<PAGE> 1
As filed with the Securities and Exchange Commission on May 7, 1997.
Registration No. ________
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
REGISTRATION STATEMENT ON FORM S-8
Under
THE SECURITIES ACT OF 1933
_____________________
SPATIALIZER AUDIO LABORATORIES, INC.
1996 INCENTIVE PLAN
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Delaware 3698 95-4484725
- ------------------------ ----------------------------- ----------------
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or Classification Code Number) Identification No.)
organization)
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20700 Ventura Boulevard, Suite 134
Woodland Hills, California 91364
(818) 227-3370
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Steven D. Gershick, Chief Executive Officer and President
Spatializer Audio Laboratories, Inc.
20700 Ventura Boulevard, Suite 134
Woodland Hills, California 91364
(818) 227-3370
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_____________________
Copies to:
Margaret G. Graf, Esq.
Brand Farrar Dziubla Freilich & Kolstad, LLP
515 South Flower Street, Suite 3500
Los Angeles, California 90071-2201
(213) 228-0288
Direct Dial: (213) 426-6260
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
==========================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum Amount of
of Securities to be Amount to be Offering Price Per Aggregate Offering Registration
Registered Registered(1) Share(2) Price(2) Fee(2)
==========================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share 992,500 $3.00 $1,500,000 $357.00
==========================================================================================================
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(1) An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of this Plan become operational.
(2) Pursuant to Rule 457(c), the fee is an estimate solely for the
purposes of computing the registration fee based on the average of the
high and low bid prices of the Common Stock on the Small Capital
Company listings of the National Association of Securities Dealers
Automated Quotation ("NASDAQ") system on May 1, 1997.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into
this registration statement:
(1) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996, filed with the Commission on March 31, 1997.
(2) The description of the Company's Common Stock
contained in the Company's above-referenced Registration Statement on Form 8-A
dated July 17, 1995 filed with the Commission pursuant to Section 12 of the
1934 Act, as amended by Amendment Number One thereto dated August 15, 1995.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 in each year during which the
offering made by this registration statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in
this registration statement or be a part hereof from and after the filing of
such Annual Report on Form 10-K.
Any statement contained in an Incorporated Documents shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
The securities to be offered are registered under Section
12(b) of the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law and the
Restated Certificate of Incorporation of the Company provide for
indemnification of directors and
<PAGE> 4
officers for expenses (including reasonable amounts paid in settlement)
incurred in defending actions brought against them. The Company's Restated
Certificate of Incorporation provides that directors and officers shall be
indemnified and held harmless by the Company to the fullest extent permitted by
the laws of Delaware as the same now or hereafter exist.
Section 102(b)(7) of the Delaware General Corporation Law and
the Company's Restated Certificate of Incorporation contains a provision that
eliminates, to the fullest extent permitted by Delaware law, the personal
liability of each director of the Company to the Company and its shareholders
for monetary damages for certain breaches of fiduciary duty. This provision
relieves the director of liability for monetary damages for breaches of the
duty of loyalty, actions or omissions not in good faith, knowing violation of
law or intentional misconduct, willful or negligent conduct in approving an
unlawful dividend, stock repurchase or redemption or obtaining improper
personal benefits and certain other transactions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
Item 9. Undertakings.
The 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 to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933 (the "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) That, for the purposes of determining any liability
under the Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 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.
(4) 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.
(5) Insofar as indemnification for liabilities arising
under the Act may be
<PAGE> 5
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 6 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, 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 Act and will be governed by the final
adjudication of such issue.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 Los Angeles, State of California on December
31, 1996.
SPATIALIZER AUDIO LABORATORIES, INC.
By: /s/ Steven D. Gershick
------------------------------
Name: Steven D. Gershick
Title: President and Chief Executive
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Spatializer
Audio Laboratories, Inc., hereby severally constitute Steven D. Gershick and
Wendy M. Guerrero, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
said Registration Statement, and generally to do all such things in our name
and on behalf in the capacities indicated below to enable Spatializer Audio
Laboratories, Inc. to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our
said attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen W. Desper Director, Chairman of the Board December 31, 1996
- ------------------------------
Stephen W. Desper
/s/ Steven D. Gershick Director, President and December 31, 1996
- ------------------------------ Chief Executive Officer
Steven D. Gershick
/s/ Wendy M. Guerrero Chief Financial Officer December 31, 1996
- ------------------------------ (through December 15, 1996)
Wendy M. Guerrero
/s/ Kathy Partch Acting Chief Financial Officer April 9, 1997
- ------------------------------
Kathy Partch
/s/ Carlo Civelli Director December 31, 1996
- ------------------------------
Carlo Civelli
/s/ David Foster Director December 31, 1996
- ------------------------------
David Foster
/s/ James D. Pace Director December 31, 1996
- ------------------------------
James D. Pace
/s/ Jerold H. Rubinstein Director December 31, 1996
- ------------------------------
Jerold H. Rubinstein
/s/ Gilbert N. Segel Director December 31, 1996
- ------------------------------
Gilbert N. Segel
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EXHIBIT INDEX
Exhibits marked with an asterisk (*) are incorporated by reference to documents
previously filed by the registrant with the Securities and Exchange Commission,
as indicated. All other documents listed are filed with this registration
statement.
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Exhibit Number Description
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<S> <C> <C>
4.1 * 1996 Incentive Plan (incorporated by reference to
the Company's Proxy Statement dated June 26, 1996
and previously filed with the Commission)
4.2 * Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1,
Registration No. 33-90532, effective August 21,
1995)
4.3 * Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1,
Registration No. 33-90532, effective August 21,
1995)
5.1 Opinion of Brand Farrar Dziubla Freilich & Kolstad,
LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Brand Farrar Dziubla Freilich & Kolstad,
LLP, set forth in the opinion filed as Exhibit 5.1
hereto
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EXHIBIT 5.1
May 5, 1997
Spatializer Audio Laboratories, Inc.
20700 Ventura Boulevard, Suite 134
Woodland Hills, California 91634
Re: Spatializer Audio Laboratories, Inc.
1996 Incentive Plan
992,500 Shares of Common Stock, $.01 Par Value
Ladies and Gentlemen:
We have acted as counsel for Spatializer Audio Laboratories, Inc. (the
"Company") in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement") for the registration under
the Securities Act of 1933, as amended, of 992,500 shares of the Company's
Common Stock, $.01 par value (the "Common Stock"), which may be issued pursuant
to the Company's 1996 Incentive Plan (the "Plan").
We have examined or considered:
1. A copy of the Certificate of Incorporation of the Company.
2. The Amended and Restated By-Laws of the Company.
3. Confirmation of the Secretary of the State of Delaware as to
the good standing of the Company in that state.
4. A Certificate of the Secretary of the Company relating to
resolutions duly adopted by the Board of Directors of the Company regarding the
Plan.
5. A Certificate of the Secretary of the Company relating to the
approval of the Plan by the stockholders of the Company.
6. A copy of the Plan.
<PAGE> 2
Spatializer Audio Laboratories, Inc.
May 5, 1997
Page 2
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) All legal and corporate proceedings necessary for the
authorization, issuance and delivery of the shares of Common Stock to
be sold by the Company have been duly taken, and the Common Stock,
upon issuance pursuant to the terms of the Plan, will be duly
authorized, legally and validly issued, fully paid and nonassessable.
We hereby consent to all references to our firm in the Registration
Statement and to the filing of this opinion by the Company as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Brand Farrar Dziubla Freilich
& Kolstad, LLP
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Spatializer Audio Laboratories, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Spatializer Audio Laboratories, Inc. and subsidiaries of our report
dated February 21, 1997, except for note 15 which is as of March 7, 1997,
relating to the consolidated balance sheets of Spatializer Audio Laboratories,
Inc. and subsidiaries as of December 31, 1996 and 1995, and the related
consolidated statements of operations, shareholders' equity, and cash flows for
the years ended December 31, 1996 and 1995, the four-month period ended
December 31, 1994, and the year ended August 31, 1994, which report appears in
the December 31, 1996 annual report on the Form 10-K of Spatializer Audio
Laboratories, Inc.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
April 24, 1997
