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As filed with the Securities and Exchange Commission on June 29, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VIEWPOINT CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE 7373 95-4102687
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Classification Identification Number)
Incorporation or Code Number)
Organization)
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498 SEVENTH AVENUE, SUITE 1810
NEW YORK, NEW YORK 10018
(212) 201-0800
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
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BRIAN J. O'DONOGHUE
SECRETARY AND GENERAL COUNSEL
VIEWPOINT CORPORATION
498 SEVENTH AVENUE, SUITE 1810
NEW YORK, NEW YORK 10018
(212) 201-0800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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WITH A COPY TO:
MILBANK, TWEED, HADLEY & MCCLOY LLP
ONE CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
(212) 530-5000
ATTENTION: ALEXANDER M. KAYE, ESQ.
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement until all
the shares hereunder have been sold.
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, other than securities offered only in connection with
dividend or interest reinvestment plans, please 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
AMOUNT PROPOSED MAXIMUM PROPOSED
TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
Common Stock, par value
$.001 per share........................... 3,400,000 $5.93 $20,162,000 $5,041.00
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee, based on the average of the high and low prices for
Viewpoint Corporation's common stock as reported on the Nasdaq National
Market on June 25, 2001 in accordance with Rule 457(c) under the Securities
Act.
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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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
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PROSPECTUS
PROSPECTUS SUBJECT TO COMPLETION, DATED JUNE 29, 2001
VIEWPOINT CORPORATION
3,400,000 SHARES OF COMMON STOCK
THE SHARES OFFERED IN THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK.
YOU SHOULD CAREFULLY CONSIDER THE "RISK FACTORS" REFERENCED ON PAGES 1-5 IN
DETERMINING WHETHER TO PURCHASE VIEWPOINT CORPORATION COMMON STOCK.
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The selling stockholders identified on page 6 of this Prospectus (the
"Selling Stockholders") are offering these shares of common stock of Viewpoint
Corporation (the "Company"). For additional information on the methods of sale,
you should refer to the section entitled "Plan of Distribution" on pages 6-7.
The Company will not receive any portion of the proceeds from the sale of these
shares.
The Company's common stock is quoted on the Nasdaq National Market
under the symbol "VWPT."
On June 25, 2001, the last reported closing price of the common stock
on the Nasdaq National Market was $5.98 per share.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed on the
adequacy or accuracy of the disclosures in the Prospectus. Any representation to
the contrary is a criminal offense.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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TABLE OF CONTENTS
PAGE
RISK FACTORS...................................................................1
THE COMPANY....................................................................5
USE OF PROCEEDS................................................................5
SELLING STOCKHOLDERS...........................................................5
PLAN OF DISTRIBUTION...........................................................6
LEGAL MATTERS..................................................................7
EXPERTS........................................................................7
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................8
WHERE YOU CAN FIND MORE INFORMATION............................................8
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS.
WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM
THAT CONTAINED IN THIS PROSPECTUS. THE SELLING STOCKHOLDERS ARE OFFERING TO
SELL, AND SEEKING OFFERS TO BUY, SHARES OF COMMON STOCK ONLY IN JURISDICTIONS
WHERE OFFERS AND SALES ARE PERMITTED. THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE
TIME OF DELIVERY OF THIS PROSPECTUS OR OF ANY SALE OF OUR COMMON STOCK.
NO ACTION IS BEING TAKEN IN ANY JURISDICTION OUTSIDE THE UNITED STATES
TO PERMIT A PUBLIC OFFERING OF THE COMMON STOCK OR POSSESSION OR DISTRIBUTION OF
THIS PROSPECTUS IN THAT JURISDICTION. PERSONS WHO COME INTO POSSESSION OF THIS
PROSPECTUS IN JURISDICTIONS OUTSIDE THE UNITED STATES ARE REQUIRED TO INFORM
THEMSELVES ABOUT AND TO OBSERVE ANY RESTRICTIONS AS TO THIS OFFERING AND THE
DISTRIBUTION OF THIS PROSPECTUS APPLICABLE TO THAT JURISDICTION.
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RISK FACTORS
An investment in our company involves a high degree of risk. You should
consider carefully the following information about these risks, together with
the other information contained in this report, before you decide to invest in
our company. If any of the following risks actually occur, our business,
financial condition or results of operations would likely suffer. In this case,
the market price of our common stock could decline, and you could lose all or
part of your investment.
WE HAVE A LIMITED OPERATING HISTORY THAT MAKES AN EVALUATION OF OUR BUSINESS
DIFFICULT
We have been developing e-commerce visualization solutions for the Web
since our acquisition of Real Time Geometry Corp. in December 1996.
Additionally, the e-commerce market is relatively new and evolving rapidly.
Accordingly, we have a relatively short operating history in this market upon
which you can evaluate our business and prospects. You should consider our
prospects in light of the risks and difficulties frequently encountered by early
stage online companies, including, but not limited to:
- We have an evolving and unpredictable business model;
- We face intense competition;
- We must establish and develop broad market acceptance of our
products, technologies and services;
- We must continue to develop new products, technologies and
enhancements;
- We must respond quickly to rapidly changing market developments,
customer demands and industry standards;
- We must attract, train and retain qualified employees; and
- We must effectively manage our growth.
If we are not successful in addressing these risks and challenges, we
will not be able to grow our business, compete effectively or achieve
profitability.
WE HAVE A HISTORY OF LOSSES AND EXPECT TO INCUR LOSSES IN THE FUTURE
We have had significant quarterly and annual operating losses since our
inception, and as of March 31, 2001, we had an accumulated deficit of
approximately $157,863,000. We have recently changed the focus of our business
from prepackaged graphics software products to e-commerce visualization
solutions. We believe that, despite this change in our strategic focus, we will
continue to incur operating losses for the foreseeable future.
OUR FUTURE REVENUES MAY BE UNPREDICTABLE AND MAY CAUSE OUR QUARTERLY RESULTS TO
FLUCTUATE
As a result of our limited operating history and the rapidly changing
nature of the markets in which we compete, we may be unable to forecast our
quarterly and annual revenues accurately. If our future quarterly operating
results fall below the expectations of securities analysts or investors, the
trading price of our common stock will likely drop. Our quarterly operating
results
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have fluctuated significantly in the past and may continue to fluctuate in the
future as a result of many factors, including:
- Ability to retain existing customers, attract new customers, and
satisfy our customers' demands;
- Market acceptance of our products, technologies and services;
- Introduction or enhancement of new products, technologies or
services by us or our competitors;
- Changes in prices for our products, technologies and services or
our competitors' products, technologies and services;
- Changes in usage of the Internet and online services and consumer
acceptance of the Internet and e-commerce;
- Costs of litigation and intellectual property protection;
- Growth in Internet use;
- Emergence of new competition;
- Varying operating costs and capital expenditures related to the
expansion of our business operations and infrastructure; and
- Technical difficulties with our technologies.
Based on these factors, we believe our revenues, expenses and operating
results could vary significantly in the future and period-to-period comparisons
should not be relied upon as indications of future results.
Our staffing and other operating expenses are based in large part on
anticipated revenues. It would be difficult for us to adjust our spending to
compensate for any unexpected shortfall. If we are unable to reduce our spending
following any such shortfall, our results of operations would be adversely
affected.
WE MAY BE UNABLE TO MEET OUR FUTURE CAPITAL REQUIREMENTS
We expect that our cash on hand, cash equivalents, marketable
securities and short-term investments will meet our working capital and capital
expenditure needs for at least the next 12 months. After that time, we may need
to raise additional funds and we cannot be certain that we would be able to
obtain additional financing on favorable terms, if at all. If we cannot raise
funds, if needed, on acceptable terms, we may not be able to develop or enhance
our products, take advantage of future opportunities or respond to competitive
pressures or unanticipated requirements, which could have a material adverse
effect on our business, financial condition, operating results and cash flows.
OUR STOCK PRICE IS VOLATILE AND MAY CONTINUE TO FLUCTUATE IN THE FUTURE
The market price of our common stock has fluctuated significantly in
the past. The price at which our common stock will trade in the future will
depend on a number of factors including:
- Our historical and anticipated operating results;
- General market and economic conditions;
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- Our announcement of new products, technologies or services;
- Actual or anticipated fluctuations in our operating results; and
- Developments regarding our products, technologies or services, or
those of our competitors.
In addition, the stock market has experienced extreme price and volume
fluctuations in recent months. This volatility has had a substantial effect on
our stock price, as well as the stock prices of other software companies,
particularly Internet companies. These broad market and industry fluctuations
may adversely affect the market price of our common stock. As a result, the
market price of our common stock may continue to fluctuate.
Also, securities class action litigation has often been brought against
companies following periods of volatility in the market price of its securities.
We may in the future be the target of similar litigation. Securities litigation
could result in substantial costs and divert management's attention and
resources, which could have a material adverse effect on our business, financial
condition, operating results and cash flows.
IF THE INTERNET DOES NOT CONTINUE TO EXPAND AS A WIDESPREAD COMMERCE MEDIUM,
DEMAND FOR OUR PRODUCTS AND TECHNOLOGIES MAY DECLINE SIGNIFICANTLY
The market for our products, technologies and services is new and
evolving rapidly. Growth in this market depends on increased use of the Internet
for e-commerce. If the rate of adoption of the Internet as a method for
e-commerce slows, the market for our products, technologies and services may not
grow, or may develop more slowly than expected.
We believe that increased Internet use may depend on the availability
of greater bandwidth or data transmission speeds or on other technological
improvements, and we are largely dependent on third party companies to provide
or facilitate these improvements. Changes in content delivery methods and
emergence of new Internet access devices such as TV set-top boxes could
dramatically change the market for streaming media products and services if new
delivery methods or devices do not use streaming media or if they provide a more
efficient method for transferring data than streaming media.
The e-commerce market is relatively new and evolving. Licensing of our
products and technologies depends in large part on the development of the
Internet as a viable commercial marketplace. There are now substantially more
users and much more "traffic" over the Internet than ever before, use of the
Internet is growing faster than anticipated, and the technological
infrastructure of the Internet may be unable to support the demands placed on it
by continued growth. Delays in development or adoption of new technological
standards and protocols, or increased government regulation, could also affect
Internet use. In addition, issues related to use of the Internet, such as
security, reliability, cost, ease of use and quality of service, remain
unresolved and may affect the amount of business that is conducted over the
Internet.
OUR MARKET IS CHARACTERIZED BY RAPIDLY CHANGING TECHNOLOGY, AND IF WE DO NOT
RESPOND IN A TIMELY MANNER, OUR PRODUCTS AND TECHNOLOGIES MAY NOT SUCCEED IN THE
MARKETPLACE
The market for e-commerce visualization is characterized by rapidly
changing technology. As a result, our success depends substantially upon our
ability to continue to enhance our products and technologies and to develop new
products and technologies that meet customers' increasing expectations.
Additionally, we may not be successful in developing and
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marketing enhancements to our existing products and technologies or introducing
new products and technologies on a timely basis. Our new or enhanced products
and technologies may not succeed in the marketplace.
OUR REVENUES COULD BE NEGATIVELY AFFECTED BY THE LOSS OF STRATEGIC PARTNERS
The majority of the Company's revenues have historically been from
strategic partners. Specifically, revenues from the National Center for Missing
and Exploited Children and Computer Associates accounted for 26% and 14% of
total revenues, respectively, in 2000; revenues from Intel and Computer
Associates accounted for 49% and 39% of total revenues, respectively, in 1999;
and revenues from Intel, Kodak and Minolta accounted for 66%, 15% and 15% of
total revenues, respectively, in 1998. The loss of any strategic partner could
significantly reduce our revenues, which could have a material adverse effect on
our business, financial condition, operating results and cash flows.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO IDENTIFY, HIRE, TRAIN AND RETAIN
HIGHLY QUALIFIED EMPLOYEES
Our future success depends on our continuing ability to identify, hire,
train and retain other highly qualified technical and managerial employees. The
competition for such employees is intense, and we have experienced difficulty in
identifying and hiring qualified engineering personnel. If we do not succeed in
attracting and retaining necessary technical and managerial employees in the
future, our business would be adversely affected.
Additionally, in order to attract and retain employees in the past, we
have granted options to purchase shares of common stock to employees at an
exercise price below the fair value of the common stock on the date of grant. As
a result, we have had to record deferred compensation related to the intrinsic
value of the option. This deferred compensation is amortized over the vesting
period of applicable options, which is generally four years, resulting in a
non-cash charge to earnings over the related vesting period. If we have to issue
additional options at an exercise price below the fair value of the common stock
on the date of grant, our business would be adversely affected.
OUR CHARTER DOCUMENTS COULD MAKE IT MORE DIFFICULT FOR AN UNSOLICITED THIRD
PARTY TO ACQUIRE US
Our Certificate of Incorporation and By-laws are designed to make it
difficult for an unsolicited third party to acquire control of us, even if a
change in control would be beneficial to stockholders. For example, our
Certificate or Incorporation authorizes our Board of Directors to issue up to
5,000,000 shares of "blank check" preferred stock. Without stockholder approval,
the Board of Directors has the authority to attach special rights, including
voting and dividend rights, to this preferred stock. With these rights,
preferred stockholders could make it more difficult for an unsolicited third
party to acquire our company.
In addition, we must receive a stockholders' proposal for an annual
meeting within a specified period for that proposal to be included on the
agenda. Because stockholders do not have the power to call meetings and are
subject to timing requirements in submitting stockholder proposals for
consideration at an annual or special meeting, any third-party takeover not
supported by the Board of Directors would be subject to significant delays and
difficulties.
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OUR BUSINESS IS SUBJECT TO GENERAL ECONOMIC CONDITIONS
Our revenues and results of operations will be subject to fluctuations
based upon the general economic conditions in the United States and, to a lesser
extent, abroad. If there is a general economic downturn or a recession in the
United States, we expect that business enterprises, including our customers and
potential customers, could substantially and immediately reduce their budgets or
delay implementation of Internet-focused business solutions. A deterioration in
existing economic conditions could therefore materially and adversely affect our
business, financial condition, operating results and cash flows.
THE COMPANY
We are a leading provider of e-commerce visualization solutions for the
World Wide Web. Our technology, which we call Viewpoint Experience Technology,
is designed to make the use of rich media on the web, particularly
photo-realistic 3D, practical and widespread.
Viewpoint Experience Technology allows websites to integrate numerous
rich media types seamlessly on regular web pages. These media types,
particularly interactive 3D, can add dimension, animation, realistic color,
shadows and real-time reflections, movement and robust interactivity to formerly
flat web images. It enables users to better access and interact with images,
rotate them, change colors and patterns, all while experiencing extraordinary
visual dimension and accuracy. Viewpoint Experience Technology serves up these
enhanced product images so that every user, even those on narrowband
connections, can access and interact with them easily.
A key component of the Viewpoint Experience is the Viewpoint Media
Player, which allows the seamless integration of all major media types,
including Viewpoint Experience Technology, photographic panoramas, audio, object
movies, vector text and more. With the Viewpoint Media Player, internet
end-users now have easy access to a new, richer yet totally accessible media
format.
While Viewpoint Experience Technology offers significant advantages to
all web users and website operators, we believe its most promising immediate
commercial application is as a means to make web marketing, branding and
commerce more effective.
Our principal executive offices are located at 498 Seventh Avenue,
Suite 1810, New York, New York 10018 and our telephone number is (212) 201-0800.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of common
stock offered by the Selling Stockholders pursuant to this Prospectus.
SELLING STOCKHOLDERS
The following table sets forth the beneficial ownership of the shares
of our common stock owned as of June 21, 2001 by each of the Selling
Stockholders. Pursuant to two agreements entered into in April and May, 2001
between us and Computer Associates International, Inc., we agreed to register
shares of our common stock owned by Computer Associates. We have been advised by
Computer Associates that they have transferred such shares to the Selling
Stockholders. Accordingly, we are registering such transferred shares under this
registration statement. Except as otherwise disclosed herein, none of the
Selling Stockholders has had a material relationship with us within the past
three years other than as a result of the ownership of the shares or other
securities. The following table
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assumes that the Selling Stockholders sell all of the shares of common stock
being offered by them. We do not presently know the exact number of shares that
will actually be sold.
Number of
Shares Beneficially Shares Shares Beneficially Owned
Owned Before Offering Being Offered After Offering
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NAME NUMBER PERCENT(1) NUMBER PERCENT(1)
---- ------ ---------- ------ ----------
CastleRock Fund, Ltd. 1,462,952 3.79% 740,000 722,952 1.87%
CastleRock Partners II, L.P. 92,171 * 30,000 62,171 *
CastleRock Partners, L.P. 1,079,829 2.8% 410,000 669,829 1.74%
Quantum Partners LDC 440,000 1.14% 220,000 220,000 *
Perry Partners International, Inc. 700,000 1.82% 700,000 0 *
Perry Partners, L.P. 300,000 * 300,000 0 *
James E. Crabbe Revocable Trust 3,500,000 9.08% 1,000,000 2,500,000 6.48%
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* Percentage of shares beneficially owned is less than one percent of total.
(1) The percentages are calculated on the basis of the number of outstanding
shares of common stock as of June 21, 2001, which is 38,591,279.
PLAN OF DISTRIBUTION
Shares of common stock covered hereby may be offered and sold from time
to time by the Selling Stockholders. The Selling Stockholders will act
independently of us in making decisions with respect to the timing, manner and
size of each sale. The Selling Stockholders may sell the shares being offered
hereby: (i) on the Nasdaq National Market, or otherwise at prices and at terms
then prevailing or at prices related to the then current market price; or (ii)
in private sales at negotiated prices directly or through a broker or brokers,
who may act as agent or as principal, or by a combination of those methods of
sale. The Selling Stockholders and any underwriter, dealer or agent who
participate in the distribution of the shares covered hereby may be deemed to be
underwriters under the Securities Act of 1933, and any discount, commission or
concession received by any of those persons might be deemed to be an
underwriting discount or commission under the Securities Act of 1933.
Any broker-dealer participating in a transaction like that described
above as agent may receive commissions from the Selling Stockholders (and, if
acting as agent for the purchaser of the shares, from the purchaser). Brokerage
fees may be paid by the Selling Stockholders. Broker-dealers may agree with the
Selling Stockholders to sell a specified number of shares at a stipulated price
per share, and, to the extent such a broker-dealer is unable to do so acting as
agent for the Selling Stockholders, to purchase as principal any unsold shares
at the price required to fulfill the broker-dealer commitment to the Selling
Stockholders. Broker-dealers who acquire shares as principal may thereafter
resell those shares from time to time in transactions (which may involve crosses
and block transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described above) in the
over-the-counter market, in negotiated transactions or by a combination of those
methods of sale or otherwise at market prices prevailing at the time of sale or
at negotiated prices, and in connection with any of those resales may pay to or
receive from the purchasers of those shares commissions computed as described
above.
In effecting sales, brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate in the
resales. The Selling Stockholders may enter into hedging transactions with
broker-dealers, and in connection with those transactions, broker-dealers may
engage in short sales of the shares. The Selling Stockholders also may sell
shares
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short and deliver the shares to close out such short positions. The Selling
Stockholders also may enter into option or other transactions with
broker-dealers that require the delivery to the broker-dealer of the shares,
which the broker-dealer may resell pursuant to this Prospectus. The Selling
Stockholders also may pledge the shares to a broker or dealer, and upon a
default, the broker or dealer may effect sales of the pledged shares pursuant to
this Prospectus.
The Selling Stockholders may indemnify any broker-dealer that
participates in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities Act of 1933. Any
commissions paid or any discounts or concessions allowed to any of those
broker-dealers, and any profits received on the resale of such shares, may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933 if any of those broker-dealers purchase shares as principal.
In order to comply with the securities laws of certain states, if
applicable, our common stock may only be sold in those jurisdictions through
registered or licensed brokers or dealers. In addition, in certain states, the
common stock may not be sold unless such shares have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
We have agreed to pay all expenses, including legal and accounting fees
and expenses, in connection with the registration of the shares of the Selling
Stockholders pursuant to this Prospectus.
LEGAL MATTERS
The validity of the common stock offered by this Prospectus will be
passed upon for us by Milbank, Tweed, Hadley & McCloy LLP, New York, New York.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K of Viewpoint Corporation for the
year ended December 31, 2000 have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" in this
Prospectus reports that we file with them, which means that we can disclose
important information to you by referring you to those reports. Accordingly, we
are incorporating by reference in this Prospectus the documents listed below and
any future filings we make with the Commission under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934:
(1) Our Annual Report on Form 10-K for the year ended December 31,
2000;
(2) Our Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2001;
(3) Our Current Reports on Form 8-K dated April 27, 2001 and May 15,
2001; and
(4) The description of our common stock set forth on our registration
statement filed On October 26, 1995 with the Commission on Form
8-A pursuant to Section 12 of the Exchange Act, including any
amendments or reports filed for the purpose of updating such
description.
The information incorporated by reference is deemed to be part of this
Prospectus, except for any information superseded by information contained
directly in this Prospectus. Any information that we file later with the
Commission will automatically update and supercede this information.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other documents with the Securities and Exchange Commission under the Securities
Exchange Act of 1934. You may read and copy any of those reports, proxy
statements or other documents at the public reference facilities maintained by
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at its regional offices located at 7 World Trade
Center, New York, New York 10048 and Northwest Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Please call the Commission at
1-800-SEC-0330 for further information on its public reference facilities. These
filings are also available to the public from commercial document retrieval
services and at the Commission's Web site at www.sec.gov.
Our common stock is quoted on the Nasdaq National Market. Reports,
proxy statements and other information concerning the Company can be inspected
at the National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006. In addition, we maintain a website at www.viewpoint.com
that contains additional information, including news releases, about our
business and operations. Information contained in this website does not
constitute, and shall not be deemed to constitute, part of this Prospectus.
You may also request a copy of any of our filings with the Commission,
or any of the agreements or other documents that constitute exhibits to those
filings, at no cost, by writing or telephoning us at the following address or
phone number:
Corporate Secretary
Viewpoint Corporation
498 Seventh Avenue, Suite 1810
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12
New York, New York 10018
(212) 201-0800
This Prospectus constitutes a part of a registration statement on Form
S-3 filed by us with the Commission under the Securities Act. This Prospectus
does not contain all the information that is contained in the registration
statement, some of which we are allowed to omit in accordance with the rules and
regulations of the Commission. We refer to the registration statement and to the
exhibits filed with the registration statement for further information with
respect to the Company. Copies of the registration statement and the exhibits to
the registration statement are on file at the offices of the Commission and may
be obtained upon payment of the prescribed fee or may be examined without charge
at the public reference facilities of the Commission described above. Statements
contained in this Prospectus concerning the provisions of documents are
summaries of the material provisions of those documents, and each of those
statements is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission. Since this Prospectus may not
contain all of the information that you may find important, you should review
the full text of these documents.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses, other
than the underwriting discounts and commissions, payable by Viewpoint
Corporation (the "Registrant") in connection with the sale of the common stock
being offered by the Selling Stockholders.
AMOUNT TO BE PAID
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SEC registration fee................................. $ 5,041
Legal fees and expenses.............................. 10,000
Accounting fees and expenses......................... 10,000
Printing expenses.................................... 5,000
Miscellaneous........................................ 1,500
Total....................................... $31,541
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") makes
provision for the indemnification of officers and directors in terms
sufficiently broad to indemnify officers and directors under certain
circumstances from liabilities (including reimbursement for expenses incurred)
arising under the Securities Act. Section 145 of the DGCL empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of their capacity or status as directors and officers,
provided that this provision shall not eliminate or limit the liability of a
director: (1) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) arising
under Section 174 of the DGCL or (4) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise.
The Registrant's amended and restated certificate of incorporation
provides for indemnification of the Registrant's directors against liability to
the Registrant and its stockholders to the fullest extent permitted by the DGCL.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers and may indemnify others to the fullest extent permitted
by law. The Registrant's 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 also maintains an insurance policy insuring its
directors and officers against liability for certain acts and omissions while
acting in their official capacities.
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ITEM 16. EXHIBITS
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
5.1 Opinion of Milbank, Tweed, Hadley & McCloy LLP with respect to the
validity of the securities being offered.
23.1 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent certified public accountants.
24 Power of Attorney (included on the signature page of this registration statement).
ITEM 17. UNDERTAKINGS
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) 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. 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(c) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that paragraphs
(1)(a) and (1)(b) do not apply if the registration statement
is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each 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 this offering.
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(4) 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 Section 15(d) of the Exchange Act of
(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 the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in New York, New York on June 27, 2001.
VIEWPOINT CORPORATION
By: /s/ Robert E. Rice
----------------------
Name: Robert E. Rice
Title: President and Chief
Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated. Each person whose name appears below hereby constitutes and
appoints each of Robert E. Rice and Jeffrey J. Kaplan, or any of them, each
acting alone, such person's true and lawful attorney-in-fact, with full power of
substitution to sign for such person and in such person's name and capacity
indicated below, in connection with this Registrant's registration statement on
Form S-3, including to sign this registration statement and any and all
amendments to this registration statement, including Post-Effective Amendments,
and to file the same with the Securities and Exchange Commission, hereby
ratifying and confirming such person's signature as it may be signed by said
attorneys-in-fact to any and all amendments.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert E. Rice Director, President and Chief June 27, 2001
---------------------- Executive Officer (Principal
Robert E. Rice Executive Officer)
/s/ Jeffrey J. Kaplan Executive Vice President and June 27, 2001
---------------------- Chief Financial Officer (Principal
Jeffrey J. Kaplan Financial Officer)
/s/ Anthony Pane Vice President and Controller June 27, 2001
---------------------- (Principal Accounting Officer)
Anthony Pane
/s/ Thomas Bennett Director June 27, 2001
----------------------
Thomas Bennett
/s/ Bruce R. Chizen Director June 26, 2001
----------------------
Bruce R. Chizen
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ Samuel H. Jones, Jr.
----------------------- Director June 27, 2001
Samuel H. Jones, Jr.
----------------------- Director June __, 2001
Lennert J. Leader
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
5.1 Opinion of Milbank, Tweed, Hadley & McCloy LLP with respect to the
validity of the securities being offered.
23.1 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent certified public accountants.
24 Power of Attorney (included on the signature page of this registration statement).