<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1998
REGISTRATION NO. 333-60577
- -------------------------------------------------------------------------------
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
VISIO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WASHINGTON 91-1448389
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
520 PIKE STREET, SUITE 1800
SEATTLE, WASHINGTON 98101-4001
(206) 521-4500
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JEREMY A. JAECH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VISIO CORPORATION
520 PIKE STREET, SUITE 1800
SEATTLE, WASHINGTON 98101-4001
(206) 521-4500
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
Copies to:
SCOTT L. GELBAND
PERKINS COIE LLP
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
(206) 583-8888
----------------
Approximate date of commencement of proposed sale to the public:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
----------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
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, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
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 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, 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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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TTTLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value
per share................. 444,628 shares $38.225(1) $16,995,906(1) $5,014(2)
Common Stock, $.01 par value
per share................. 6,849 shares $28.50(3) $195,197(3) $100
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the high and low sales prices of the
Common Stock on July 31, 1998.
(2) Previously paid.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the high and low sales prices of the
Common Stock on September 11, 1998.
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 THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE>
PROSPECTUS
451,477 SHARES
VISIO CORPORATION
COMMON STOCK
This Prospectus relates to the sale of up to 451,477 shares (the "Shares")
of common stock, $.01 par value per share (the "Common Stock"), of Visio
Corporation (the "Company" or "Visio"). The Shares may be offered by certain
shareholders of the Company (the "Selling Shareholders") or by their pledgees,
donees, distributees or other successors in interest, from time to time in
transactions (which may include block transactions) in the over-the-counter
market through the Nasdaq National Market ("Nasdaq"), or on one or more other
securities markets and exchanges, in privately negotiated transactions, or
otherwise, at fixed prices that may be changed, at market prices prevailing at
the time of sale, at prices relating to such prevailing market prices or at
negotiated prices. The Selling Shareholders may effect such transactions by
selling the Shares directly to or through broker-dealers, and such broker-
dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Shareholders and/or the purchasers of the Shares
for whom such broker-dealers may act as agents or to whom they may sell as
principals, or both (which compensation as to a particular broker-dealer may
be in excess of customary commissions). See "Selling Shareholders" and "Plan
of Distribution."
The Company issued all the Shares to the Selling Shareholders in a private
placement on July 10, 1998 in connection with the merger (the "Merger") of a
wholly owned subsidiary of the Company with and into Kaspia Systems, Inc., a
Delaware corporation ("Kaspia"). The Shares issued in connection with the
Merger constitute the Shares being registered hereunder. In connection with
any sales, the Selling Shareholders and any brokers participating in such
sales may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"). See "Selling Shareholders."
None of the proceeds from the sale of the Shares by the Selling Shareholders
will be received by the Company. The Company has agreed to bear all expenses
(other than selling commissions and fees and stock transfer taxes) in
connection with the registration and sale of the Shares being offered by the
Selling Shareholders. The Company has agreed to indemnify the Selling
Shareholders and any broker-dealers who act in connection with the sale of the
Shares hereunder against certain liabilities, including liabilities under the
Securities Act.
The Common Stock is quoted on Nasdaq under the symbol "VSIO." On September
15, 1998, the closing sales price for the Common Stock as reported on Nasdaq
was $27.25 per share.
----------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE
"RISK FACTORS" BEGINNING ON PAGE 4.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------
The date of this Prospectus is September 16, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements and other
information with the Securities and Exchange Commission (the "Commission").
Such reports, proxy and information statements and other information filed by
the Company may be inspected and copied (at prescribed rates) at the public
reference facilities maintained by the Commission in Washington, D.C. (450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549) and at the
Commission's Regional Offices in New York (7 World Trade Center, 13th Floor,
New York, New York 10048) and Chicago (Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661). The Company is an electronic
filer and the Commission maintains a web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of the web site is
http://www.sec.gov. The Company's reports, proxy and information statements
and other information may also be inspected at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
This Prospectus is part of a Registration Statement on Form S-3 (together
with all amendments and exhibits thereto, the "Registration Statement") filed
with the Commission under the Securities Act with respect to the Shares
offered hereby. This Prospectus does not contain all the information set forth
in the Registration Statement, certain portions of which have been omitted in
accordance with the Commission's rules and regulations. For further
information with respect to the Company and the Shares offered hereby,
reference is made to the Registration Statement and the exhibits thereto. The
statements in this Prospectus are qualified in their entirety by reference to
the contents of any agreement or other document incorporated herein by
reference, a copy of which is filed as an exhibit to either the Registration
Statement or other filings by the Company with the Commission.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon such
person's written or oral request, a copy of any and all of the documents
incorporated by reference herein (other than exhibits to such documents,
unless such exhibits are specifically incorporated by reference into the
information that this Prospectus incorporates). Requests should be directed to
Visio Corporation, 520 Pike Street, Suite 1800, Seattle, Washington 98101-
4001, Attention: Secretary, telephone: (206) 521-4500.
The following documents filed with the Commission (File No. 0-26772) by the
Company are incorporated by reference into this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended December 31, 1997, March 31, 1998 and June 30, 1998;
(c) The Company's Current Report on Form 8-K dated as of July 10, 1998; and
(d) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on
September 15, 1995 under Section 12(g) of the Exchange Act.
All documents filed with the Commission by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Shares shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the respective dates of filing such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed modified, superseded or replaced for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies, supersedes or replaces such statement. Any
statement so modified, superseded or replaced shall not be deemed, except as
so modified, superseded or replaced, to constitute a part of this Prospectus.
----------------
The Company's principal executive offices are located at 520 Pike Street,
Suite 1800, Seattle, Washington 98101-4001, telephone: (206) 521-4500.
3
<PAGE>
RISK FACTORS
Except for the historical information contained in this Prospectus and the
documents incorporated herein by reference, the matters discussed herein,
particularly those identified with the words "expects," "believes,"
"anticipates" and similar expressions, are forward-looking statements. These
statements reflect management's best judgment based on factors known to them
at the time of such statements. Such forward-looking statements are subject to
certain risks and uncertainties, including, without limitation, those set
forth below, many of which are beyond the Company's control, that could cause
actual results to differ materially from those anticipated. The factors set
forth below should be carefully considered when evaluating the Company's
business and prospects, and the forward-looking information provided by Visio
pursuant to the safe harbor provisions established by recent securities
legislation. Readers should also carefully review the risk factors described
in other documents the Company files from time to time with the Commission.
Readers are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date hereof. The Company undertakes no
obligation to publicly release the result of any revisions to these forward-
looking statements that may be made to reflect events or circumstances after
the date hereof or to reflect the occurrence of unanticipated events.
Fluctuations in Quarterly Performance. The Company's quarterly results of
operations can be affected substantially by demand for the Company's products,
the timing and customer acceptance of new products, product enhancements and
promotions by the Company or its competitors, product returns, fluctuations in
foreign exchange rates, the impact of acquisitions of other technologies or
companies and changes in economic conditions. The Company is increasingly
focusing its sales efforts on volume licensing to large accounts. The timing
of those licenses could significantly affect quarterly results of operations.
A significant portion of the Company's operating expenses are relatively fixed
in the short term, and planned expenditures are based on the Company's
estimates for quarterly revenues. As a result, variations in timing of
revenues can cause significant variations in quarterly results of operations.
In general, the Company has experienced the strongest demand for its software
products during the December quarter and the weakest demand in the June
quarter. These seasonal patterns have been overshadowed in particular quarters
by the timing of new product introductions, expansion into international
markets, the execution of volume licenses and other factors affecting the
Company's business.
Dependence on Microsoft Windows; Relationship With Microsoft. Substantially
all the Company's revenues are derived from sales of products that are
designed to work within a Microsoft Windows environment and are marketed
primarily to Windows users. As a result, sales of the Company's products would
be materially affected by market developments adverse to Windows-based
products. As a developer of products for Windows, the Company has historically
enjoyed a collaborative working relationship with Microsoft. If the
relationship were disrupted for any reason, such as a decision by Microsoft to
introduce or acquire products that compete directly with the Company's
products, the Company's development efforts and results of operations could be
materially adversely affected.
Competition. The computer drawing and diagramming software markets are
intensely competitive and subject to rapidly changing technology and evolving
standards. The software industry has limited barriers to entry, and the
availability of personal computers with continuously expanding capabilities,
at progressively lower prices, contributes to the ease of market entry.
Because of this and other factors, competitive conditions in the future are
likely to intensify. The markets for the Company's products are characterized
by significant price competition, and the Company expects it will face
increasing pricing pressures. Increased competition could result in price
reductions, reduced profit margins and loss of market share, which could
materially adversely affect the Company's results of operations.
Substantial Dependence on a Single Technology; Limited Product Line. The
Company has derived substantially all its revenues to date from sales of
drawing and diagramming products based on its core technology. The Visio
product line and related enhancements are expected to continue to account for
a significant percentage of the Company's revenues for the foreseeable future.
A decline in demand for these products as a result of competition,
technological change or any other reason would have a material adverse effect
on the Company's results of operations.
4
<PAGE>
Rapid Technological Change and New Product Development. The markets for the
Company's products are characterized by rapidly changing technology, evolving
industry standards, changes in customer needs and frequent new product
introductions. The Company's future success will depend on its ability to
enhance its current products, to develop new products that meet changing
customer needs on a timely and cost-effective basis and to respond to emerging
industry standards and other technological changes. Any failure by the Company
to anticipate or respond adequately to changes in technology and customer
preferences, or any significant delays in product development or introduction,
would have a material adverse effect on the Company's results of operations.
New Product Introductions. The Company periodically introduces new products
and upgrades its current products in order to meet changing customer needs and
anticipated market demand. Due to potential difficulties in the development
process, there can be no assurance that such future products and upgrades will
be released in a timely manner or that they will receive market acceptance, if
and when released. Despite significant testing by the Company and by current
and potential customers, errors or "bugs" may still be found in new products
or upgrades after commencement of commercial shipments. Delays in the
commencement of commercial shipments of new products or upgrades, as well as
the discovery of errors or bugs after release, may result in adverse
publicity, customer dissatisfaction and delay or loss of product revenues.
Furthermore, from time to time the Company and others may announce new
products, capabilities or technologies that have the potential to replace or
shorten the life cycles of the Company's existing products. There can be no
assurance that announcements of currently planned or other new products by the
Company, by Microsoft or by the Company's competitors will not cause customers
to defer purchasing existing Company products or cause distributors to return
products to the Company. Delays or difficulties associated with new product
introductions or upgrades could have a material adverse effect on the
Company's business, financial condition and results of operations.
Management of Growth and Future Acquisitions. The Company has recently
experienced rapid growth that has placed, and will continue to place, a
significant strain on its management and operations. The Company's ability to
manage its growth effectively will require it to improve its operating,
financial and management information systems and to attract, train, motivate,
manage and retain key employees. Furthermore, the Company intends to enter
into strategic relationships and make strategic acquisitions of technologies
and businesses in order to expand its product lines and the capabilities of
its current products. The risks associated with acquisitions, including
increased costs and uncertain benefits and the ability to integrate operations
of acquired companies, could adversely affect the Company's results of
operations.
Risks Associated With International Operations. The Company expects that
international sales will account for an increasing portion of its revenues.
Most of the Company's international revenues are denominated in foreign
currencies. Consequently, a decrease in the value of a relevant foreign
currency in relation to the U.S. dollar occurring after establishment of
prices and before receipt of payment by the Company would have an adverse
effect on the Company's results of operations. Additionally, the Company may
be materially and adversely affected by increases in duty rates, exchange or
price controls, repatriation restrictions or other restrictions on foreign
currencies. The Company's international operations are subject to certain
other risks common to international operations, including, without limitation,
government regulations, import restrictions and, in certain jurisdictions,
reduced protection for the Company's intellectual property rights.
Change in Licensing and Marketing Methods. The Company is increasingly
emphasizing sales to enterprises through volume, installment and enterprise
licensing arrangements. These licensing arrangements typically involve a
longer cycle (up to 18 months from first contact to execution of an initial
license) than sales through other distribution channels, require a greater
investment of resources in establishing the enterprise relationship and result
in lower operating margins. The timing of the execution of volume licenses, or
their nonrenewal or renegotiation by large customers, could cause volatility
in the Company's quarterly results of operations and could materially
adversely affect the Company's results of operations.
Continued Reliance on Resellers and Distributors. The Company expects to
continue to rely on resellers and distributors for sales of its products in
domestic and international markets. Sales to the Company's two
5
<PAGE>
largest distributors during fiscal 1997, 1996 and 1995 accounted for an
aggregate of 47%, 50% and 47% of the Company's revenues, respectively. The
distribution channels through which software products are sold have been
characterized by rapid change, including consolidations and financial
difficulties of certain distributors and resellers, the emergence of new
resellers such as general mass merchandisers and the development of new
channels such as electronic networks. The Company's resellers and distributors
carry competing product lines. There can be no assurance that resellers and
distributors will continue to purchase the Company's products or be able to
market them effectively or that the Company will be able to effectively
distribute its products through new distribution channels.
Reliance on Outsourcing. The Company outsources most of the production of
its products, which primarily involves duplication of various media and the
printing of user manuals and packaging materials. In addition, the Company
outsources procurement, order fulfillment, technical support, customer service
and localization of its products. So long as it remains economically
advantageous to do so, the Company intends to continue, and possibly to
increase, outsourcing in the future. Although the Company believes that it has
adequate alternative suppliers of such services, the loss of a supplier or its
inability to perform contracted services could materially adversely affect the
Company's results of operations.
Dependence on Proprietary Technology. The Company's ability to compete
effectively depends in large part on its ability to develop and maintain
proprietary aspects of its technology. The Company relies on a combination of
copyright and trademark laws, trade secret protection, confidentiality
procedures and contractual provisions, including nondisclosure agreements with
employees and others, to protect its proprietary rights. There can be no
assurance that such measures will be adequate to protect the Company's
proprietary intellectual property or that claims of infringement of third
parties' intellectual property rights will not occur and, possibly, prevail.
Costs associated with an adverse judgment or settlement of intellectual
property litigation, as well as the cost of responding to a claim, both in
legal fees and expenses and the diversion of management resources, whether or
not the claim is valid, could have a material adverse effect on the Company's
results of operations.
Dependence on Key Personnel. The Company's success depends to a significant
extent on a small number of senior management and technical personnel. The
Company's growth and future success will depend in large part on its
continuing ability to hire, motivate and retain highly qualified management,
technical, sales and marketing personnel. Competition for such personnel is
intense and there can be no assurance that the Company will be successful in
hiring, motivating or retaining such qualified personnel.
Reliance on Independent Developers for Future Market Expansion. The Company
has designed its technology with an open architecture and has incorporated
certain features to encourage independent solution providers, system
integrators and other software developers to design industry or customer-
specific drawing and diagramming solutions that will extend the adoption and
use of the Company's products. There can be no assurance, however, that
developers will design solutions to extend the Company's products, and the
failure of these development efforts to materialize could adversely affect the
expansion of the markets for the Company's products. If independent developers
do design solutions for specific industries or customers, the Company could be
effectively precluded from offering add-on products that address the same
industries or customers.
6
<PAGE>
SELLING SHAREHOLDERS
The following table provides certain information regarding the Selling
Shareholders and the number of Shares being offered by them as of September
16, 1998.
SHARES BENEFICIALLY OWNED PRIOR TO OFFERING
<TABLE>
<CAPTION>
SHARES
PERCENTAGE OF BENEFICIALLY
COMMON STOCK SHARES THAT MAY OWNED AFTER
NAME AND ADDRESS AMOUNT OUTSTANDING BE SOLD OFFERING(1)
---------------- ------- ------------- --------------- ------------
<S> <C> <C> <C> <C>
Alamanori Limited....... 86,822(2) * 2,188 -0-
Terri Barnes............ 46 * 46 -0-
Building C Partners, a
California General
Partnership............ 1,354 * 1,354 -0-
Wallace E. and Sonja A.
Christopherson......... 3,632 * 3,632 -0-
Arthur J. Cruz.......... 660 * 660 -0-
David L. Davies......... 10,770 * 10,770 -0-
Discovery Ventures II
LLC.................... 27,342 * 27,342 -0-
Double Black Diamond II
LLC.................... 86,822(3) * 5,469 -0-
Draper Associates II,
L.P.................... 51,741 * 51,741 -0-
Jeff B. Erwin........... 110,871 * 110,871 -0-
William Fitzgibbons..... 3,469 * 3,469 -0-
Pawan Gupta............. 1,741 * 1,741 -0-
Clifford H. Higgerson... 5,415 * 5,415 -0-
Ken Van Hyning.......... 16,292 * 16,292 -0-
Steve Kelly............. 12,671 * 12,671 -0-
Richard M. Lucas Cancer
Foundation............. 14,678(4) * 8,203 -0-
Donald L. Lucas
Successor Trustee
Donald L. Lucas Profit
Sharing Trust Dated
1/1/84................. 14,678(5) * 2,708 -0-
Donald L. Lucas Trustee
for Donald L. Lucas &
Lygia S. Lucas Trust
Dated 12/3/84.......... 14,678(6) * 3,767 -0-
Kristie Moon............ 227 * 227 -0-
Dayna Nolan............. 491 * 491 -0-
Partech U.S. Partners
III C.V................ 86,822(7) * 39,309 -0-
Partech International
Salary Deferral Plan
Dated 1/1/92 FBO:
Thomas G. McKinley..... 86,822(8) * 547 -0-
Parvest U.S. Partners II
C.V.................... 86,822(9) * 39,309 -0-
Jerrold F. Petruzelli... 3,776 * 3,776 -0-
Tyrone F. Pike.......... 5,899 * 5,899 -0-
Vince C. Price.......... 215 * 215 -0-
Arlyn Augustus Robison.. 604 * 159 445
William Ross............ 1,322 * 1,322 -0-
Smith Barney as IRA
Custodian FBO Peggy Ann
Long................... 4,715(10) * 2,166 -0-
Smith Barney as IRA
Custodian FBO Terrence
E. Long................ 4,715(11) * 2,549 -0-
J. Edward Snyder........ 3,617 * 3,617 -0-
William L. Staley....... 283 * 283 -0-
Threecedars S.A......... 5,469 * 5,469 -0-
Newbridge Networks,
Inc.................... 60,944 * 60,944 -0-
Roland Van der Meer..... 1,094 * 1,094 -0-
Ward C. Waterman Unified
Credit Trust........... 3,091 * 3,091 -0-
Jeffrey A. Yarnell...... 12,671 * 12,671 -0-
</TABLE>
- --------
* Less than 1%.
(1) Assumes the sale of all the Shares offered by each of the Selling
Shareholders.
(2) Includes 84,634 Shares held by Double Black Diamond II LLC, Partech U.S.
Partners III C.V., Partech International Salary Deferral Plan and Parvest
U.S. Partners II C.V., affiliates of the Selling Shareholder, which Shares
are offered hereby.
(3) Includes 81,353 Shares held by Alamanori Limited, Partech U.S. Partners
III C.V., Partech International Salary Deferral Plan and Parvest U.S.
Partners II C.V., affiliates of the Selling Shareholder, which Shares are
offered hereby.
7
<PAGE>
(4) Includes 6,475 Shares held by Donald L. Lucas Successor Trustee Donald L.
Lucas Profit Sharing Trust Dated 1/1/84 and Donald L. Lucas Trustee for
Donald L. Lucas & Lygia S. Lucas Trust Dated 12/3/84, affiliates of the
Selling Shareholder, which Shares are offered hereby.
(5) Includes 11,970 Shares held by Richard M. Lucas Cancer Foundation and
Donald L. Lucas Trustee for Donald L. Lucas & Lygia S. Lucas Trust Dated
12/3/84, affiliates of the Selling Shareholder, which Shares are offered
hereby.
(6) Includes 10,911 Shares held by Richard M. Lucas Cancer Foundation and
Donald L. Lucas Successor Trustee Donald L. Lucas Profit Sharing Trust
Dated 1/1/84, affiliates of the Selling Shareholder, which Shares are
offered hereby.
(7) Includes 47,513 Shares held by Alamanori Limited, Double Black Diamond II
LLC, Partech International Salary Deferral Plan and Parvest U.S. Partners
II C.V., affiliates of the Selling Shareholder, which Shares are offered
hereby.
(8) Includes 86,275 Shares held by Alamanori Limited, Double Black Diamond II
LLC, Partech U.S. Partners III C.V. and Parvest U.S. Partners II C.V.,
affiliates of the Selling Shareholder, which Shares are offered hereby.
(9) Includes 47,513 Shares held by Alamanori Limited, Double Black Diamond II
LLC, Partech U.S. Partners III C.V. and Partech International Salary
Deferral Plan, affiliates of the Selling Shareholder, which Shares are
offered hereby.
(10) Includes 2,549 Shares held by Smith Barney as IRA Custodian FBO Terrence
E. Long, an affiliate of the Selling Shareholder, which Shares are
offered hereby.
(11) Includes 2,166 Shares held by Smith Barney as IRA Custodian FBO Peggy Ann
Long, an affiliate of the Selling Shareholder, which shares are offered
hereby.
None of the Selling Shareholders has had any material relationship with the
Company, or any of its affiliates, within the past three years.
The Selling Shareholders have represented to the Company that they acquired
the Shares for their own account for investment only and not with a view
toward the public sale or distribution thereof, except pursuant to sales
registered under the Securities Act or exemptions therefrom. In recognition of
the fact that the Selling Shareholders, even though acquiring the Shares for
investment, may wish to be legally permitted to sell their Shares when they
deem appropriate, the Company agreed with the Selling Shareholders to file
with the Commission under the Securities Act a Registration Statement with
respect to the resale of the Shares from time to time in transactions in the
over-the-counter market through Nasdaq, in privately negotiated transactions
or through a combination of such methods of sale, and has agreed to prepare
and file such amendments and supplements to the Registration Statement as may
be necessary to keep the Registration Statement effective until the earlier of
(i) the date that is one year after such Registration Statement is declared
effective and (ii) the date on which all the Shares have been sold or
distributed by the Selling Shareholders.
PLAN OF DISTRIBUTION
All the Shares offered hereby may be sold from time to time by the Selling
Shareholders, or by their pledgees, donees, distributees, transferees or other
successors-in-interest. The sale of the Shares by the Selling Shareholders may
be effected from time to time in transactions in the over-the-counter market
through Nasdaq, or on one or more other securities markets and exchanges, in
privately negotiated transactions or through a combination of such methods of
sale, at fixed prices that may be changed, at market prices prevailing at the
time of sale, at prices relating to such prevailing market prices or at
negotiated prices. The Selling Shareholders may effect the above-mentioned
transactions by selling the Shares directly to purchasers, acting as
principals for their own accounts, or by or through broker-dealers acting as
agents for the Selling Shareholders, or to broker-dealers who may purchase
Shares as principals and thereafter sell such Securities from time to time in
transactions on any exchange or market on which such securities are listed or
quoted, as applicable, in negotiated transactions, through a combination of
such methods of sale, or otherwise. Such broker-dealers may receive
compensation in
8
<PAGE>
the form of discounts, concessions or commissions from the Selling
Shareholders and/or the purchasers of the Shares for whom such broker-dealers
may act as agents or to whom they may sell as principals, or both (which
compensation as to a particular broker-dealer may be in excess of customary
commissions). Any broker-dealer may act as a broker-dealer on behalf of the
Selling Shareholders in connection with the offering of certain of the Shares
by the Selling Shareholders. None of the proceeds from the sale of the Shares
by the Selling Shareholders will be received by the Company. In addition, any
of the Shares that qualify for sale pursuant to Rule 144 promulgated under the
Securities Act may be sold in transactions complying with such Rule, rather
than pursuant to this Prospectus.
The Company has the right to suspend use of this Prospectus for a discrete
period of time under certain circumstances.
To the extent required, the number of the Shares to be sold, purchase
prices, public offering prices, the names of any agents, dealers or
underwriters, and any applicable commissions or discounts with respect to a
particular offer will be set forth by the Company in a Prospectus Supplement
accompanying this Prospectus or, if appropriate, a post-effective amendment to
the Registration Statement.
Any broker-dealers who act in connection with the sale of the Shares
hereunder may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, and any commissions received by them and profit
on any resale of the Shares as principal may be deemed to be underwriting
discounts and commissions under the Securities Act. The Company has agreed to
bear all expenses (other than selling commissions and fees and stock transfer
taxes) in connection with the registration and sale of the Shares being
offered by the Selling Shareholders. The Company has agreed to indemnify the
Selling Shareholders and broker-dealers who act in connection with the sale of
the Shares hereunder against certain liabilities, including liabilities under
the Securities Act.
Offers or sales of the Shares have not been registered or qualified under
the laws of any country other than the United States. To comply with certain
states' securities laws, if applicable, the Shares will be offered or sold in
such jurisdictions only through registered or licensed brokers or dealers.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of the Shares may be limited in its ability to
engage in market activities with respect to such Shares. In addition and
without limiting the foregoing, each Selling Shareholder will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, which provisions may limit the timing of purchases and sales of
any of the Shares by the Selling Shareholders. The foregoing may affect the
marketability of the Shares.
There can be no assurance that the Selling Shareholders will sell any or all
of the Shares offered by them hereunder.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed on for the
Company by Perkins Coie LLP, Seattle, Washington.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report (Form 10-K) for the fiscal year ended September 30,
1997, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance on such report given on the authority of such firm as
experts in accounting and auditing.
9
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING HEREIN CONTAINED AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED ON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE SHARES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE AN OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 3
Risk Factors............................................................... 4
Selling Shareholders....................................................... 7
Plan of Distribution....................................................... 8
Legal Matters.............................................................. 9
Experts.................................................................... 9
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
VISIO
CORPORATION
451,477 SHARES OF
COMMON STOCK
P R O S P E C T U S
SEPTEMBER 16, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses of the Registrant in
connection with the issuance and distribution of the securities being
registered (all amounts are estimated except the Securities and Exchange
Commission registration fee). Selling commissions and fees and stock transfer
taxes are payable individually by the Selling Shareholders.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $ 5,278
Blue sky filing fees and expenses.................................. 300
Legal fees and expenses............................................ 15,000
Accountants' fees and expenses..................................... 5,000
Miscellaneous expenses............................................. 4,422
-------
Total............................................................ $30,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Section 10 of the Registrant's Restated Bylaws provides
that the Registrant shall indemnify its directors and officers to the maximum
extent permitted by applicable law, and that the Registrant may indemnify its
employees or agents to the fullest extent permitted by applicable law, or to
such lesser extent as the Registrant's board of directors may determine.
Pursuant to Section 10 of the Registrant's Restated Bylaws, the Registrant
has entered into an indemnification agreement with each of its executive
officers and directors wherein the Registrant agrees to hold harmless and
indemnify the officer or director to the fullest extent permitted by
Washington law. The Registrant has agreed to indemnify the officer or director
against any and all losses, claims, damages, liabilities or expenses incurred
in connection with any actual, pending or threatened action, suit, claim or
proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal, in which the officer or director is, was or
becomes involved by reason of the fact that the officer or director is or was
a director, officer, employee or agent of the Registrant or that, being or
having been such a director, officer, employee or agent, the officer or
director is or was serving at the Registrant's request as a director, officer,
employee, trustee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan, whether the basis of such proceeding is alleged action
(or inaction) by the officer or director in an official capacity or in any
other capacity, unless such action, suit, claim or proceeding was not
authorized by the Registrant's board of directors. No indemnity pursuant to
the indemnification agreement shall be provided by the Registrant: (i) on
account of any suit in which a final, unappealable judgment is rendered
against the officer or director for an accounting of profits made from the
purchase or sale by the officer or director of securities of the Registrant in
violation of the provisions of Section 16(b) of the Exchange Act; (ii) for
damages that have been paid directly to the officer or director by an
insurance carrier under a policy of directors' and officers' liability
insurance maintained by the Registrant; (iii) on account of an officer's or
director's conduct that is finally adjudged to have been intentional
misconduct, or a knowing violation of law or RCW 23B.08.310 or any successor
provision of the statute, or a transaction from which the officer or director
derived benefit in money, property or services to which the officer or
director is not legally entitled; or (iv) if a final decision by a court
having jurisdiction in the matter determines such indemnification is unlawful.
II-1
<PAGE>
Section 23B.08.320 of the Washington Business Corporation Act authorizes a
corporation to limit a director's personal liability to the corporation or its
shareholders for monetary damages for conduct as a director, except in
circumstances involving intentional misconduct, a knowing violation of law,
unlawful distributions, or any transaction from which the director will
personally receive a benefit in money, property or services to which the
director is not legally entitled. Article 11 of the Registrant's Fourth
Restated Articles of Incorporation contains provisions implementing, to the
fullest extent permitted by Washington law, such limitations on a director's
liability to the Registrant and its shareholders.
The Company also maintains directors' and officers' liability insurance
policies for the benefit of its directors and officers.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S>
2.1 Agreement and Plan of Merger by and among Visio Corporation, Kaspia
Systems, Inc., VMS-1, Inc. and the stockholders of Kaspia named
therein, dated July 10, 1998 (filed as Exhibit 2.1 to the registrant's
Current Report on Form 8-K dated July 10, 1998 and incorporated herein
by reference).*
4.1 Specimen Common Stock Certificate of Visio Corporation (filed as
Exhibit 4.1 to the registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 1997 and incorporated herein by
reference).*
4.2 Investor Rights Agreement between Visio Corporation and the investors
named therein, dated July 10, 1998 (filed as Exhibit 4.1 to the
registrant's Current Report on Form 8-K dated July 10, 1998 and
incorporated herein by reference).*
5.1 Opinion of Perkins Coie LLP, counsel to the registrant, regarding the
legality of the Shares.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Perkins Coie LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page).*
</TABLE>
- --------
* Previously filed.
ITEM 17. 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, as amended (the "Securities Act");
(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; and
(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.
(2) That, for the purpose of determining any liability under the Securities
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) To remove from registration by means of a post-effective amendment any
of the securities being registered that 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
II-2
<PAGE>
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 in the initial
bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Seattle, State of
Washington, on September 16, 1998.
VISIO CORPORATION
By: /s/ Jeremy A. Jaech
-----------------------------------
Jeremy A. Jaech
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities indicated on September 16, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ Jeremy A. Jaech Chairman of the Board, President and Chief Executive
- ------------------------------------- Officer (Principal Executive Officer)
Jeremy A. Jaech
*Steve M. Gordon Chief Financial Officer and Senior Vice President,
- ------------------------------------- Finance and Administration (Principal Financial and
Steve M. Gordon Accounting Officer)
*Theodore C. Johnson Executive Vice President, Chief Technology Officer,
- ------------------------------------- and Director
Theodore C. Johnson
*Tom A. Alberg Director
- -------------------------------------
Tom A. Alberg
*Thomas H. Byers Director
- -------------------------------------
Thomas H. Byers
*John R. Johnston Director
- -------------------------------------
John R. Johnston
*Douglas J. Mackenzie Director
- -------------------------------------
Douglas J. Mackenzie
*Scott Oki Director
- -------------------------------------
Scott Oki
/s/ Jeremy A. Jaech
*By: ________________________________
Jeremy A. Jaech
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
2.1 Agreement and Plan of Merger by and among Visio Corporation, Kaspia Systems, Inc.,
VMS-1, Inc. and the stockholders of Kaspia named therein, dated July 10, 1998
(filed as Exhibit 2.1 to the registrant's Current Report on Form 8-K dated as of
July 10, 1998 and incorporated herein by reference).*
4.1 Specimen Common Stock Certificate of Visio Corporation (filed as Exhibit 4.1 to the
registrant's Annual Report on Form 10-K for the fiscal year ended September 30,
1997 and incorporated herein by reference).*
4.2 Investor Rights Agreement between Visio Corporation and the investors named
therein, dated July 10, 1998 (filed as Exhibit 4.1 to the registrant's Current
Report on Form 8-K dated as of July 10, 1998 and incorporated herein by reference).*
5.1 Opinion of Perkins Coie LLP, counsel to the registrant, regarding the legality of
the Shares.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Perkins Coie LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page).*
</TABLE>
- -------------
* Previously filed.
<PAGE>
EXHIBIT 5.1
[PERKINS COIE LLP LETTERHEAD]
September 16, 1998
Visio Corporation
520 Pike Street, Suite 1800
Seattle, Washington 98101-4001
RE: REGISTRATION STATEMENT ON FORM S-3
Gentlemen and Ladies:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-3, as amended by Form S-3/A No. 1 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), which you are filing with the Securities and Exchange Commission for the
resale of up to 451,477 shares of Common Stock, $.01 par value (the "Shares").
We have examined the Registration Statement and such documents and records of
the Company and other documents as we have deemed necessary for the purpose of
this opinion.
Based on and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and are validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
Perkins Coie LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to reference to our firm under the caption "Experts" in Amendment No.
1 to the Registration Statement (Form S-3 NO. 333-60577) and related Prospectus
of Visio Corporation for the registration of 451,477 shares of its common stock
and to the incorporation by reference therein of our report dated October 24,
1997, with respect to the consolidated financial statements of Visio Corporation
included in its Annual Report (Form 10-K) for the fiscal year ended September
30, 1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
September 16, 1998
