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January 12, 2001
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TVIA, INC.
(Exact name of registrant as specified in its charter)
<S> <C> <C>
Delaware 77-0549628
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4001 Burton Drive
Santa Clara, CA 95054
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(Address of principal (Zip Code)
executive offices)
Amended and Restated Tvia, Inc. 2000 Stock Incentive Plan
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Full title of the plan
KENNY LIU Copy to:
Chief Executive Officer
Tvia, Inc. GABRIELLA A. LOMBARDI, ESQ.
4001 Burton Drive Pillsbury Winthrop LLP
Santa Clara, CA 95054 2550 Hanover Street
(408) 982-8588 Palo Alto, CA 94304
(650) 233-4500
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(Name, address and telephone
number of agent for service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C> <C>
Proposed Proposed Amount of
Title of Securities Amount To Maximum Offering Maximum Aggregate Registration
To Be Registered(1) Be Registered Price Per Share(2) Offering Price Fee
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Common Stock, par value $0.001 per share: To
be issued under Tvia, Inc. Amended and
Restated 2000 Stock Incentive Plan 2,579,876 $3.0625 $7,900,870 $1,976
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(1) The securities to be registered include options and rights to acquire
Common Stock.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act") solely for the purposes of calculating the
registration fee. The price of the shares is based upon the average of the
high and low prices of the Common Stock on January 10, 2001, as reported on
the Nasdaq Stock Market.
---------------------------
The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933.
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PART I
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 (the "Securities Act") and the Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
(a) Registrant's prospectus dated August 8, 2000 and filed on August 9, 2000
pursuant to Rule 424(b) of the Securities Act and which contains audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed.
(b) Registrant's Quarterly Reports on Form 10-Q (File No. 0-30539) for the
quarters ended June 30 and September 30, 2000.
(c) The description of Registrant's Common Stock contained in Registrant's
registration statement on Form 8-A, filed May 1, 2000, as amended August 7,
2000.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock offered hereby has been
passed upon for the Registrant by Pillsbury Winthrop LLP, Palo Alto, California.
As of the date of this Registration Statement, an entity in which attorneys and
former attorneys of Pillsbury Winthrop LLP are members and certain attorneys of
Pillsbury Winthrop LLP beneficially own an aggregate of 39,000 shares of the
Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). Article VIII, Section B of the
Registrant's Amended and Restated Certificate of Incorporation (Exhibit 3.3 to
the Form S-1 Registration Statement) and Article 5, Section 5.1 of the
Registrant's Amended and Restated Bylaws (Exhibit 3.4 to the Form S-1
Registration Statement) provide for indemnification of the Registrant's
directors, officers, employees and other agents to the extent and under the
circumstances permitted
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by the Delaware General Corporation Law. The Registrant has also entered into
agreements with our directors and officers that will require the Registrant,
among other things, to indemnify them against certain liabilities that may arise
by reason of their status or services as directors or officers to the fullest
extent not prohibited by law (Exhibit 10.4 to the Form S-1 Registration
Statement).
The Underwriting Agreement (Exhibit 1.1 to the Form S-1 Registration
Statement) provides for indemnification by the Underwriters of the Registrant,
its directors and officers, and by the Registrant of the Underwriters, for
certain liabilities, including liabilities arising under the Act, and afford
certain rights of contribution with respect thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits, which list of exhibits is incorporated herein by
reference.
ITEM 9. 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;
(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;
(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 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, 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 of 1933, 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.
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(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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.
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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 Santa Clara, State of California, on the 12th day of
January, 2001.
TVIA, INC.
By /S/ KENNY LIU
--------------------------------------------
Kenny Liu
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenny Liu and Michael Hoberg, and each of
them, his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments, to this Registration
Statement, and to file the same, with 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,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each of said attorneys-in-fact and agents, 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 below by the following persons in the
capacities and on the dates indicated.
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NAME TITLE DATE
<S> <C> <C>
/S/ KENNY LIU Chief Executive Officer (Principal January 12, 2001
------------------------------------------- Executive Officer)
Kenny Liu
/S/ MICHAEL HOBERG Vice President of Finance and Chief January 12, 2001
------------------------------------------- Financial Officer (Principal
ichael Hoberg Financial and Accounting Officer)
/S/ R. DAVID DICIOCCIO Director January 12, 2001
-------------------------------------------
R. David Dicioccio
/S/ STEVEN CHENG Director January 12, 2001
-------------------------------------------
Steven Cheng
Director
-------------------------------------------
James Bunker
/S/ M. K. TSAI
------------------------------------------- Director January 12, 2001
M. K. Tsai
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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5.1 Opinion of Pillsbury Winthrop LLP
23.1 Consent of Independent Public Accountants
23.2 Consent of Pillsbury Winthrop LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (see page 5)
99.1* Amended and Restated Tvia, Inc. 2000 Stock Incentive Plan
* Incorporated by reference to Exhibit 10.2 to Amendment No. 5 of the
Registrant's Registration Statement on Form S-1 (File No. 333-34024) filed on
July 20, 2000.
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