As filed with the Securities and Exchange Commission on ___________, 1996
Registration No. 33 _____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________
SPATIALIGHT, INC.
(Exact name of registrant as specified in its charter)
___________________
New York 3998 16-1360382
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.
WILLIAM E. HOLLIS, PRESIDENT
Spatialight, Inc.
8-C Commercial Boulevard
Novato, California 94949
(415) 883-3693
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices and
name, address and telephone number of agent for service)
________________
Copies to:
Alan S. Lockwood, Esq.
Boylan, Brown, Code, Fowler,
Vigdor & Wilson, LLP
2400 Chase Square
Rochester, New York 14604
(716) 232-5300
_____________
Approximate date of commencement of proposed sale to the public: As soon as
practicable 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.
|_|
_____________
If any of the securities being registered on this Form are to offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
[cover page continues]
<PAGE>
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_| ________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
===================================================================================================
Title of each class Amount Proposed maximum Proposed Amount of
of securities to be to be offering price maximum registration
registered registered per share(1) aggregate offering fee
price
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<S> <C> <C> <C> <C>
Common Stock, par value 2,135,000 $.50 $1,067,500 323.48
$.01 per share
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Common Stock, par value 1,585,000(2) $.50 792,500 240.15
$.01 per share, representing
stock issuable upon
exercise of Warrants
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</TABLE>
(1) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c), on the basis of the average high and low prices of the
Registrant Common Stock as reported on the Nasdaq issues on November 22,
1996.
(2) The number of shares of Common Stock specified above is the number which
may be acquired upon exercise of certain of the Company's warrants
described in the Prospectus forming a part of this Registration Statement
(the "Warrants"). This Registration Statement covers, pursuant to Rule 416,
in addition, such indeterminable number of shares of Common Stock as may be
issued on exercise of the Warrants by reason of adjustments in the number
of shares of Common Stock issuable pursuant to antidilution provisions
contained in the Warrants. Since such additional Common Stock will, if
issued, be issued for no additional consideration, no registration fee is
required.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until 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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PROSPECTUS
SPATIALIGHT, INC.
2,135,000 Shares of Common Stock
1,585,000 Shares of Common Stock
issuable upon exercise of Warrants
There are hereby offered 2,135,000 shares of common stock, $.01 par value
per share ("Common Stock") of Spatialight, Inc. (formerly known as Sayett Group,
Inc.)(the "Company") and 1,585,000 shares of Common Stock issuable upon exercise
of certain outstanding Warrants of the Company. The Common Stock is sometimes
hereinafter collectively referred to as the "Securities." The Company will
receive the proceeds of exercise of the Warrants, if any, and will use such
proceeds, if any, for working capital. The Warrants are exercisable at a price
of $1.00 per share through July 15, 1997, $1.25 through July 15, 1999, and $1.50
through July 15, 2001.
All of the 3,720,000 shares of Common Stock are being offered by selling
shareholders (the "Selling Shareholders"). See "SELLING SHAREHOLDERS" . The
Company will not receive any of the proceeds from the sale of the shares being
offered by the Selling Shareholders.
--------------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK AND SHOULD BE CONSIDERED
ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT. SEE "RISK
FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
--------------------------
The date of this Prospectus is November 20, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is a reporting company under the Securities Exchange Act of
1934. The reports and other information filed by the Company may be inspected
and copied at the public reference facilities of the Securities Exchange
Commission in Washington, D.C., and copies of such material can be obtained from
the Public Reference Section of the Commission, Washington, D.C. 20549 at
prescribed rates. The Commission also maintains a Web site that contains
reports, proxy and information statements and other information regarding
issuers (including the Company) that file electronically with the Commission.
The address of the Commission's Web site is http://www.sec.gov.
The Company's common stock is listed on the NASDAQ National Market System;
reports and other information concerning the Company can be inspected at the
offices of NASD, 1735 K Street, N.W., Washington, D.C.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated as of their respective dates in the Prospectus by reference:
(a) (i) The Company's Form 10-KSB (excluding Item 7) for the fiscal year
end December 31, 1995, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended ("Exchange Act").
(ii) The Company's Form 10-KSB/A dated November 22, 1996 and filed
November 26, 1996.
(b) All other reports, if any, filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year
ended December 31, 1995; including
(i) The Company's Form 10-QSB and 10-QSB/A for the period ended March
31, 1996;
(ii) The Company's Form 10-QSB for the period ended June 30, 1996;
(iii) The Company's Form 10-QSB for the period ended September 30,
1996;
(iv) The Company's Form 8-K, dated December 29, 1995;
(v) The Company's Form 8-K, dated July 10, 1996, Form 8-K/A dated
July 26, 1996, Form 8-K/A (Amendment No. 2), relating thereto,
dated September 17, 1996, and Form 8-K/A (Amendment No. 3),
relating thereto, dated November 20, 1996;
(vi) The Company's Notice of Annual Meeting, Proxy Statement and Form
of Proxy dated April 15, 1996.
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on
February 5, 1992, effective on February 7, 1992, under Section 12 of
the Exchange Act, including any amendment or description filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the termination
of the offering of the shares offered
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hereby, shall be deemed to be incorporated by reference in this Prospectus and
to be a part hereof from the date of filing of such documents.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or all documents
incorporated herein by reference (not including the exhibits to such documents
unless such exhibits are incorporated by reference in such documents). Requests
for such copies should be directed to William E. Hollis, President, Spatialight,
Inc., 8-C Commercial Boulevard, Novato, CA 94949, (415) 883-3693.
THE COMPANY
Spatialight, Inc. (together with its subsidiaries, the "Company") is in the
business of designing, producing and commercializing miniature (.75" diagonal),
high resolution active matrix liquid crystal displays ("LCDs"), also known as
spatial light modulators ("SLMs"). The SLMs are manufactured domestically and
provide high quality images at a significant reduction in costs over other types
of displays currently available in the market. The SLMs are capable of handling
computer and video output at very high speeds, clarity and contrast. The Company
has been producing SLMs in small volumes, which have been sold to customers
involved in the development of applications of this technology, including
computer monitors, head-mounted displays, optical computing and other projection
applications.
The Company has identified additional applications and markets for its SLM
devices, including light-weight, highly efficient, low-cost computer projection
systems, large computer monitors and head-mounted displays for use in defense
and aerospace applications and for computer training and gaming devices. In
addition, the Company believes that its SLMs will have applications in optical
computing systems and in high-speed, large-capacity optical data storage systems
and holographic imaging systems.
The address and telephone number of the Company's principal executive
offices are 8-C Commercial Boulevard, Novato, California 94949; (415) 883-1693.
The Company was organized under the laws of the State of New York in 1989 under
the name of "Sayett Acquisition Company, Inc."; it subsequently changed its name
to Sayett Group, Inc. and, in June 1996, changed its name again to Spatialight,
Inc.
RECENT DEVELOPMENT
On July 10, 1996, the Company executed definitive documents relating to the
sale of 1,585,000 shares of its common stock, par value $.01 to two (2) separate
investors for a per-share price of $1.125. Pursuant to the Agreement, the
Company also granted Warrants to purchase an additional 1,585,000 shares,
exercisable at any time prior to July 15, 2001 at a strike price of $1.00 before
July 15, 1997, $1.25 through July 15, 1999 and $1.50 thereafter. The closings of
the purchases and transfer of funds totaling $1,783,125 occurred on July 11,
1996. On November 11, 1996, in connection with the approval of the investors for
an additional offering of common stock, the Company entered into an Amendment of
the Agreement which re-priced the original offering to $.8352 per share and
issued an additional 550,000 shares to the original investors.
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RISK FACTORS
The purchase of the Securities offered hereby involves a high degree of
risk. Purchasers should carefully consider, among other information, the
information presented under the caption "RISK FACTORS" in this Prospectus,
including the Company's history of operating losses, uncertainty of successful
commercialization of product, rapid technology change and dependence on key
personnel.
An investment in the Securities offered hereby involves a high degree of
risk and the Securities should not be purchased by persons who cannot afford the
loss of their entire investment. In addition to the other information contained
in this Prospectus, the following information should be considered carefully by
potential purchasers in evaluating the Company, its business and the shares of
Common Stock offered hereby.
Financial Risks
History of Operating Losses; Accumulated Deficit; Uncertainty of Future
Financial Results. As of September 30, 1996, the Company had an accumulated
deficit of $7,066,697. The Company has realized significant losses in the past
and could have quarterly and annual losses in the future. The Company has
generated limited revenues and no profits from operations. The development,
commercialization and marketing of the Company's products will require
substantial expenditures for the foreseeable future. Consequently, the Company
may continue to operate at a loss for the foreseeable future and there can be no
assurance that the Company's business will operate on a profitable basis.
Negative Cash Flow from Operating Activities. The Company is experiencing
negative cash flow from operations resulting in the need to fund ongoing
operations from financing activities. The future existence and profitability of
the Company is dependent upon its ability to obtain additional funds to finance
operations and expand operations in an effort to achieve profitability from
operations. No assurance can be given that the Company's business will
ultimately generate sufficient revenue to fund the Company's operations on a
continuing basis.
Development Stage of Prototype Products; Uncertainty of Successful
Commercialization. Most of the Company's revenue to date has been derived from
research and development contracts and limited sales of its high-end SLM
devices. Although the Company has demonstrated its SLM devices based on its core
technology, the Company has not yet produced any prototype SLM products with
quality and resolution sufficient to satisfy commercial end-use applications.
The Company recently entered into a contract to produce an engineering prototype
of a consumer product for mass production. However, further development and
testing will be necessary before this product or the Company's other proposed
products will be available for commercial end-use applications. Delays in
development may result in the Company's introduction of its products later than
anticipated, which may have an adverse effect on both the Company's financial
and competitive position. Moreover, there can be no assurance that the Company
will ever be successful in developing, manufacturing or commercializing a
commercially viable SLM device or any of its proposed display products. In
addition, there is no assurance that an SLM device or any of the Company's
display products will be
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<PAGE>
technically or commercially successful or that the Company will be able to
manufacturer adequate quantities of its SLM devices or any of its display
products at commercially acceptable cost levels or on a timely basis.
Additional Financing Requirements. The Company's products being developed
and that may be developed in the future will require the investment of
substantial additional time as well as financial and other resources in order to
become commercially successful. Following the research and development period,
the Company's products will require market development. The Company's operating
revenues and cash resources may not be sufficient over the next several years
for the commercialization by itself of any of the products currently in
development. Consequently, the Company may require additional financing. There
can be no assurance, however, that the Company can conclude such commercial
arrangements or obtain additional capital when needed on acceptable terms, if at
all. Furthermore, the Company has no bank line or credit or other working
capital financing source.
Going Concern Uncertainty. The report of the Company's independent auditors
dated February 29, 1996 (November 11, 1996 as to Notes 5 and 10) with respect to
the consolidated financial statements of the Company as of and for the fiscal
years ended December 31, 1995 and 1994 expresses an unqualified opinion and
includes an explanatory paragraph relating to the Company's recurring operating
losses and the continuing decline in stockholders' equity which raise
substantial doubt about the Company's ability to continue as a going concern.
Possible Restriction on Ability to Utilize Net Operating Loss Carry
Forwards Resulting from Change in Equity Ownership. At December 31, 1995, the
Company had net operating loss ("NOL") carry-forwards of approximately
$4,000,000, available to offset United States taxable income. The NOL
carry-forwards will expire over a period of time through 2010. The amount of
these loss carry-forwards which can be used to reduce future taxable income, if
any, may be reduced by, among other things, future changes in the ownership of
the Company's Common Stock. Internal Revenue Code Section 382 would limit the
amount of future taxable income, if any, that could be offset by the NOL carry
forwards if, at any time, the percentage of the stock of the Company owned by
one or more 5 percent shareholder increases by more than 50 percent over the
lowest percent of the Company's stock owned by such shareholder during the
preceding three year period. In the event of a significant change in ownership
of the Company, the utilization of such net operating loss carry-forwards could
be substantially limited.
Business Risks
Lack of Sales, Marketing and Distribution Experience. The Company currently
employs no full-time sales or marketing specialists. The Company intends to form
alliances with corporate partners for the marketing and distribution of certain
of its anticipated display products. There can be no assurance that the Company
will be successful in forming and maintaining such alliances or that the
Company's partners will devote adequate resources to successfully market and
distribute these anticipated products. There can be no assurance that the
Company will be able to attract and retain qualified marketing and sales
personnel, that the Company will be able to enter into satisfactory agreements
with marketing partners or that the Company or its marketing partners will be
successful in gaining market acceptance for its anticipated products.
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No Assurances of Successful Manufacturing. The Company has no experience
manufacturing SLM devices or display products. The Company's facility is
designed principally for research and development and small scale assembly and
inventory storage, and the Company currently engages outside manufacturers to
produce its SLM devices. The Company is negotiating with several manufacturers
for establishment of full-scale integrated manufacturing capacity for its SLM
devices and has reached an agreement with one manufacturer for fabrication of
silicon wafers. However, no decision has been made by any such manufacturer to
establish such a capability and there can be no assurance that any of them will
do so. In the event any such manufacturer establishes a full-scale integrated
manufacturing capability, the Company could become dependent on such
manufacturer for the manufacture of SLM devices. The termination or cancellation
of the Company's agreement with the manufacturer could adversely affect the
Company's ability to manufacture its products. In such event, the Company could
be required to establish an alternative manufacturing relationship or establish
its own manufacturing capability. There can be no assurance that the Company
would be able to establish such a relationship on acceptable terms or its own
capability; in any event the time required to establish such a substitute
relationship or capability could substantially delay the commercialization of
the Company's SLM devices and display products, which, in turn, could have a
substantial adverse impact on the Company's results of operations and financial
condition.
Patents and Protection of Proprietary Technology. The Company's ability to
compete effectively with other companies will depend, in part, on the ability of
the Company to maintain the proprietary nature of its technologies. Although the
Company has been awarded or has filed applications for several patents in the
United States, there can be no assurance as to the degree of protection offered
by these patents, or as to the likelihood that pending patents will be issued.
Furthermore, the Company has not yet applied for or obtained any foreign
patents. There can be no assurance that competitors, in both the United States
and foreign countries, many of which have substantially greater resources and
have made substantial investments in competing technologies, will not seek to
apply for and obtain patents that will prevent, limit or interfere with the
Company's ability to make and sell its products or intentionally infringe the
Company's patents. The defense and prosecution of patent suits is both costly
and time-consuming, even if the outcome is favorable to the Company. This is
particularly true in foreign countries because the expenses associated with such
proceedings can be prohibitive. In addition, there is an inherent
unpredictability regarding obtaining and enforcing patents in foreign countries.
An adverse outcome in the defense of a patent suit could subject the Company to
significant liabilities to third parties, require disputed rights to be licensed
from third parties, or require the Company to cease selling its products. The
Company also relies on unpatented proprietary technology and there can be no
assurance that others may not independently develop the same or similar
technology or otherwise obtain access to the Company's proprietary technology.
To protect its rights in these areas, the Company requires all employees and
most consultants, advisors and collaborators to enter into confidentiality
agreements. There can be no assurance, however, that these agreements will
provide meaningful protection for the Company's trade secrets, know-how or other
proprietary information in the event of any unauthorized use, misappropriation
or disclosure of such trade secrets, know-how or other proprietary information.
To date, the Company has no experience in enforcing its confidentiality
agreements.
Rapid Technology Change; Competition. The electronic imaging display
industry has undergone rapid and significant technological change. The Company
expects the technology to continue to develop rapidly, and the Company's success
will depend significantly on its ability to maintain a competitive position.
Rapid technological development may result in actual and proposed
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products or processes becoming obsolete before the Company recoups a significant
portion of related research and development, acquisition and commercialization
costs. If the Company is successful in the development of a commercially viable
SLM device and its proposed display and other products, the Company's ability to
compete will depend in part upon the consistency of product quality and
delivery, as well as pricing, technical capability and servicing, in addition to
factors within and outside its control, including the success and timing of
product introductions by the Company and its competitors, product performance
and price, product distribution and customer support. There can be no assurance
that the Company's competitors will not succeed in developing technologies and
products that are equally or more effective than any which are being developed
by the Company or which would render the Company's technology, SLM devices or
display and other products obsolete and non-competitive. In addition, certain
competitors have substantially greater financial, technical and other resources
than the Company. The Company may face an aggressive, well financed competitive
response that may include misappropriation of the Company's intellectual
property or predatory pricing.
The electronic imaging display industry has been characterized by rapid and
significant technological advances. There can be no assurance that the Company's
SLM devices and display products will be reflective of such advances or that the
Company will have sufficient funds to invest in new technologies or products or
processes. A number of companies in the United States assemble workstation
monitors using LCDs and cathode-ray tubes ("CRTs") purchased from Japan. A
number of Japanese companies build monitors around their LCDs and CRTs. Korean
companies are also entering the LCD and CRT monitor market. Development of
improved high-definition LCDs and CRTs continues to receive significant
attention by these and other companies. Although the Company believes that its
SLM products should improve LCD performance beyond that of commercially
available LCD- and CRT-based display products, there is no assurance that
manufacturers of LCDs or CRTs will not develop further improvements of LCD or
CRT technology that would eliminate or diminish the Company's anticipated
advantage.
Product Liability. As a manufacturer and marketer of electronic equipment
and components, the Company may be subject to potential product liability
claims. There can be no assurance that the Company will carry sufficient
insurance to cover all possible liabilities. In the event of a successful suit
against the Company, such an insufficiency of insurance coverage could have a
material adverse impact on the financial condition of the Company. In addition,
the cost of defending or settling a product liability action and the negative
publicity arising therefrom could have a material adverse impact on the Company.
The Company is not aware of any current pending or threatened product liability
claim against it.
Dependence on Key Personnel. The Company is dependent upon its key
scientific and management personnel, including its Chief Executive Officer,
William Hollis, and its Vice President, Dean Irwin. The Company does not
maintain key-man life insurance on Messrs. Hollis or Irwin. In 1996, the Company
entered into a three-year employment agreement with Mr. Hollis and a two-year
employment agreement with Mr. Irwin. The loss of the services of one or more key
individuals may have a material adverse impact on the Company. The Company's
success will also depend on its ability to attract and retain other highly
qualified scientific, marketing, manufacturing and other key management
personnel. The Company faces competition for such personnel and there can be no
assurance that the Company will be able to attract or retain such personnel.
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Market Risks
Volatility of Share Price. The market price of the Company's shares since
its initial public offering in 1992 has been volatile. Factors such as
announcements of technological innovations or new commercial products by the
Company or its competitors, patent or proprietary rights, development or other
matters may have a significant impact on the market price of the Common Stock.
Lack of Dividends. The Company has not paid dividends on its Common Stock
since its inception and does not intend to pay any dividends on its Common Stock
in the foreseeable future.
USE OF PROCEEDS
All of the shares being offered hereunder are being offered by the Selling
Shareholders. The Company will incur certain expenses in connection with this
offering; however, it will not receive any of the proceeds hereof. All proceeds
will go to the Selling Shareholders to be used for their own purposes.
In the event that the holders of the Warrants exercise the Warrants, the
proceeds of the exercise would go to the Company. If all 1,585,000 Warrants are
exercised, the Company will receive $1,585,000 if exercised before July 15,
1997, $1,981,250 if exercised through July 15, 1999, and $2,377.500 if exercised
thereafter. Should the Company receive any such funds, it currently plans to
utilize those proceeds to further its technology development efforts and for
working capital.
SELLING SECURITY HOLDERS
All 3,720,000 shares of Common Stock offered hereunder are being offered by
Sabotini, Ltd., c/o Wychwood Trust Limited, 3 Castle Street, Castletown, Isle of
Man IM91LF, British Isles and Jalcanto, Ltd., c/o Wychwood Trust Limited, 3
Castle Street, Castletown, Isle of Man IM91LF, British Isles, and Michael Todd
McMahon and Heidi Lyn McMahon, c/o McMahon & Associates, P.O. Box 1807,
Danville, CA 96520. Sabotini, Ltd. and Jalcanto, Ltd. each currently owns
1,067,500 shares of Common Stock; Sabotini, Ltd. currently owns Warrants to
acquire an additional 792,500 shares. Jalcanto, Ltd. has transferred the
Warrants to purchase 792,500 shares which it obtained at closing to Michael Todd
McMahon (396,250 Warrants) and Heidi Lyn McMahon (396,250 Warrants). Prior to
their purchase of the Company Common Stock which is the subject of this
offering, on July 11, 1996, and November 11, 1996 none of the Selling
Shareholders had any relationship to the Company, except that Michael Todd
McMahon served as a finder for the investment by the Selling Shareholders and
was paid a fee therefor by the Company. Following the offering, and assuming
that all shares offered hereunder are sold, the Selling Shareholders will own no
shares of the Company's Common Stock.
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The Company has informed the Selling Shareholders that the
anti-manipulative rules under the Securities Exchange Act of 1934 (Rules 10b-6
and 10b-7) may apply to their sales of Shares in the Market. Also, the Company
has informed the Selling Shareholders of the need for delivery of copies of the
Prospectus in connection with any sale of securities registered hereunder in
accordance with applicable prospectus delivery requirements.
In connection with such sales, the Selling Shareholders and any
participating brokers and dealers may be deemed to be "underwriters" as defined
in the Securities Act. In addition, any of the Shares that qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
Prospectus.
In order to comply with certain state securities laws, if applicable, the
Common Shares will not be sold in a particular state unless such securities have
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and complied with.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Shareholders or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made in any one or more transactions (which may involve block transactions) in
the over-the-counter market, on NASDAQ, and any exchange in which the Common
Shares may then be listed, or otherwise in negotiated transactions or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Shareholders may effect such transactions by selling Shares
to or through broker-dealers, and such broker-dealers may sell the shares as
agent or may purchase such Shares as principal and resell them for their own
account pursuant to this Prospectus. Such broker-dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Shareholders and/or purchasers of Shares from whom they may act
as agent (which compensation may be in excess of customary commission).
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be passed
upon for the Company and the Selling Shareholders by the law firm of Boylan,
Brown, Code, Fowler, Vigdor &Wilson, LLP, 2400 Chase Square, Rochester, New York
14604.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-KSB/A for the year ended
December 31, 1995 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report (which report expresses an unqualified
opinion and includes an explanatory paragraph relating to the Company's
recurring operating losses and the continuing decline in stockholders' equity
which raise substantial doubt about the Company's ability to continue as a going
concern), which is incorporated herein by reference, and has been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
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ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission,
Washington, DC 20549, a Registration Statement on Form S-3 under the Act, with
respect to the securities offered hereby. This Prospectus, filed as a part of
the Registration Statement, does not contain certain information set forth in or
annexed as exhibits to the Registration Statement, as permitted by the Rules and
Regulations of the Commission. For further information with respect to the
Company and the securities offered hereby, reference is made to the Registration
Statement and to the Exhibits filed as part thereof, which may be inspected at
the office of the Securities and Exchange Commission without charge, or copies
thereof may be obtained therefrom upon payment of a fee prescribed by the
Securities and Exchange Commission.
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No dealer, salesman or any other person has been authorized in connection
with this offering to give any information or to make any representations other
than those contained in this Prospectus. This Prospectus does not constitute an
offer or a solicitation in any jurisdiction to any person to whom it is unlawful
to make such an offer or solicitation. Neither the delivery of this Prospectus
nor any sale made hereunder shall under any circumstances, create an implication
that there has been no change in the circumstances of the Company or the Facts
herein set forth since the date hereof.
--------------------------
================================================================================
================================================================================
SPATIALIGHT, INC.
2,135,000 Shares of Common Stock
1,585,000 Shares of Common Stock Issuable upon Exercise of
Certain Outstanding Warrants
Offering Price $.50 Per Share
================================================================================
11
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of issuance and Distribution
The following table sets forth all expenses, other than selling
commissions, payable by the Registrant in connection with the sale of the shares
being registered. All of the amounts shown are estimates, except for the
registration fee and NASD filing fee.
Registration................................. $ 563.63
NASD filing.................................. $ 7,500
Blue Sky fees and expenses................... $ 5,000
Legal fees and expenses...................... $10,000
Accounting fees and expenses................. $20,000
Miscellaneous................................ $ 1,000
TOTAL........................................ $44,063.63
Item 15. Indemnification of Directors and Officers
The Restated Certificate of Incorporation of the Registrant, filed November
6, 1991 (the "Restated Certificate"), provides in relevant part at paragraph 7,
that
The directors of the corporation shall not be personally liable to the
corporation or its shareholders for damages for any breach of duty in such
capacity occurring after the adoption of the provisions authorized in this
certificate of incorporation, provided, however, that the provisions
contained herein shall not eliminate such directors' liability if a
judgment or other final adjudication adverse to the director establishes
that (i) the director's acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of the law; (ii) that the
director personally gained a financial profit or other advantage to which
the director was not legally entitled; or (iii) that the directors' acts
violated the provisions of Section 719 of the New York Business Corporation
Law.
Sections 721 through 726 of the Business Corporation Law of the State of
New York (the "BCL") provide the statutory basis for the indemnification by a
corporation of its officers and directors when such officers and directors have
acted in good faith, for a purpose reasonably believed to be in the best
interests of the corporation, and subject to specified limitations set forth in
the BCL.
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<PAGE>
The BCL was also amended in 1986 to allow corporations to provide for
indemnification of corporate directors and officers on a broader basis than had
previously been permissible. Pursuant to this statutory authority, and as
authorized by Article V of the Registrant's By-Laws, directors and officers of
the Registrant, and certain Registrant employees, have been availed of the
broadest scope of permissible indemnification coverage consistent with the BCL
changes.
Article V of the Registrant's By-Laws provide as follows:
5.1 Indemnification. The Corporation shall indemnify (a) any person
made or threatened to be made a party to any action or proceeding by reason
of the fact that he, his testator or intestate, is or was a director or
officer of the Corporation and (b) any director or officer of the
Corporation who served any other company in any capacity at the request of
the Corporation, in the manner and to the maximum extent permitted by the
Business Corporation Law of New York, as amended from time to time; and the
Corporation may, in the discretion of the Board of Directors, indemnify all
other corporate personnel to the extent permitted by laws.
5.2 Authorization. The provisions for indemnification set forth in
Section 5.1 hereof shall not be deemed to be exclusive. The Corporation is
hereby authorized to further indemnify its directors or officers in the
manner and to the extent set forth in (i) a resolution of the shareholders,
(ii) a resolution of the directors, or (iii) an agreement providing for
such indemnification, so long as such indemnification shall not be
expressly prohibited by the provisions of the Business Corporation Law of
New York.
Item 16. Exhibits and Financial Statements Schedules
(a) The following Exhibits are filed as part of this Registration
Statement:
Exhibit Number
- --------------
4.1(1) Specimen Common Stock Certificate
4.2(2) Form of Warrant
5.1 Opinion of Boylan, Brown, Code, Fowler, Vigdor & Wilson
23.1 Independent Auditors' Consent - Deloitte & Touche LLP
23.2 Consent of Boylan, Brown, Code, Fowler, Vigdor & Wilson is included in
its Opinion filed as Exhibit 5.1
24.1 Power of Attorney
(1) Previously filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-1, effective February 13, 1992 and incorporated
herein by reference.
(2) Previously filed as an Exhibit 4.5 to the Company's Form 8-K dated
and incorporated herein by reference.
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<PAGE>
The remaining schedules have been omitted, either because they are not
applicable to the Registrant or because the information required has been shown
in the Financial Statements or in the notes thereto without making such
statement unclear or confusing.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 14 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 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, unit 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 by the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Spatialight, Inc., a corporation organized and existing under the laws of the
State of New York 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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Novato, State of California, on the ____ day of
November, 1996.
SPATIALIGHT, INC.
By: /s/ William E. Hollis
-------------------------------------
William E. Hollis
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Dated
- --------- ----- -----
Chairman of the Board November __, 1996
- -------------------------
Lawrence J. Matteson
/s/ William E. Hollis President & CEO, Chief November __, 1996
- ------------------------- Financial Officer, Vice
William E. Hollis President and Treasurer,
Director
Director November __, 1996
- -------------------------
Edward J. Kelly
/s/ Thomas D. Stahl Director November __, 1996
- -------------------------
Thomas D. Stahl
/s/ Michael H. Burney Director November __, 1996
- -------------------------
Michael H. Burney
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November 26, 1996
Spatialight, Inc.
8-C Commercial Blvd.
Novato, CA 94949
RE: Spatialight, Inc. - Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Spatialight, Inc., a New York corporation
(hereinafter called the "Company"), in connection with its Registration
Statement on Form S-3, filed under the Securities Act of 1933, relating to the
proposed resale of up to 3,720,000 common shares of the Company, $.01 par value
("Common Shares") by certain Selling Shareholders.
In that connection, we have examined the Certificate of Incorporation of the
Company, as amended, the by-laws of the Company, as amended, the Registration
Statement, and such other documents and corporate records as we have deemed
necessary or appropriate for purposes of this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company has been duly organized and is a validly existing
corporation in good standing under the laws of the State of New York.
2. The Common Shares have been duly authorized and are validly issued,
fully paid and nonassessable.
<PAGE>
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
above-referenced Registration Statement and to the reference made to us under
the caption "Legal Matters" in the Prospectus forming a part of such
Registration Statement.
Very truly yours,
/s/ BOYLAN, BROWN, CODE,
FOWLER, VIGDOR & WILSON, LLP
Alan S. Lockwood
MSW/ls
[Letterhead of Deloitte & Touche LLP]
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Spatialight, Inc. on Form S-3 of our report dated February 29, 1996 (November
11, 1996 as to Notes 5 and 10) (which expresses an unqualified opinion and
includes an explanatory paqragraph relating to the Company's recurring operating
losses and the continuing decline in stockholders' equity which raise
substantial doubt about the Company's ability to continue as a going concern),
appearing in the Annual Report on Form 10-KSB/A of Spatialight, Inc. for the
year ended December 31, 1995 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Francisco, California
November 22, 1996
Included with Exhibit 5.1 herein.
