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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
REGISTRATION NO. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VISIO CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C>
WASHINGTON 91-1448389
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
520 Pike Street, Suite 1800
SEATTLE, WASHINGTON 98101-4001
(Address of principal executive offices, including zip code)
VISIO CORPORATION 1995 LONG-TERM INCENTIVE COMPENSATION PLAN
(Full title of the plan)
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, including area code, of agent for service)
----------------------
COPIES TO:
EVELYN CRUZ SROUFE
PERKINS COIE LLP
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
(206) 583-8888
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES NUMBER OF SHARES TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE REGISTERED(1) OFFERING PRICE PER SHARE(2) AGGREGATE OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 4,940,000 $41.03 $202,688,200 $59,793.02
per share:
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(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance under the
Visio Corporation 1995 Long-Term Incentive Compensation Plan, as amended,
as the result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock of the Registrant.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
amount of registration fee. The price per share is estimated to be $41.03
based on the average of the high $42.00 and low $40.06 sales prices for the
Common Stock in the over-the-counter market on April 14, 1998 as reported
on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997 (File No. 0-26772);
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the year covered by the Annual Report referred to in (a)
above; and
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A (File 11 No. 0-26772) filed with the
Securities and Exchange Commission (the "Commission") on September 15, 1995
under Section 12(g) of the Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment, which indicates that the securities offered hereby
have been sold or which deregisters the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 agrees 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
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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.
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.
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock
being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Perkins Coie LLP (included in the opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
99.1 Visio Corporation 1995 Long-Term Incentive Compensation Plan, as
amended (incorporated by reference to Exhibit 10.2 of the Registrant's
Annual Report on Form 10-K for the fiscal year ended September 30,
1997)
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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 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(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 (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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
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 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
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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 Securities 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 that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on April 20, 1998.
VISIO CORPORATION
By: /s/ Jeremy A. Jaech
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Jeremy A. Jaech
President and Chief Executive Officer
POWER OF ATTORNEY
EACH PERSON WHOSE INDIVIDUAL SIGNATURE APPEARS BELOW HEREBY AUTHORIZES
JEREMY A. JAECH AND THEODORE C. JOHNSON AND EACH OF THEM AS ATTORNEYS-IN-FACT,
WITH FULL POWER OF SUBSTITUTION, TO EXECUTE IN THE NAME AND ON BEHALF OF SUCH
PERSON, INDIVIDUALLY AND IN EACH CAPACITY STATED BELOW, AND TO FILE, ANY AND ALL
AMENDMENTS TO THIS REGISTRATION STATEMENT, INCLUDING ANY AND ALL POST-EFFECTIVE
AMENDMENTS WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY REGULATORY
AUTHORITY.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on April 20, 1998.
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SIGNATURE TITLE
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/s/ Jeremy A. Jaech Chairman of the Board, President and Chief
- ----------------------------- Executive Officer (Principal Executive Officer)
Jeremy A. Jaech
/s/ Steve M. Gordon Chief Financial Officer and Senior Vice
- ----------------------------- President, Finance and Operations (Principal
Steve M. Gordon Financial and Accounting Officer)
/s/ Theodore C. Johnson Executive Vice President, Chief Technology
- ----------------------------- and Director
Theodore C. Johnson
/s/ Tom A. Alberg Director
- -----------------------------
Tom A. Alberg
/s/ Thomas H. Byers Director
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Thomas H. Byers
/s/ John R. Johnston Director
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John R. Johnston
/s/ Douglas Mackenzie Director
- -----------------------------
Douglas Mackenzie
/s/ Scott Oki Director
- -----------------------------
Scott Oki
</TABLE>
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INDEX TO EXHIBITS
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EXHIBIT SEQUENTIALLY
NUMER DESCRIPTION NUMBERED PAGE
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<C> <S> <C>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock
being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Perkins Coie LLP (included in the opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
99.1 Visio Corporation 1995 Long-Term Incentive Compensation Plan, as
amended (incorporated by reference to Exhibit 10.2 of the Registrant's
Annual Report on Form 10-K for the fiscal year ended September 30,
1997)
</TABLE>
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EXHIBIT 5.1
[LETTERHEAD OF PERKINS COIE LLP]
April 20, 1998
Visio Corporation
520 Pike Street, Suite 1800
Seattle, Washington 98101-4001
RE: REGISTRATION ON FORM S-8
Gentlemen and Ladies:
We have acted as counsel to Visio Corporation (the "Company") in connection
with the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") which is being filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), with respect to
4,940,000 shares of common stock, $.01 par value, of the Company (the "Shares").
The Shares may be issued pursuant to the Visio Corporation 1995 Long-Term
Incentive Compensation Plan, as amended (the "Plan").
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. In giving this opinion, we are assuming the authenticity of
all instruments presented to us as originals, the conformity with originals of
all instruments presented to us as copies and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that may be issued pursuant to the Plan have been duly authorized and
that, upon the due execution by the Company and the registration by its
registrar of the Shares, the sale thereof by the Company in accordance with the
terms of the Plan, and the receipt of the consideration therefor in accordance
with the terms of the Plan, the Shares will be 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
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Visio Corporation 1995 Long-Term Incentive
Compensation Plan, as amended, of our report dated October 24, 1997, with
respect to the consolidated financial statements and schedule of Visio
Corporation included in the Annual Report on Form 10-K of Visio Corporation for
the fiscal year ended September 30, 1997, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Seattle, Washington
April 21, 1998
