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As filed with the Securities and Exchange Commission on August 16, 2000
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVISTAR COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 88-0383089
(State of Incorporation) (I.R.S. Employer
Identification No.)
555 Twin Dolphin Drive, Suite 360
Redwood Shores, California 94065
(Address of Principal Executive Offices)
Avistar Communications Corporation
1997 Stock Option Plan, as amended
2000 Stock Option Plan
2000 Director Option Plan
2000 Employee Stock Purchase Plan
(Full Titles of Plans)
----------------------------------
Gerald J. Burnett
Chairman, President and Chief Executive Officer
Avistar Communications Corporation
555 Twin Dolphin Drive, Suite 360
Redwood Shores, California 94066
(Name and Address of Agent for Service)
(650) 610-2900
(Telephone Number, Including Area Code of Agent for Service)
Copies to:
R. Randall Wang Robert P. Latta
Bryan Cave LLP Wilson Sonsini Goodrich & Rosati
One Metropolitan Square Professional Corporation
211 North Broadway, Suite 3600 650 Page Mill Road
St. Louis, Missouri 63102-2750 Palo Alto, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Amount Proposed
to be Maximum Proposed Maximum Amount of
Title of Securities Registered Offering Price Aggregate Registration
to be Registered (5) Per Share (4) Offering Price Fee
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1997 Stock Option Plan,
Common Stock, $.001 par value (3) 2,190,050 $15,111,000(1) $3,989
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2000 Stock Option Plan,
Common Stock, $.001 par value (3) 5,400,000 $81,000,000(2) $21,384
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2000 Director Option Plan,
Common Stock, $.001 par value (3) 114,000 $1,710,000(2) $452
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2000 Employee Stock Purchase
Plan, Common Stock, $.001 par 3,300,000 $49,500,000(2) $13,068
value (3)
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Aggregate Registration Fee $38,893
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(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended. The proposed maximum offering price per share represents the
weighted average exercise price of $6.90 per share of currently
outstanding options totaling 2,190,050 under the 1997 Stock Option Plan,
as amended.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the proposed maximum
offering price per share of $15.00 per share set forth in the Form S-1
(Registration No. 333-39008), as amended.
(3) This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to antidilution provisions. Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 1997 Stock Plan
(as amended), 2000 Stock Option Plan, 2000 Director Option Plan and 2000
Employee Stock Purchase Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction affected without
the receipt of consideration that increases the number of the
Registrant's outstanding shares of Common Stock.
(4) Omitted pursuant to Rule 457(o) under the Securities Act of 1933.
(5) The amount registered gives effect to the Registrant's 1-for-5 reverse
stock split effected July 21, 2000 and includes shares of the
Registrant's 2000 Stock Option Plan, 2000 Director Option Plan and 2000
Employee Stock Purchase Plan to be authorized pursuant to automatic
increase or "Evergreen" provisions contained therein during the next
two years.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to the following shares of
Common Stock, par value $.001, of Avistar Communications Corporation (the
"Registrant" or "Company"):
(a) 2,190,050 shares of Common Stock being registered for use
under the Registrant's 1997 Stock Option Plan, as amended (the "1997 Plan");
(b) 5,400,000 shares of Common Stock being registered for use
under the Registrant's 2000 Stock Option Plan (the "2000 Plan");
(c) 114,000 shares of Common Stock being registered for use under
the Registrant's 2000 Director Option Plan (the "Director Plan"); and
(d) 3,300,000 shares of Common Stock being registered for use
under the Registrant's 2000 Employee Stock Purchase Plan (the "Purchase Plan").
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Company
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Securities Act"), are incorporated by reference herein
and shall be deemed to be a part hereof:
(a) Registrant Statement on Form S-1, as amended (Registration
No. 333-39008), which contains audited combined financial statements for the
year ended December 31, 1999 and unaudited consolidated financial statements for
six months ended June 30, 2000.
(b) The description of the Registrant's common stock, which is
contained in the Registration Statement on Form 8-A (No. 000-31121), dated and
filed on July 24, 2000, as amended by Form 8-A/A dated and filed on August 11,
2000.
All other documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered
hereunder 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 collectively as the "Incorporated Documents").
Any statement contained in an Incorporated Document 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.
Not applicable.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
An investment company affiliated with Wilson Sonsini Goodrich &
Rosati, counsel to the Registrant, beneficially owns 11,000 shares of the
Registrant's capital stock and a partner of Wilson Sonsini Goodrich & Rosati,
beneficially owns 3,000 shares of the Registrant's capital stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's certificate of incorporation limits the
liability of the Registrant's directors to the maximum extent permitted by
Delaware law. Delaware law provides that the directors of a corporation will not
be personally liable to the corporation and its stockholders for monetary
damages for breach of the fiduciary duties as directors, except liability for
any of the following:
- any breach of their duty of loyalty to the corporation or its
stockholders;
- acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of the law;
- unlawful payments of dividends or unlawful stock repurchases
or redemptions; or
- any transaction from which they derived an improper personal
benefit.
This limitation of liability does not apply to liabilities
arising under the federal securities laws and does not affect the availability
of equitable remedies such as injunctive relief or rescission.
The Registrant's certificate of incorporation provides that it
may indemnify any of its directors, officers or employees to the fullest extent
permitted by law. The Registrant's bylaws provide that it will indemnify its
directors and officers, and that it may indemnify its employees and other
agents, to the fullest extent permitted by law. The bylaws also permit the
Registrant 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.
The Registrant has entered into agreements to indemnify its
directors and executive officers, in addition to indemnification provided for in
its bylaws. These agreements, among other things, provide for indemnification of
the Registrant's directors and executive officers for expenses, judgments,
fines, and settlement amounts incurred by any such person in any action or
proceedings arising out of such person's services as a director or executive
officer or at the Registrant's request. The Registrant also maintain directors'
and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT NUMBER DOCUMENTS
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3.1 Second Amended and Restated Certificate of Incorporation
(incorporated by reference to the Exhibit No. 3.1 filed with
Avistar Communications Corporation's Registration Statement
on Form S-1, as amended (Registration No. 333-39008))
3.2 Form of Restated Certificate of Incorporation upon offering
(incorporated by reference to the Exhibit No. 3.2 filed with
Avistar Communications Corporation's Registration Statement
on Form S-1, as amended (Registration No. 333-39008))
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3.3 Bylaws of Avistar Communications Corporation (incorporated by
reference to the Exhibit No. 3.3 filed with Avistar
Communications Corporation's Registration Statement on Form
S-1, as amended (Registration No. 333-39008))
4.1 Avistar Communications Corporation 1997 Stock Option Plan (as
amended) and form of agreement thereunder (incorporated by
reference to the Exhibit No. 10.1 filed with Avistar
Communications Corporation's Registration Statement on Form
S-1, as amended (Registration No. 333-39008))
4.2 Avistar Communications Corporation 2000 Stock Option Plan (as
amended) and form of agreement thereunder (incorporated by
reference to the Exhibit No. 10.2 filed with Avistar
Communications Corporation's Registration Statement on Form
S-1, as amended (Registration No. 333-39008))
4.3 Avistar Communications Corporation 2000 Employee Stock
Purchase Plan and form of agreement thereunder
4.4 Avistar Communications Corporation 2000 Director Option Plan
and form of agreement thereunder (incorporated by reference
to the Exhibit No. 10.3 filed with Avistar Communications
Corporation's Registration Statement on Form S-1, as amended
(Registration No. 333-39008))
5.1 Opinion of Wilson Sonsini Goodrich & Rosati as to legality of
securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wilson Sonsini Goodrich & Rosati (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature pages of this
Registration Statement)
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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;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this
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; and
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(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement:
provided however, that paragraphs (a)(l)(i) and (a)(l)(ii) of this section do
not apply if this registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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) 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, as amended,
the Registrant certifies that it has reasonable grounds to believe it meets all
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 Redwood Shores, State of California, on August 16,
2000.
AVISTAR COMMUNICATIONS CORPORATION
By: /s/ GERALD J. BURNETT
------------------------------------
Gerald J. Burnett
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints R. Stephen Heinrichs and Michael
G. Barsotti and any of them (with full power to each of them to act alone), as
his or her 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 to this Registration
Statement (including post-effective amendments), and any and all registration
statements filed pursuant to Rule 462 under the Securities Act of 1933, as
amended, in connection with or related to the offering contemplated by this
Registration Statement and its amendments, if any, and any other documents and
instruments incidental thereto, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission (or any other government or regulatory authority), granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and to perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date set forth opposite their names.
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Signature Title Date
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/s/ GERALD J. BURNETT Chairman of the Board and August 16, 2000
------------------------------------- Chief Executive Officer
Gerald J. Burnett
/s/ R. STEPHEN HEINRICHS Vice Chairman of the Board August 16, 2000
------------------------------------- and Chief Financial Officer
R. Stephen Heinrichs (Principal Accounting Officer
/s/ WILLIAM L. CAMPBELL Director August 16, 2000
-------------------------------------
William L. Campbell
* Director August 16, 2000
-------------------------------------
William R. Brody
* Director August 16, 2000
-------------------------------------
David M. Solo
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* Signature not obtained at time of filing.
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Exhibit Index
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EXHIBIT NUMBER DOCUMENTS
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3.1 Second Amended and Restated Certificate of Incorporation
(incorporated by reference to the Exhibit No. 3.1 filed with
Avistar Communications Corporation's Registration Statement
on Form S-1, as amended (Registration No. 333-39008))
3.2 Form of Restated Certificate of Incorporation upon offering
(incorporated by reference to the Exhibit No. 3.2 filed with
Avistar Communications Corporation's Registration Statement
on Form S-1, as amended (Registration No. 333-39008))
3.3 Bylaws of Avistar Communications Corporation (incorporated by
reference to the Exhibit No. 3.4 filed with Avistar
Communications Corporation's Registration Statement on Form
S-1, as amended (Registration No. 333-39008))
4.1 Avistar Communications Corporation 1997 Stock Option Plan (as
amended) and form of agreement thereunder (incorporated by
reference to the Exhibit No. 10.1 filed with Avistar
Communications Corporation's Registration Statement on Form
S-1, as amended (Registration No. 333-39008))
4.2 Avistar Communications Corporation 2000 Stock Option Plan (as
amended) and form of agreement thereunder (incorporated by
reference to the Exhibit No. 10.2 filed with Avistar
Communications Corporation's Registration Statement on Form
S-1, as amended (Registration No. 333-39008))
4.3 Avistar Communications Corporation 2000 Employee Stock
Purchase Plan and form of agreement thereunder
4.4 Avistar Communications Corporation 2000 Director Option Plan
and form of agreement thereunder (incorporated by reference
to the Exhibit No. 10.3 filed with Avistar Communications
Corporation's Registration Statement on Form S-1, as amended
(Registration No. 333-39008))
5.1 Opinion of Wilson Sonsini Goodrich & Rosati as to legality of
securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Wilson Sonsini Goodrich & Rosati (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature pages of this
Registration Statement)
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