<PAGE>
As filed with the Securities and Exchange Commission on July 14, 2000
Registration No. 333-34024
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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AMENDMENT NO. 3
To
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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TVIA, INC.
(Exact name of registrant as specified in its charter)
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<TABLE>
<C> <S> <C>
California 3674 94-3175152
(Primary Standard
(State or other jurisdiction Industrial (I.R.S. Employer
of incorporation or Classification Code Identification No.)
organization) Number)
</TABLE>
4001 Burton Drive
Santa Clara, CA 95054
(408) 982-8588
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Kenny Liu
Chief Executive Officer
Tvia, Inc.
4001 Burton Drive
Santa Clara, CA 95054
(408) 982-8588
(Name, address, including zip code, and telephone number, including area code,
of agent for service of process)
Copies to:
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<S> <C>
Gabriella A. Lombardi, Esq. Christopher L. Kaufman, Esq.
Jeffrey S. Harrell, Esq. Bryant B. Edwards, Esq.
P. Christine Lillquist, Esq. Stephen B. Richards, Esq.
Pillsbury Madison & Sutro LLP Latham & Watkins
2550 Hanover Street 135 Commonwealth Drive
Palo Alto, CA 94304 Menlo Park, CA 94025
</TABLE>
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 (the "Securities Act"), check the following box. [_]
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 numbers of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to 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 this Form is a post-effective amendment filed pursuant to 462(d) 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. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which 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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Explanatory Note
The purpose of this Amendment No. 3 to the Registration Statement is solely
to file certain exhibits to the Registrant Statement, as set for the below in
Item 16(a) of Part II
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses expected to be
incurred by the Registrant in connection with the sale and distribution of the
securities being registered hereby, other than underwriting discounts and
commissions. All amounts are estimated except the Securities and Exchange
Commission registration fee, the National Association of Securities Dealers,
Inc. filing fee and the Nasdaq National Market listing fee.
<TABLE>
<CAPTION>
Payable by
Registrant
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<S> <C>
SEC registration fee............................................. $ 13,600
National Association of Securities Dealers, Inc. filing fee...... 5,675
Nasdaq National Market listing fee............................... 95,000
Accounting fees and expenses..................................... 500,000
Legal fees and expenses.......................................... 500,000
Printing and engraving expenses.................................. 200,000
Blue Sky fees and expenses....................................... 7,500
Registrar and Transfer Agent fees................................ 10,000
Miscellaneous fees and expenses.................................. 28,225
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Total.......................................................... $1,360,000
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</TABLE>
Item 14. Indemnification of Directors and Officers
Our articles of incorporation limit the liability of directors to the
maximum extent permitted by California law. This limitation of liability is
subject to exceptions including intentional misconduct, obtaining an improper
personal benefit and abdication or reckless disregard of director duties. Our
articles of incorporation and bylaws provide that we may indemnify our
directors, officers, employees and other agents to the fullest extent
permitted by law. Our bylaws also permit us to secure insurance on behalf of
any officer, director, employee or other agent for any liability arising out
of his or her actions in such capacity, regardless of whether the bylaws would
permit indemnification. We have entered into agreements to indemnify our
directors and executive officers, in addition to indemnification provided for
in our bylaws. These agreements, among other things, provide for
indemnification of our directors and executive officers for certain expenses
(including attorney's fees), judgments, fines and settlement amounts incurred
by any such person in any action or proceeding, including any action by or in
the right of Tvia, arising out of such person's services as a director or
executive officer of Tvia, any of our subsidiaries or any other company or
enterprise to which the person provides services at the request of Tvia. We
believe that these provisions and agreements are necessary to attract and
retain qualified persons as directors and executive officers.
Item 15. Recent Sales of Unregistered Securities
Since March 28, 1997, we have issued and sold the following unregistered
securities:
1. Since March 28, 1997, we issued and sold 256,580 shares of Common
Stock to employees, directors and consultants at prices ranging from
$0.12 to $0.36 per share.
2. Since March 28, 1997 we issued options to purchase 5,105,566 shares of
our common stock to directors, employees and consultants pursuant to
the Registrant's 1999 Stock Incentive Plan.
3. From September 25, 1998, we sold 1,583,333 shares of Series G
preferred stock to six investors for an aggregate purchase price of
$4,250,000.
4. On March 22, 2000, we sold 1,204,956 shares of Series H preferred
stock to 28 investors for an aggregate purchase price of
$4,518,586.25.
II-1
<PAGE>
5. On March 29, 2000, we sold 496,667 shares of Series I preferred stock
to 21 investors for an aggregate purchase price of $3,735,000. The
number of shares sold includes 66,667 shares issued for the conversion
of $500,000 in debt.
6. From December 31, 1997 to January 31, 2000, we issued warrants to
purchase an aggregate of 141,667 shares of Series G preferred stock at
a purchase price of $3.00 per share and 146,667 shares of Series H
preferred stock at an exercise price of $3.75 per share.
The sales of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act, or Regulation D promulgated thereunder (with respect to items
3, 4, 5 and 6), or Rule 701 (with respect to items 1 and 2) promulgated under
Section 3(b) of the Securities Act, as transactions by an issuer not involving
a public offering or transactions pursuant to compensatory benefit plans and
contracts relating to compensation as provided under Rule 701. The recipients
of securities in each of these transactions represented their intention to
acquire the securities for investment only and not with view to or for sale in
connection with any distribution thereof and appropriate legends were affixed
to the share certificates and instruments issued in such transactions. All
recipients had adequate access, through their relationship with the
Registrant, to information about the Registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
See exhibits listed on the Exhibit Index following the signature page of
the Form S-1, which is incorporated herein by reference.
(b) Financial Statement Schedules
Schedules other than those referred to above have been omitted because
they are not applicable or not required or because the information is included
elsewhere in the Financial Statements or the notes thereto.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "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 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, as amended, 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 Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, as amended, 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.
(3) The Registrant will provide to the underwriters at the closing(s)
specified in the underwriting agreement certificates in such denominations
and registered in such names as required by the underwriters to permit
prompt delivery to each purchaser.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Santa
Clara, State of California, on the 14th day of July, 2000.
TVIA, INC.
/s/ Kenny Liu
By __________________________________
Kenny Liu
Chief Executive Officer and
Chairman
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the 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
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<C> <S> <C>
/s/ Kenny Liu Chief Executive Officer July 14, 2000
______________________________________ and Chairman of the
Kenny Liu Board (Principal
Executive Officer)
/s/ Michael Hoberg Vice President of July 14, 2000
______________________________________ Finance and Chief
Michael Hoberg Financial Officer
(Principal Financial
Officer and Accounting
Officer)
* Director July 14, 2000
______________________________________
R. David Dicioccio
Director July , 2000
______________________________________
Steven Cheng
* Director July 14, 2000
______________________________________
James Bunker
* Director July 14, 2000
______________________________________
M. K. Tsai
</TABLE>
/s/ Michael Hoberg
*By: ____________________________
Michael Hoberg
Attorney-in-fact
II-3
<PAGE>
EXHIBIT INDEX
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<CAPTION>
Exhibit
Number Description of Document
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<C> <S>
1.1 Form of Underwriting Agreement.
3.1** Amended and Restated Articles of Incorporation.
3.2** Amended and Restated Bylaws.
3.3 Amended and Restated Certificate of Incorporation, to be effective
upon consummation of this offering.
3.4 Amended and Restated Bylaws, to be effective upon consummation of
this offering.
4.1** Form of Common Stock certificate.
4.2** Form of Amended and Restated Registration Rights Agreement dated as
of April 3, 2000.
4.3** Warrant to Purchase Stock issued December 31, 1997 to C.Y. Lee.
4.4** Warrant to Purchase Stock issued April 30, 1999 to James Mah.
4.5** Warrant to Purchase Stock issued June 21, 1999 to Far East National
Bank.
4.6** Warrant to Purchase Stock issued July 8, 1999 to C.Y. Lee.
4.7** Warrant to Purchase Stock issued December 30, 1999 to Far East
National Bank.
4.8** Warrant to Purchase Stock issued January 25, 2000 to C.Y. Lee.
4.9** Warrant to Purchase Stock issued January 25, 2000 to James Mah.
5.1* Opinion of Pillsbury Madison & Sutro LLP.
10.1** Amended and Restated 1999 Stock Incentive Plan of Tvia, Inc.
10.2** 2000 Stock Incentive Plan of Tvia, Inc.
10.3 2000 Employee Stock Purchase Plan of Tvia, Inc.
10.4 Form of Directors and Officers' Indemnification Agreement.
10.5** TSMC Terms and Conditions dated November 15, 1999.
10.6** UMC Wafer Foundry Standard Terms and Conditions.
10.7**+ Caesar International, Inc. Quotation dated August 20, 1998.
10.8**+ Joint Development Agreement dated October 29, 1999 between IGS
Technologies, Inc. and Coreum Technology, Inc.
10.9** Form of Executive Severance Agreement.
10.10**+ Cross License Agreement dated March 21, 2000 between Innovative
Semiconductors, Inc. and IGS Technologies with Innovative
Semiconductors.
10.11**+ Audio Technology Licensing Agreement dated June 26, 1997 between T-
Squared Design, Inc. and InteGraphics Systems, Inc.
10.12**+ Technology License Agreement dated July 1, 1997 between Reality
Simulation Systems Acquisition Corporation and InteGraphics Systems,
Inc.
10.13** Multi-Tenant Single-Building Modified-Net Lease dated October 27,
1995 between Koll/Intereal Bay Area and Intergraphics System, Inc.
10.14** First Amendment to Lease Agreement dated January 15, 1999 between
Koll/Intereal Bay Area and IGS Technologies, Inc.
10.15** Second Amendment to Lease Agreement dated May 6, 1999 between
Koll/Intereal Bay Area and IGS Technologies, Inc.
21.1** Subsidiaries of the Registrant.
23.1** Consent of Arthur Andersen LLP, Independent Public Accountants.
23.3* Consent of Pillsbury Madison & Sutro LLP (contained in their opinion
filed as Exhibit 5.1).
24.1** Power of Attorney. Reference is made to Page II-4.
27.1** Financial Data Schedule.
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Confidential Treatment Requested.
