<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 2000.
REGISTRATION NO. 333-39008
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 6
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AVISTAR COMMUNICATIONS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3576 88-0383089
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
555 TWIN DOLPHIN DRIVE, SUITE 360
REDWOOD SHORES, CALIFORNIA 94065
(650) 610-2900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
GERALD J. BURNETT
AVISTAR COMMUNICATIONS CORPORATION
555 TWIN DOLPHIN DRIVE, SUITE 360
REDWOOD SHORES, CALIFORNIA 94065
(650) 610-2900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C>
THOMAS S. LOO, ESQ. DANIEL CLIVNER, ESQ.
R. RANDALL WANG, ESQ. SIMPSON THACHER & BARTLETT
BRYAN CAVE LLP 10 UNIVERSAL CITY PLAZA-SUITE 1850
120 BROADWAY, SUITE 300 UNIVERSAL CITY, CALIFORNIA 91608
SANTA MONICA, CALIFORNIA 90401-2305 (818) 755-7000
(310) 576-2100 (818) 755-7009 (FAX)
(310) 576-2200 (FAX)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
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, as amended, 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 of 1933, as amended, 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 Rule 462(c)
under the Securities Act of 1933, as amended, 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 Rule 462(d)
under the Securities Act of 1933, as amended, 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. [ ]
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This Amendment is being filed solely for the purpose of refiling Exhibits
10.8 and 10.8.1.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth the estimated expenses and costs (other than
underwriting discounts and commissions) expected to be incurred in connection
with the issuance and distribution of our common stock registered hereby.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 16,395
NASD filing fee............................................. $ 6,250
Blue Sky fees and expenses (including legal fees)........... 7,500
Nasdaq National Market application fee...................... 95,000
Printing and engraving expenses............................. 250,000
Registrar and transfer agent fees........................... 20,000
Other legal fees and expenses............................... 600,000
Accounting fees and expenses................................ 400,000
D & O Insurance(A).......................................... 0
Miscellaneous............................................... 4,855
----------
Total....................................................... $1,400,000
==========
</TABLE>
------------------
(A) The Company's D & O Insurance premium will be amortized to expense over the
policy period.
ITEM 14. 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 law;
- unlawful payments of dividends or unlawful stock repurchases or
redemptions; or
- any transaction from which the director 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
II-1
<PAGE> 4
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.
The Underwriting Agreement, the form of which is filed as Exhibit 1.1 to
this Registration Statement, will provide for indemnification for specified
matters by the underwriters of the Registrant, its directors, its officers who
sign the registration statement, and the Registrant's controlling persons for
certain liabilities, including liabilities arising under the Securities Act.
ITEM 15. SALES OF UNREGISTERED SECURITIES
The following information gives effect to the one-for-five revenue stock
split effected in July 2000.
In March 2000, registrant was incorporated in the State of Delaware as the
successor to Avistar Systems Corporation, a Nevada corporation ("Predecessor"),
which merged with and into registrant in a migratory merger. In connection with
this transaction, registrant issued an aggregate of 1,850,825 shares of common
stock and 17,067,369 shares of preferred stock to the former stockholders of
Predecessor. The issuance of these shares was exempt from registration pursuant
to Rule 145(a)(2) of the Securities Act of 1933, as amended.
During the past three years, Predecessor has issued unregistered securities
to a limited number of persons, as described below. None of these transactions
involved any underwriters or any public offerings and registrant believes that
each of these transactions was exempt from the registration requirements of the
Securities Act by virtue of Section 4(2) thereof, Regulation D promulgated
thereunder or Rule 701 pursuant to compensatory benefit plans and contracts
related to compensation as provided under Rule 701. The recipients of the shares
of Common Stock in these transactions represented their intention to acquire the
securities for investment only and not with a view to or for sale in connection
with any distribution thereof, and appropriate legends were affixed to the share
certificates and instruments issued in these transactions. All recipients had
adequate access to information about registrant through their relationship with
registrant.
On December 9, 1999, Predecessor issued 1,067,369 shares of its Series B
Preferred Stock to a limited number of accredited investors, including UBS
(USA), Inc., for an aggregate of $5,336,843.
On December 31, 1997, Avistar Systems, Limited Partnership, a Nevada
limited partnership ("ASLP"), entered into an acquisition agreement with
Predecessor to convey all of ASLP's assets, and transfer all of ASLP's
liabilities, to Predecessor. In exchange, Predecessor issued to ASLP 16,000,000
shares of series A convertible preferred stock and 2,171,400 shares of common
stock of Predecessor.
From December 31, 1997 to July 21, 2000, Registrant and Predecessor granted
stock options to purchase an aggregate of 3,116,750 shares of common stock at
exercise prices ranging from $0.0005 to $17.25 per share to employees,
consultants and affiliates, including the following executive officers and
directors: Mr. Campbell, Mr. Heimark, Mr. Hughes, Mr. Afridi, Mr. Arisco, Mr.
Barsotti, Ms. Calaby, Mr. Lauwers, Mr. Ludwig, Mr. Brody and Mr. Solo. During
that period, options to acquire 823,050 shares of common stock were exercised at
an exercise price of $0.25 per share by the following executive officers and
directors: Mr. Hughes, Mr. Afridi, Mr. Arisco, Mr. Barsotti, Ms. Calaby, Mr.
Lauwers and Mr. Ludwig.
II-2
<PAGE> 5
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The exhibits and financial statements schedules filed as part of this
registration statement are as follows:
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
<C> <S>
1.1oo Form of Underwriting Agreement
2.1**oo Acquisition Agreement by and among Avistar Systems
Corporation and Avistar Systems, Limited Partnership, dated
as of December 31, 1997
2.2oo Agreement and Plan of Merger between Avistar Corporation,
f/k/a Avistar Systems Corporation, a Delaware corporation,
and Avistar Systems Corporation, a Nevada corporation, dated
March 28, 2000
2.3oo Contribution Agreement between Avistar Systems Corporation,
Collaboration Properties, Inc. and the stockholders of
Collaboration Properties, Inc. dated March 31, 2000
2.4oo Contribution Agreement between Avistar Systems Corporation,
VCT, Inc. and the stockholders of VCT, Inc. dated March 31,
2000
3.1oo Second Amended and Restated Certificate of Incorporation
3.2oo Form of Restated Certificate of Incorporation upon offering
3.3oo Bylaws of Avistar Communications Corporation
4.1oo Specimen Certificate evidencing shares of Common Stock
5.1oo Form of Opinion of Bryan Cave LLP regarding legality of the
common stock
10.1oo Avistar Communications Corporation 1997 Stock Option Plan,
as amended
10.1.1oo Avistar Systems Corporation 1997 Stock Option Plan Stock
Option Agreement
10.2oo Avistar Communications Corporation 2000 Stock Option Plan
10.3oo Avistar Communications Corporation 2000 Director Option Plan
10.4oo Avistar Communications Corporation Director Option Agreement
10.5oo Avistar Communications Corporation Indemnification Agreement
10.6oo Master lease for the premises located at 555 Twin Dolphin
Drive, Suite 360, Redwood City, California, between Spieker
Properties, L.P. and Entex Information Services, Inc., dated
August 10, 1998
10.7oo Sublease by and between Entex Information Services, Inc. and
Avistar Systems Corporation, dated July 23, 1999
10.8+ Preferred Supplier Agreement dated June 24, 1997 by and
between Avistar and Tandberg, Inc., including modifications
Nos. 1, 2, 3 and 4
10.8.1+ Modification No. 5 to Preferred Supplier Agreement dated
June 24, 1997 by and between Avistar and Tandberg, Inc.
10.9oo Amended and Restated Secured Non-recourse Revolving
Promissory Note in the principal amount of $9,084,074 by and
between Avistar Systems Corporation and Collaborative
Holdings, dated November 18, 1999
10.10oo Accounts Receivable Financing Agreement between Silicon
Valley Bank and Avistar Systems Corporation dated May 26,
2000
10.11oo Secured Nonrecourse Revolving Promissory Note of
Collaboration Properties, Inc. in the principal amount of
$1,783,989.73 issued in favor of the Burnett Revocable Trust
dated April 30, 2000
10.12oo Secured Nonrecourse Revolving Promissory Note of
Collaboration Properties, Inc. in the principal amount of
$716,359.94 issued in favor of the Heinrichs Revocable Trust
dated April 30, 2000
10.13oo Secured Nonrecourse Revolving Promissory Note of
Collaboration Properties, Inc. in the principal amount of
$109,915.08 in favor of William L. Campbell dated April 30,
2000
10.14**oo Collaboration Properties, Inc. Series A Preferred Stock
Purchase Agreement dated December 9, 1999
10.15**oo Avistar Systems Corporation Series B Preferred Stock
Purchase Agreement, dated December 9, 1999
10.15.1oo Amendment No. 1 to the Series B Preferred Stock Purchase
Agreement
</TABLE>
II-3
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
<C> <S>
10.16oo Avistar Systems Corporation Registration and Information
Rights Agreement dated December 9, 1999
21.1oo Subsidiaries of the Company
23.1oo Consent of Bryan Cave LLP (included in Exhibit 5.1)
23.2oo Consent of Arthur Andersen LLP
24.1oo Power of Attorney
27.1oo Financial Data Schedule
</TABLE>
-------------------------
** The Registrant hereby agrees to furnish supplementally a copy of any omitted
schedules to the Commission upon request.
+ Portions of the exhibit have been omitted pursuant to a request for
confidential treatment and the omitted portions have been separately filed
with the Commission.
oo Previously filed.
(b) Financial Statement Schedules.
Schedule II -- Valuation and qualifying accounts. See page II-7.
All other Financial Statement Schedules have been omitted because of the
absence of conditions under which they would be required or because the required
information has been included in the financial statements.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes to provide to the
underwriters at the closing 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.
(b) 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 provisions of Item 14 of this registration
statement, 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 of 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.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance on Rule 430A and contained in
the 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
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, 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-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 6 to 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 14, 2000.
AVISTAR COMMUNICATIONS CORPORATION
By: /s/ R. STEPHEN HEINRICHS
------------------------------------
R. Stephen Heinrichs
Vice-Chairman of the Board and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 6 to Registration Statement has been signed by the following
persons in the capacities indicated on the date set forth opposite their names.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ GERALD J. BURNETT* Chairman of the Board and August 14, 2000
----------------------------------------------------- Chief Executive Officer
Gerald J. Burnett
/s/ R. STEPHEN HEINRICHS Vice-Chairman of the Board August 14, 2000
----------------------------------------------------- and Chief Financial Officer
R. Stephen Heinrichs (Principal Accounting Officer)
/s/ WILLIAM L. CAMPBELL* Director August 14, 2000
-----------------------------------------------------
William L. Campbell
/s/ WILLIAM R. BRODY* Director August 14, 2000
-----------------------------------------------------
William R. Brody
/s/ DAVID M. SOLO* Director August 14, 2000
-----------------------------------------------------
David M. Solo
*By /s/ R. STEPHEN HEINRICHS
------------------------------------------------
R. Stephen Heinrichs
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 8
AVISTAR COMMUNICATIONS CORPORATION AND SUBSIDIARIES
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS BALANCE AT
BEGINNING CHARGED TO END OF
DESCRIPTION OF PERIOD OPERATIONS WRITE-OFFS PERIOD
----------- ---------- ---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Allowance for Doubtful Accounts Period Ended:
December 31, 1997............................. $230 $17 $ -- $247
==== === ==== ====
December 31, 1998............................. $247 $25 $ -- $272
==== === ==== ====
December 31, 1999............................. $272 $-- $(32) $240
==== === ==== ====
</TABLE>
II-6
<PAGE> 9
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
<C> <S>
1.1oo Form of Underwriting Agreement
2.1**oo Acquisition Agreement by and among Avistar Systems
Corporation and Avistar Systems, Limited Partnership, dated
as of December 31, 1997
2.2oo Agreement and Plan of Merger between Avistar Corporation,
f/k/a Avistar Systems Corporation, a Delaware corporation,
and Avistar Systems Corporation, a Nevada corporation, dated
March 28, 2000
2.3oo Contribution Agreement between Avistar Systems Corporation
and the stockholders of Collaboration Properties, Inc. dated
March 31, 2000
2.4oo Contribution Agreement between Avistar Systems Corporation
and the stockholders of VCT, Inc. dated March 31, 2000
3.1oo Second Amended and Restated Certificate of Incorporation
3.2oo Form of Restated Certificate of Incorporation upon offering
3.3oo Bylaws of Avistar Communications Corporation
4.1oo Specimen Certificate evidencing shares of Common Stock
5.1oo Form of Opinion of Bryan Cave LLP regarding legality of the
common stock
10.1oo Avistar Communications Corporation 1997 Stock Option Plan,
as amended
10.1.1oo Avistar Systems Corporation 1997 Stock Option Plan Stock
Option Agreement
10.2oo Avistar Communications Corporation 2000 Stock Option Plan
10.3oo Avistar Communications Corporation 2000 Director Option Plan
10.4oo Avistar Communications Corporation Director Option Agreement
10.5oo Avistar Communications Corporation Indemnification Agreement
10.6oo Master lease for the premises located at 555 Twin Dolphin
Drive, Suite 360, Redwood City, California, between Spieker
Properties, L.P. and Entex Information Services, Inc., dated
August 10, 1998
10.7oo Sublease by and between Entex Information Services, Inc. and
Avistar Systems Corporation, dated July 23, 1999
10.8+ Preferred Supplier Agreement dated June 24, 1997 by and
between Avistar and Tandberg, Inc., including modifications
Nos. 1, 2, 3, and 4
10.8.1+ Modification No. 5 to Preferred Supplier Agreement dated
June 24, 1997 by and between Avistar and Tandberg, Inc.
10.9oo Amended and Restated Secured Non-recourse Revolving
Promissory Note in the principal amount of $9,084,074 by and
between Avistar Systems Corporation and Collaborative
Holdings, dated November 18, 1999
10.10oo Accounts Receivable Financing Agreement between Silicon
Valley Bank and Avistar Systems Corporation dated May 26,
2000
10.11oo Secured Nonrecourse Revolving Promissory Note of
Collaboration Properties, Inc. in the principal amount of
$1,783,989.73 issued in favor of the Burnett Revocable Trust
dated April 30, 2000
10.12oo Secured Nonrecourse Revolving Promissory Note of
Collaboration Properties, Inc. in the principal amount of
$716,359.94 issued in favor of the Heinrichs Revocable Trust
dated April 30, 2000
10.13oo Secured Nonrecourse Revolving Promissory Note of
Collaboration Properties, Inc. in the principal amount of
$109,915.08 in favor of William L. Campbell dated April 30,
2000
10.14**oo Collaboration Properties, Inc. Series A Preferred Stock
Purchase Agreement dated December 9, 1999
10.15**oo Avistar Systems Corporation Series B Preferred Stock
Purchase Agreement, dated December 9, 1999
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
<C> <S>
10.15.1oo Amendment No. 1 to the Series B Preferred Stock Purchase
Agreement
10.16oo Avistar Systems Corporation Registration and Information
Rights Agreement dated December 9, 1999
21.1oo Subsidiaries of the Company
23.1oo Consent of Bryan Cave LLP (included in Exhibit 5.1)
23.2oo Consent of Arthur Andersen LLP
24.1oo Power of Attorney
27.1oo Financial Data Schedule
</TABLE>
-------------------------
** The Registrant hereby agrees to furnish supplementally a copy of any omitted
schedules to the Commission upon request.
+ Portions of the exhibit have been omitted pursuant to a request for
confidential treatment and the omitted portions have been separately filed
with the Commission.
oo Previously filed.
