYSE Amex listing standards.
ITEM 14 PRINCIPAL ACCOUNTANT FEES AND SERVICES
In accordance with the requirements of the Sarbanes-Oxley Act of 2002 and the Audit Committees charter, all audit and audit-related work and all non-audit work performed by the Companys independent accountants, MSPC Certified Public Accountants and Advisors, A Professional Corporation (MSPC), is approved in advance by the Audit Committee, including the proposed fees for such work. The Audit Committee is informed of each service actually rendered.
Applicable law and regulations provide an exemption that permits certain services to be provided by the Companys outside auditors even if they are not pre-approved. We have not relied on this exemption at any time since the Sarbanes-Oxley Act was enacted.
ITEM 15 Exhibits, Financial Statement Schedules
a(3) Exhibits. The following exhibits are filed with this Amendment No. to the Annual Report on Form 10-K/A.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Amendment No. 1 on Form 10-K/A to the Registrants Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.
EMERSON RADIO CORP.
Dated: July 29, 2010
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.