-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Wad5b/CI/LlS8duUebr8+YvA8uls6DE2io+ZbsWTPH88aem4htNN1ll3fG1bYlPH Dk/q8RT413+sgGzde9Kc6A== 0000950150-97-000821.txt : 19970521 0000950150-97-000821.hdr.sgml : 19970521 ACCESSION NUMBER: 0000950150-97-000821 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970520 EFFECTIVENESS DATE: 19970520 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SPATIALIZER AUDIO LABORATORIES INC CENTRAL INDEX KEY: 0000890821 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 954484725 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-27453 FILM NUMBER: 97611748 BUSINESS ADDRESS: STREET 1: 20700 VENTURA BOULEVARD SUITE 134 STREET 2: STE 1100 CITY: WOODLAND HILLS STATE: CA ZIP: 91364 BUSINESS PHONE: 3102682700 S-8 1 FORM S-8 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) Delaware 3698 95-4484725 - ------------------------ ----------------------------- ---------------- (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or Classification Code Number) Identification No.) organization)
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 2 CALCULATION OF REGISTRATION FEE
========================================================================================================== 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) ========================================================================================================== Common Stock, $.01 par value per share 992,500 $3.00 $1,500,000 $357.00 ==========================================================================================================
(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. 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 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 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. 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. 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.
Signature Title Date --------- ----- ---- /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
8 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.
Exhibit Number Description - -------------- ----------- 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
EX-5.1 2 OPINION OF BRAND FARRAR DZIUBLA FREILICH & KOLSTAD 1 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. 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 EX-23.1 3 CONSENT OF KPMG PEAT MARWICK LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----