The 1,729,500 shares offered by this prospectus consist of shares
issuable to institutional and individual accredited investors in connection with
warrants granted in privately placed equity financings. The warrants, which were
issued to investors between June 19, 1997 and November 15, 1999, have exercise
prices ranging from $0.50 to $2.8125 per share, an average exercise price of
$1.455, and an aggregate exercise price of $2,516,345.
If the warrants are exercised, we will receive proceeds in the form of
the exercise price. We expect to use such proceeds, if any, for working capital.
12
PLAN OF DISTRIBUTION
The warrants being registered hereunder have already been issued.
13
The effectiveness of the registration statement of which this prospectus
is a part addresses only federal securities law obligations. We have not
qualified the issuance or sale of the shares in any state. As a result of
Section 18(b)(4) of the Securities Act, state law will not prohibit, limit, or
impose conditions on the offer or sale of these shares if the selling
stockholder is not an underwriter. Stockholders selling their shares and any
broker-dealers or agents that participate with such stockholders in sales of the
shares may be deemed to be "underwriters" within the meaning of the Securities
Act. Commissions received by broker-dealers or agents and any profit on the
resale of shares purchased by them may be deemed to be underwriting commissions
or discounts under the Securities Act. In order to assure compliance with
applicable state securities laws and notice requirements selling stockholders
will be required to coordinate with Spatialight.
14
LEGAL MATTERS
The legality of the shares offered by this prospectus is being passed
upon by Gray Cary Ware & Freidenrich LLP, Sacramento, California.
15
WHERE TO FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. These reports, proxy statements and other
information filed with the SEC may be inspected and copied at the SEC Public
Reference Room, 450 Fifth Street, N.W., Washington, D.C. 20549.
You may obtain information about the operation of the SEC Public
Reference Room by calling 1-800-SEC-0330. You can also inspect this material
free of charge at a Web site maintained by the SEC at http://www.sec.gov.
Finally, you can also inspect reports and other information concerning
Spatialight at the offices of the National Association of Securities Dealers,
Inc., Market Listing Section, 1735 K Street, N.W., Washington, D.C. 20006.
Spatialight common stock is not traded on a national securities exchange or The
Nasdaq Stock Market but are listed on the over-the-counter bulletin board under
the symbol "HDTV." Spatialight's Internet web site is located at
http://www.spatialight.com.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" information that we
file with them which means that we can disclose important information to you by
referring you to these documents. The information incorporated by reference is
an important part of this prospectus and information we later file with the SEC
will automatically update and supersede this information. The following
documents filed by us with the SEC (File No. 000-19828) are incorporated in this
prospectus by reference:
- Annual Report on Form 10-KSB for the year ended December 31,
1998, filed on March 31, 1999;
- Quarterly Report on Form 10-QSB for the quarter ended March
31, 1999, filed on May 17, 1999;
- Current Report on Form 8-K, filed on May 21, 1999;
- Current Report on Form 8-K, filed on June 14, 1999;
- Quarterly Report on Form 10-QSB for the quarter ended June 30,
1999, filed on August 16, 1999;
- Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1999, filed on November 12, 1999;
- The description of Spatialight's Common Stock contained in
Spatialight's 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 report filed for the purpose of updating that
description.
We also incorporate by reference all documents and reports filed by us
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this
16
prospectus. We will provide free of charge to each person, including any
beneficial owner, to whom this prospectus is delivered, upon written or oral
request, a copy of any or all of the documents incorporated by reference in this
prospectus. Please direct such requests to Investor Relations, Spatialight,
Inc., 9 Commercial Boulevard, Suite 200, Novato, California 94949. Our telephone
number is (415) 883-1693.
17
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS
PROSPECTUS. THE INFORMATION IN THIS PROSPECTUS IS CORRECT AS OF THE DATE OF
THIS PROSPECTUS. DELIVERY OF THIS PROSPECTUS AFTER THE DATE
INDICATED BELOW DOES NOT MEAN THAT THE INFORMATION IS STILL CORRECT.
SPATIALIGHT, INC.
COMMON STOCK
1,729,500 SHARES SUBJECT TO WARRANTS
PROSPECTUS
_______________, 1999
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses in connection
with the sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration fee.
To be Paid
By The
Registrant
----------
SEC Registration Fee ................................................................................... $ 1,292,36
Accounting fees and expenses ........................................................................... $ 7,000
Legal fees and expenses ................................................................................ $ 11,000
Miscellaneous expenses ................................................................................. $ 2,000
----------
Total.......................................................................................... $21,292.36
==========
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 New York Business Corporations Law (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.
II-1
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. 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.
See also the undertakings set out in response to Item 17 herein.
II-2
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement
unless otherwise indicated:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
3.1 Amended and Restated Certificate of Incorporation (1)
3.2 Bylaws (2)
5.1 Opinion of Gray Cary Ware & Freidenrich LLP
10.1 1991 Employee Stock Option Plan and Form of Stock Option Agreement thereunder (3)
10.2 1993 Nonstatutory Employee Stock Option Plan and Form of Stock Option Agreement thereunder (4)
10.3 1993 Nonstatutory Directors Stock Option Plan (5)
10.4 1999 Stock Option Plan (6)
10.5 Form of Convertible Secured Loan Agreement, dated as of November 1998, between Spatialight
and the eighteen lenders listed on Exhibit A to such form (7)
10.6 Form of Security Agreement, dated as of November 1998, between Spatialight and the eighteen
lenders listed on Exhibit A to such form (8)
10.7 Form of Intercreditor Agreement, dated as of November 1998, among Spatialight, Argyle Capital
Management Corporation, Jerry Whitlock, Mansour Rasnavad, Network Finance Incorporated, Farhad Azima
and the eighteen lenders listed on Exhibit A to such form (9)
10.8 Form of Registration Rights Agreement, dated as of November 1998, between Spatialight and
the eighteen lenders listed on Exhibit A to such form (10)
10.14 Standard Office Lease, dated February 22, 1999, between Dennis A. and Susan Johann Gilardi
and SpatiaLight, Inc. (11)
23.1 Consent of Deloitte & Touche LLP, independent auditors
23.2 Consent of Gray Cary Ware & Freidenrich LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included in the Signature Page contained in Part II of the Registration
Statement)
27 Financial Data Schedule
(1) Incorporated by reference to Exhibit 3.1 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(2) Incorporated by reference to Exhibit 4.2 of the Registrant's
Registration Statement on Form S-1, as amended filed on February 13,
1992.
II-3
(3) Incorporated by reference to Exhibit 10.1 of the Registrant's
Registration Statement on Form S-1 filed on February 13, 1992.
(4) Incorporated by reference to Exhibit 10.23 of the Registrant's annual
report on Form 10-KSB for the year ended December 31, 1993.
(5) Incorporated by reference to Exhibit 10.24 of the Registrant's annual
report on Form 10-KSB for the year ended December 31, 1993.
(6) Incorporated by reference to Exhibit 10.4 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(7) Incorporated by reference to Exhibit 10.5 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(8) Incorporated by reference to Exhibit 10.6 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(9) Incorporated by reference to Exhibit 10.7 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(10) Incorporated by reference to Exhibit 10.8 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(11) Incorporated by reference to Exhibit 10.22 of the Registrant's Report
on Form 10-QSB filed on May 17, 1999.
ITEM 17. UNDERTAKINGS.
A. 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 of 1933 (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.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
II-4
(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 (a)(1)(i) and
(a)(1)(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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or 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.
C. The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are
not set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
D. 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.
II-5
E. The undersigned Registrant hereby undertakes that:
(1) For the purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
the registration statement as of the time it was declared
effective.
(2) For the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus 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.
II-6
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-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 November 18, 1999.
SPATIALIGHT, INC.
By: /s/ MICHAEL H. BURNEY
------------------------------------
Michael H. Burney
Chief Executive Officer,
Treasurer and Director
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael H. Burney and Fred R. Hammett and
each of them, as his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form
S-3, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorney-in-facts and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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 DATE
--------- ----- ----
/s/ Michael H. Burney Chief Executive Officer, Treasurer and November 18, 1999
--------------------------------------- Director (Principal Executive,
Michael H. Burney Financial and Accounting Officer)
/s/ Fred R. Hammett President November 18, 1999
---------------------------------------
Fred R. Hammett
/s/ Robert A. Olins Director November 18, 1999
---------------------------------------
Robert A. Olins
/s/ Lawrence J. Matteson Director November 18, 1999
---------------------------------------
Lawrence J. Matteson
/s/ Steven F. Tripp Director November 18, 1999
---------------------------------------
Steven F. Tripp
II-7
The following exhibits are filed with this Registration Statement
unless otherwise indicated:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
3.1 Amended and Restated Certificate of Incorporation (1)
3.2 Bylaws (2)
5.1 Opinion of Gray Cary Ware & Freidenrich LLP
10.1 1991 Employee Stock Option Plan and Form of Stock Option Agreement thereunder (3)
10.2 1993 Nonstatutory Employee Stock Option Plan and Form of Stock Option Agreement thereunder (4)
10.3 1993 Nonstatutory Directors Stock Option Plan (5)
10.4 1999 Stock Option Plan (6)
10.5 Form of Convertible Secured Loan Agreement, dated as of November 1998, between Spatialight and the
eighteen lenders listed on Exhibit A to such form (7)
10.6 Form of Security Agreement, dated as of November 1998, between Spatialight and the eighteen lenders
listed on Exhibit A to such form (8)
10.7 Form of Intercreditor Agreement, dated as of November 1998, among Spatialight, Argyle Capital Management
Corporation, Jerry Whitlock, Mansour Rasnavad, Network Finance Incorporated, Farhad Azima and the eighteen
lenders listed on Exhibit A to such form (9)
10.8 Form of Registration Rights Agreement, dated as of November 1998, between Spatialight and the eighteen
lenders listed on Exhibit A to such form (10)
10.14 Standard Office Lease, dated February 22, 1999, between Dennis A. and Susan Johann Gilardi and
SpatiaLight, Inc. (11)
23.1 Consent of Deloitte & Touche LLP, independent auditors
23.2 Consent of Gray Cary Ware & Freidenrich LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included in the Signature Page contained in Part II of the
Registration Statement)
27 Financial Data Schedule
(1) Incorporated by reference to Exhibit 3.1 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(2) Incorporated by reference to Exhibit 4.2 of the Registrant's
Registration Statement on Form S-1, as amended filed on February 13,
1992.
(3) Incorporated by reference to Exhibit 10.1 of the Registrant's
Registration Statement on Form S-1 filed on February 13, 1992.
(4) Incorporated by reference to Exhibit 10.23 of the Registrant's annual
report on Form 10-KSB for the year ended December 31, 1993.
(5) Incorporated by reference to Exhibit 10.24 of the Registrant's annual
report on Form 10-KSB for the year ended December 31, 1993.
(6) Incorporated by reference to Exhibit 10.4 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(7) Incorporated by reference to Exhibit 10.5 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(8) Incorporated by reference to Exhibit 10.6 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(9) Incorporated by reference to Exhibit 10.7 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(10) Incorporated by reference to Exhibit 10.8 of the Registrant's
Registration Statement on Form S-3, registering 814,015 shares of
Common Stock filed on November 18, 1999.
(11) Incorporated by reference to Exhibit 10.22 of the Registrant's Report
on Form 10-QSB filed on May 17, 1999.
As legal counsel for Spatialight, Inc., a New York corporation (the "Company"),
we are rendering this opinion in connection with the preparation and filing of a
registration statement on Form S-3 (the "Registration Statement") relating to
the registration under the Securities Act of 1933, as amended, of 1,729,500
shares of Common Stock (the "Shares") issuable upon exercise of warrants issued
by the Company between June 19, 1997 and November 15, 1999.
We have examined such instruments, documents and records as we deemed relevant
and necessary for the basis of our opinion herein after 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.
Based on such examination, we are of the opinion that the 1,729,500 Shares
issuable upon exercise of the warrants, when issued in accordance with the terms
of the warrants, will be, duly authorized, 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.
This opinion is to be used only in connection with the issuance of the Shares
while the Registration Statement is in effect.
Respectfully submitted,
/s/ GRAY CARY WARE & FREIDENRICH LLP
GRAY CARY WARE & FREIDENRICH 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 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.
Next Section
Previous Section