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Filed with the Securities and Exchange Commission on November 19, 1999
Registration No. 333-_______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SpatiaLight, Inc.
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(Exact name of registrant as specified in its charter)
New York 16-1363082
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
9 Commercial Boulevard, Suite 200
Novato, California 94949
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(Address of principal executive offices) (Zip code)
SPATIALIGHT, INC.
1999 STOCK OPTION PLAN AND
1993 NONSTATUTORY EMPLOYEE STOCK OPTION PLAN
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(Full title of the plan)
Michael H. Burney
Chief Executive Officer, Treasurer and Secretary
SpatiaLight, Inc.
9 Commercial Boulevard, Suite 200
Novato, California 94949
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Telephone number, including area code, of agent for service: (415) 883-1693.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price aggregate Amount of
be registered(1) registered(2) per share(3) offering price(3) registration fee
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
1999 Stock Option Plan
Common Stock, 25,000 $3.81 $ 95,250.00
Par Value $0.01 1,975,000 $2.61 $5,154,750.00
1993 Nonstatutory Employee Stock Option Plan
Common Stock, 990,000 $0.7146 $ 707,500.00
Par Value $0.01 10,000 $2.61 $ 26,100.00
TOTALS 3,000,000 $5,983,600.00 $1,663.44
</TABLE>
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(1) The securities to be registered include options to acquire Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under the 1999 Stock Option Plan and the 1993 Nonstatutory Employee
Stock Option Plan, the price is computed on the basis of the weighted
average exercise price. As to the remaining shares under the 1999 Stock
Option Plan and the 1993 Nonstatutory Employee Stock Option Plan, the price
is based upon the average of the high and low prices of the Common Stock on
November 18, 1999 as reported on the OTC Bulletin Board.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
SpatiaLight, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1998, as filed with the Securities and
Exchange Commission on March 31, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on February 5, 1992, and
effective on February 7, 1992, under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation provides that the directors shall not
be personally liable to the corporation or its shareholders for damages for any
breach of duty in such capacity, provided, however, that the directors'
liability is not eliminated if a judgment or other final adjudication adverse to
a 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
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York Business Corporation Law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
In addition, the Company's Certificate of Incorporation provides that
the Company is authorized to provide indemnification of agents (as defined under
New York law) for breach of duty to the Company and its shareholders through
bylaw provisions or through agreements with the agents, or through shareholder
resolutions, or otherwise, in excess of the indemnification otherwise permitted
by New York law, subject to the limits on such excess indemnification set forth
in New York law.
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers and may indemnify its other officers, employees
and other agents to the fullest extent permitted by the Business Corporation Law
of New York, as amended from time to time ("New York Law"). Such indemnification
is intended to provide the full flexibility available under New York Law and
may, under certain circumstances, include indemnification for negligence, gross
negligence and certain types of recklessness. Under New York Law and the
Company's Bylaws, the Company will be permitted to indemnify its directors,
executive officers, officers, employees and other agents, within the limits
established by law and public policy, pursuant to an express contract, bylaw
provision, shareholder vote or otherwise, any or all of which could provide
indemnification rights broader than those expressly available under New York
Law.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
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 prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
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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;
provided, however, that paragraphs (1)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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.
(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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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 the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities and Exchange 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.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Novato, State of California, on
November 12, 1999.
SPATIALIGHT, INC.
By: /s/ MICHAEL H. BURNEY
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Michael H. Burney
Chief Executive Officer,
Treasurer, Secretary and Director
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of SpatiaLight, Inc. whose signatures appear
below, hereby constitute and appoint Michael H. Burney and Fred R. Hammett, and
each of them, their true and lawful attorneys-in-fact and agents, with full
power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney-in-fact and agent, or their or his
substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ MICHAEL H. BURNEY Chief Executive Officer, Treasurer, November 12, 1999
- ------------------------- Secretary and Director
Michael H. Burney (Principal Executive, Financial and
Accounting Officer)
/s/ FRED R. HAMMETT President November 12, 1999
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Fred R. Hammett
/s/ STEVEN F. TRIPP
- ------------------------- Director November 10, 1999
Steven F. Tripp
/s/ LAWRENCE J. MATTESON
- ------------------------- Director November 9, 1999
Lawrence J. Matteson
/s/ ROBERT A. OLINS
- ------------------------- Director November 9, 1999
Robert A. Olins
</TABLE>
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on November 18, 1999.
4.2 Certificate of Amendment to the Restated Certificate of Incorporation of
the Company is incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission on November 18, 1999.
4.3 Certificate of Amendment of the Restated Certificate of Incorporation, as
amended, of the Company is incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on November 18, 1999.
4.4 Bylaws of the Company are incorporated by reference to an Exhibit to the
Company's Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on February 13, 1992, as amended.
5 Opinion of legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-327-3699 www.graycary.com
November 15, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for SpatiaLight, Inc., a New York corporation (the "Company"),
we are rendering this opinion in connection with the registration under the
Securities Act of 1933, as amended, of up to 3,000,000 shares of the Common
Stock, $0.01 par value, of the Company which may be issued pursuant to the 1999
Stock Option Plan and the 1993 Nonstatutory Employee Stock Option Plan
(collectively, the "Plans").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California and the federal law of the
United States. As to matters of New York law, we have based our opinion solely
upon our examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard, unofficial
compilations. We have not obtained opinions of counsel licensed to practice in
jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 3,000,000 shares of
Common Stock which may be issued under the Plans re duly authorized shares of
the Company's Common Stock, and, when issued against receipt of the
consideration therefor in accordance with the provisions of the Plans will be
validly issued, fully paid and nonassessable. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement referred to above and
the use of our name wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
INDEPENDENT ACCOUNTANTS CONSENT
We consent to the incorporation by reference in this Registration
Statement of Spatialight, Inc. on Form S-8 of our report dated March 24, 1999
(which expresses an unqualified opinion and includes an explanatory paragraph
relating to a going concern issue), appearing in the Annual Report on Form
10-KSB of Spatialight, Inc. for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
San Francisco, California
November 15, 1999
