As filed with the Securities and Exchange Commission on December 29, 2003
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 Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
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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)
_________________
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
PROPOSED
PROPOSED MAXIMUM AMOUNT OF
AMOUNT MAXIMUM AGGREGATE REGISTRATION
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE OFFERING FEE
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE
Common Stock, par value
$.001 per share......... 3,125,000 $0.71 $2,218,750 $179.50
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) under the Securities Act
based on the average of the high and low prices for Viewpoint
Corporation's common stock as reported on the Nasdaq National Market on
December 23, 2003.
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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.
PROSPECTUS
PROSPECTUS SUBJECT TO COMPLETION, DATED ___________, 2004
VIEWPOINT CORPORATION
3,125,000 SHARES OF COMMON STOCK
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The selling stockholder identified on page 6 of this prospectus is
offering these shares of common stock of Viewpoint Corporation. The shares may
be offered through public or private transactions, at prevailing market prices
or at privately negotiated prices. Viewpoint will not receive any portion of the
proceeds from the sale of these shares.
Viewpoint's common stock is quoted on the Nasdaq National Market under the
symbol "VWPT."
On December 26, 2003, the last reported closing price of the common stock
on the Nasdaq National Market was $0.74 per share.
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.
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 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.
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.
THE DATE OF THIS PROSPECTUS IS _________________, 2004.
TABLE OF CONTENTS
PAGE
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RISK FACTORS.............................................................. 1
FORWARD-LOOKING STATEMENTS................................................ 5
OTHER INFORMATION......................................................... 5
USE OF PROCEEDS........................................................... 5
PRIVATE PLACEMENT OF COMMON STOCK......................................... 5
SELLING STOCKHOLDER....................................................... 6
PLAN OF DISTRIBUTION...................................................... 6
LEGAL MATTERS............................................................. 8
EXPERTS................................................................... 8
INCORPORATION OF DOCUMENTS BY REFERENCE................................... 8
WHERE YOU CAN FIND MORE INFORMATION....................................... 9
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RISK FACTORS
An investment in Viewpoint involves a high degree of risk. You should
consider carefully the following information about these risks, together with
the other information contained or incorporated by reference in this prospectus,
before you decide to invest in Viewpoint. 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 HISTORY OF LOSSES AND EXPECT TO INCUR LOSSES IN THE FUTURE, WHICH MAY
CAUSE OUR SHARE PRICE TO DECLINE
We have had significant quarterly and annual operating losses since our
inception, and as of December 31, 2002, we had an accumulated deficit of
approximately $224,077,000. We believe that we will continue to incur operating
losses in the future, which may cause our share price to decline.
WE MAY BE REQUIRED TO REDEEM $2.7 MILLION IN OUTSTANDING CONVERTIBLE DEBT AS
EARLY AS JUNE 2004 AND DOING SO COULD ADVERSELY AFFECT OUR ABILITY TO FUND
OPERATIONS.
We issued three tranches of convertible notes in amounts of $900,000 each.
Each trance of the notes are convertible into shares of Company common stock at
prices of $1.00, $1.00, and $1.09. Although the notes are due on December 31,
2007, the holders may redeem all or part of the notes at par between June 30,
2004 and December 31, 2005 if the dollar volume-weighted average price of
Company common stock is less than the conversion price applicable to the notes
for any 25 consecutive trading days. After December 31, 2005, the investors may
redeem the notes at 83% of par if the dollar volume-weighted average price of
Company common stock is less than the conversion price applicable to the notes
for any 25 consecutive trading days. If the investors redeem convertible notes
between June 30, 2004 and December 30, 2007 in accordance with the foregoing,
the Company may, at its option, pay up to 20% of the amount to be redeemed in
shares of Company common stock. Shares issued by the Company in partial
redemption would be issued at 95% of the dollar volume-weighted average price
of Company common stock for the 20 consecutive trading days immediately
preceding payment. If we are required to redeem the convertible notes in
accordance with the foregoing, our ability to fund our operations will be
materially adversely affected.
WE MAY HAVE TO OBTAIN FINANCING ON LESS FAVORABLE TERMS, WHICH COULD DILUTE
CURRENT STOCKHOLDERS' OWNERSHIP INTERESTS IN THE COMPANY
In order to fund our operations and pursue our growth strategy we may seek
additional financing through public or private equity funding or from other
sources. We have no commitment for additional financing and we may experience
difficulty in obtaining additional financing on favorable terms, if at all. Any
financing we obtain may contain covenants that restrict our freedom to operate
our business or may have rights, preferences, or privileges senior to our
common stock and may dilute our current stockholders' ownership interest in
Viewpoint.
WE MAY NEED TO DEVELOP NEW PRODUCTS OR OTHER UNTESTED METHODS OF INCREASING
SALES WITH OUR EXISTING PRODUCTS OR DISTRIBUTION NETWORK TO GENERATE SALES AND
IF WE ARE UNSUCCESSFUL THE GROWTH OF OUR BUSINESS MAY CEASE OR DECLINE.
Our license and services revenues have declined over recent quarters. If
this decrease in sales of our products continues, or fails to increase, we will
be unable to generate sufficient revenues to offset current costs. Accordingly,
we may be required to develop new products or other untested methods to
increase sales. If these new products or untested methods fail to increase
sales, our business may cease or decline.
OUR FUTURE REVENUES MAY BE UNPREDICTABLE AND MAY CAUSE OUR QUARTERLY RESULTS TO
FALL BELOW MARKET EXPECTATIONS
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 due to
the following factors, the trading price of our common stock will likely drop:
- our ability to retain existing customers, attract new customers, and
satisfy our customers' demands;
- introduction or enhancement of new products, technologies or
services by our competitors which may render our technologies and
services less attractive or obsolete;
- varying operating costs and capital expenditures related to the
expansion of our business operations and infrastructure; and
- difficulty integrating our graphics technology with third party
software programs.
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 may
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.
OUR STOCK PRICE IS VOLATILE, WHICH COULD SUBJECT US TO CLASS ACTION LITIGATION
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:
- actual or anticipated fluctuations in our operating results;
- general market and economic conditions affecting Internet companies;
- our announcement of new products, technologies or services; and
- developments regarding our products, technologies or services, or
those of our competitors.
In addition, securities class action litigation has often been brought
against companies following periods of volatility in the market price of their
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.
WE MAY BE DELISTED FROM NASDAQ, WHICH WOULD ADVERSELY IMPACT OUR STOCK PRICE AND
THE ABILITY OF OUR STOCKHOLDERS TO PURCHASE AND SELL OUR SHARES IN AN ORDERLY
MANNER
We may be unable to maintain compliance with Nasdaq listing standards.
The Nasdaq National Market notified us on December 12, 2003 that our
common stock may be delisted from Nasdaq for failure to maintain a minimum bid
price of $1.00. To regain compliance with Nasdaq's minimum bid price rule, our
common stock must close above $1.00 for ten consecutive trading days over the
180 days following the notice we received. If we are unable to regain compliance
with the minimum bid price in the future, we may be eligible to transfer our
common stock to listing on The Nasdaq SmallCap Market if we meet applicable
listing standards and thereby gain an additional 180 days to regain compliance
with the minimum bid price requirement. Transitioning to the SmallCap Market or
the delisting of our stock could damage our general business reputation and
impair our ability to raise additional funds. This may further adversely impact
our stock price. Furthermore, if our shares are delisted and are traded on the
Nasdaq Small Cap Market, the over-the-counter bulletin board or the "pink
sheets", their value may be negatively impacted because stocks which trade in
this manner tend to be less liquid and trade with larger variations between the
bid and ask price than stocks on the Nasdaq National Market. Accordingly, any of
the foregoing events could have a material adverse effect on our business,
financial condition and operating results.
WE MAY EFFECT A REVERSE STOCK SPLIT AND IF WE DO SO, OUR STOCK PRICE MAY DECLINE
AFTER THE REVERSE STOCK SPLIT
In response to the potential delisting of our common stock due to the
failure to meet the Nasdaq National Market's minimum bid price requirement
discussed above, we may ask our stockholders to authorize a reverse stock split
at our annual meeting in 2004. If the reverse stock split is approved by our
stockholders and we effect the reverse stock split, we would reduce the number
of outstanding shares of common stock. With fewer shares outstanding, we would
expect our stock price to increase. While a reverse stock split may enable us to
cure the minimum bid price deficiency, share prices of companies effecting
reverse stock splits often decline and we cannot assure you that our stock price
would not decline after a reverse stock split.
IF THE INTERNET DOES NOT BECOME A MORE 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 the computer graphics market depends, in large part, 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. 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. Any of these developments could adversely effect
our business because substantially all of our revenues are derived from online
services and sales.
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 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.
In addition, the computer graphics industry is subject to rapidly changing
methods and models of information delivery. If a general market migration to a
method of information delivery that is not conforming with our technologies were
to occur, our business and financial results would be adversely impacted.
SECURITY RISKS COULD LIMIT THE GROWTH OF E-COMMERCE WHICH WOULD ADVERSELY IMPACT
OUR ABILITY TO INCREASE SALES OF GRAPHICS TECHNOLOGY
E-tailers are less likely to acquire licenses to use our graphics
technology and less likely to have a desire for our services if e-commerce
activity fails to grow or declines due to Internet security risks. Security
risks that may occur are failure of encryption and authentication technologies
and third-party circumvention of security measures. These risks may limit the
ability of e-tailers to sell their products online due to damage to the
e-tailers' reputations and restrictions by credit card companies of online
transactions.
WE MAY BE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS
Our success and ability to compete substantially depend on the uniqueness
or value of our products and technologies. We rely on a combination of
copyright, trademark, patent, trade secret laws, and employee and third-party
nondisclosure agreements to protect our intellectual and proprietary rights,
products, and technologies. Policing unauthorized use of our products and
technologies is difficult and the steps we take may not prevent the
misappropriation or infringement of technology or proprietary rights. In
addition, litigation may be necessary to enforce our intellectual property
rights. Such misappropriation or litigation could result in substantial costs
and diversion of resources and the potential loss of intellectual property
rights, any of which would adversely impair our business.
WE MAY BE LIABLE FOR INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS
Our products and technologies may be the subject of infringement claims in
the future. This could result in costly litigation and could require us to
obtain a license to the intellectual property of third parties. We may be unable
to obtain licenses from these third parties on favorable terms, if at all. Even
if a license is available, we may have to pay substantial royalties to obtain
it. If we cannot obtain necessary licenses on reasonable terms, our business
would be adversely affected.
WE MAY NEED TO ENTER INTO BUSINESS COMBINATIONS AND STRATEGIC ALLIANCES WHICH
COULD BE DIFFICULT TO INTEGRATE AND MAY DISRUPT OUR BUSINESS
We may continue to expand our operations or market presence by entering
into business combinations, investments, joint ventures or other strategic
alliances with other companies. These transactions create risks such as:
- difficulty assimilating the operations, technology and personnel of
the combined companies;
- disruption of our ongoing business;
- problems retaining key technical and managerial personnel;
- expenses associated with amortization of purchased intangible
assets;
- additional operating losses and expenses of acquired businesses; and
- impairment of relationships with existing employees, customers and
business partners.
We do not currently have plans, nor have we entered into negotiations, to
acquire any businesses.
THE LOSS OF OUR KEY ENGINEERING OR MANAGEMENT EMPLOYEES WOULD HARM OUR
BUSINESS
We depend on the continued employment of our key engineering and
management employees. We do not have long-term employment agreements with our
key personnel, and we do not have "key person" life insurance policies. If any
of our key engineering or management employees leave our company, our business
may be adversely affected.
IF WE FAIL TO ESTABLISH, MAINTAIN, OR EXPAND OUR STRATEGIC RELATIONSHIPS FOR THE
INTEGRATION OF OUR TECHNOLOGY WITH THE SERVICES AND PRODUCTS OF THIRD PARTIES,
THE GROWTH OF OUR BUSINESS MAY CEASE OR DECLINE
Currently, we have relationships with Adobe Systems Incorporated,
Autodesk, Inc., Alias Wavefront (a division of Silicon Graphics Limited),
Curious Labs Incorporated, and other makers of leading content creation software
products under which we provide the right and ability for their products to
output content in our format. Customers who deploy content created in the
Viewpoint format with these software products are required to purchase a license
from Viewpoint in order to publish the content. We also have a relationship with
AOL under which the Viewpoint Media Player is distributed along with AOL's
internet access software product. If Adobe, Autodesk, Caligari, Curious Labs, or
AOL do not continue to integrate and support our technology correctly, or if we
are unable to enter into successful new strategic relationships with leading
software providers that can integrate and support our graphics technology, our
revenues and growth may suffer because professionals will less likely offer
services involving the creation of content in the Viewpoint format to their
customers.
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 of 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.
FORWARD-LOOKING STATEMENTS
In addition to historical information, this prospectus contains
forward-looking statements that involve risks and uncertainties that could cause
actual results to differ materially from the results implied by the
forward-looking statements. Factors that might cause or contribute to such
differences include, but are not limited to, those discussed in the section
entitled "Risk Factors." You should carefully review the risks described in
other documents we file from time to time with the Securities and Exchange
Commission, including any future reports to be filed in 2003 and our Annual
Report on Form 10-K for 2002. When used in this prospectus, the words "expects,"
"anticipates," "intends," "plans," "believes," "seeks," "targets," "estimates,"
and similar expressions are generally intended to identify forward-looking
statements. You should not place undue reliance on these forward-looking
statements, which speak only as of the date of this prospectus. We undertake no
obligation to publicly release any revisions to the forward-looking statements
or reflect events or circumstances after the date of this prospectus.
OTHER INFORMATION
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 stockholder is 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.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of common
stock offered by the selling stockholders under this prospectus.
PRIVATE PLACEMENT OF COMMON STOCK
On November 12, 2003, we entered into a stock purchase agreement with the
selling stockholder, pursuant to which we issued to the selling stockholder
3,125,000 shares of our common stock in return for an aggregate consideration of
$2.5 million.
In connection with the stock purchase agreement, we entered into a
registration rights agreement with the selling stockholder. The registration
rights agreement requires us to (i) file a registration statement covering the
resale of all of the shares of common stock issued to the selling stockholders
no later than December 29, 2003 and (ii) have the registration statement
declared effective no later than
March 12, 2004. Failure to meet these deadlines subjects us to a cash penalty
based upon the number of days in which we are in default. We have agreed to pay
all registration expenses in connection with such registration (other than
underwriting discounts and commissions), to reimburse the selling stockholders
for up to $5,000 in legal expenses and to customary indemnification and
contribution protections for the selling stockholder under the federal
securities laws and otherwise.
SELLING STOCKHOLDER
We are registering the shares of common stock in order to permit the
selling stockholder to offer the shares for resale from time to time.
Federal Partners, L.P. is the selling stockholder. The Clark Estates, Inc.
provides management and administrative services to Federal Partners and has the
sole power to vote or to direct the vote and to dispose of or direct the
disposition of all shares held by Federal Partners. Stephen M. Duff, is the
Chief Investment Officer of The Clark Estates, Inc. and the treasurer of the
general partner of Federal Partners, L.P.. Mr. Duff was elected as a member of
the board of directors of the Registrant as of May 5, 2003.
The selling stockholder acquired 4.95% subordinated notes in the amount of
$3,050,000 and 3,150,002 shares of our common stock in a private placement on
March 26, 2003. Except for the selling stockholder's acquisition of the notes
and shares of common stock on March 26, 2003 and the selling stockholder's
acquisition of common stock described under the heading "Private Placement of
Common Stock", the selling stockholder has not had any other material
relationship with us within the past three years.
The table below sets forth other information regarding the beneficial
ownership of common stock by the selling stockholder. The second column lists
the number of shares of common stock beneficially owned by the selling
stockholder as of December 23, 2003. The third column lists the shares of common
stock being offered by this prospectus by the selling stockholder. The selling
stockholder may sell all, some or none of its shares in this offering. See "Plan
of Distribution."
Other than the ownership of 3,703,402 shares of our common stock, the
selling stockholder beneficially owned no other shares of Viewpoint's common
stock as of November 11, 2003.
NUMBER SHARES MAXIMUM NUMBER OF
BENEFICIALLY SHARES TO BE SOLD NUMBER OF SHARES
OWNED BEFORE PURSUANT TO THIS OWNED AFTER
NAME OFFERING PROSPECTUS OFFERING
Federal Partners,
L.P.(1) 6,828,402 3,125,000 3,703,402
(1) Federal Partners, L.P. is a Delaware limited partnership. Kevin S. Moore
and Stephen M. Duff have voting/investment control over Federal Partners.
The selling stockholder purchased the shares being offered under this
prospectus in the ordinary course of business and at the time of the purchase,
the selling stockholder had no agreements or understandings, directly or
indirectly, with any person to distribute these shares.
PLAN OF DISTRIBUTION
We are registering the shares of common stock issued to the selling
stockholder to permit the resale of these shares of common stock by the holders
of the common stock from time to time after the
date of this prospectus. Other than as set forth in the following paragraph, we
will bear all reasonable fees and expenses incident to our obligation to
register the shares of common stock.
The selling stockholder may sell all or a portion of the common stock
offered under this prospectus from time to time directly or through one or more
underwriters, broker-dealers or agents. If the common stock is sold through
underwriters or broker-dealers, the selling stockholder will be responsible for
underwriting discounts or commissions or agent's commissions. The common stock
may be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of the sale, at varying prices determined at the time of
sale, or at negotiated prices. These sales may be effected in transactions,
which may involve crosses or block transactions:
- on any national securities exchange or quotation service on which
the securities may be listed or quoted at the time of sale;
- in the over-the-counter market;
- in transactions otherwise than on these exchanges or systems or in
the over-the-counter market;
- through the writing of options, whether such options are listed on
an options exchange or otherwise; or
- through the settlement of short sales.
If the selling stockholder effects such transactions by selling shares of
common stock to or through underwriters, broker-dealers or agents, the
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholder or
commissions from purchasers of the shares of common stock for whom they may act
as agent or to whom they may sell as principal. These discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved. In connection
with sales of the common stock or otherwise, the selling stockholder may enter
into hedging transactions with broker-dealers, which may in turn engage in short
sales of the common stock in the course of hedging in positions they assume. The
selling stockholder may also sell shares of common stock short and deliver
shares of common stock covered by this prospectus to close out short positions.
The selling stockholder may also loan or pledge shares of common stock to
broker-dealers that in turn may sell such shares.
The selling stockholder may pledge or grant a security interest in some or
all of the shares of common stock owned by them and, if it defaults in the
performance of its secured obligations, the pledgees or secured parties may
offer and sell the shares of common stock from time to time under this
prospectus or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933, as amended, amending, if
necessary, the list of selling stockholders to include the pledgee, transferee
or other successors in interest as selling stockholders under this prospectus.
The selling stockholder also may transfer and donate the shares of common stock
in other circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
The selling stockholder and any broker-dealer participating in the
distribution of the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commission paid, or any
discounts or concessions allowed to any such broker-dealer may be deemed
underwriting commissions or discounts under the Securities Act. At the time a
particular offering of the shares of common stock is made, a prospectus
supplement, if required, will be distributed which will set forth the aggregate
amount of shares of common stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling
stockholder and any discounts, commissions or concessions allowed or reallowed
or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may
be sold in such states only through registered or licensed brokers or dealers.
There can be no assurance that any selling stockholder will sell any or
all of the shares of common stock registered pursuant to the registration
statement, of which this prospectus forms a part.
The selling stockholder and any other person participating in such
distribution will be subject to applicable provisions of the Securities Exchange
Act, as amended and the rules and regulations under that statute, including,
without limitation, Regulation M. This may limit the timing of purchases and
sales of any of the shares of common stock by the selling stockholder and any
other participating person. Regulation M may also restrict the ability of any
person engaged in the distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common stock. All of the
foregoing may affect the marketability of the shares of common stock and the
ability of any person or entity to engage in market-making activities with
respect to the shares of common stock.
We will indemnify the selling stockholder against liabilities, including
some liabilities under the Securities Act, in accordance with the registration
rights agreements. We may be indemnified by the selling stockholder against
civil liabilities, including liabilities under the Securities Act, that may
arise from any written information they furnish to us specifically for use in
this prospectus, in accordance with the related registration rights agreements.
Once sold under the registration statement of which this prospectus forms
a part, the shares of common stock will be freely tradable in the hands of
persons other than our affiliates.
Each share of common stock is sold together with certain stock purchase
rights. These rights are described in the Amended and Restated Rights Agreement,
dated as of June 24, 1999, filed as Exhibit 4 to our registration statement
filed on Form 8-A (File No. 000-27168), which we filed with the SEC on October
29, 1999, as amended by Amendment 1 to the Amended and Restated Rights
Agreement, dated as of November 28, 2000, filed as Exhibit 99.5 to our
registration statement filed on Form 8-A, which we filed with the SEC on
December 5, 2000. See "Incorporation of Documents by Reference" below.
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be passed
on for us by Brian J. O'Donoghue, General Counsel of Viewpoint Corporation, New
York, New York.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K/A of Viewpoint Corporation for the
year ended December 31, 2002 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.
INCORPORATION OF 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/A for the year ended December 31, 2002;
(2) our Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, 2003, June 30, 2003, and September 30, 2003;
(3) our Current Reports on Form 8-K dated January 2, 2003, March 25, 2003,
March 26, 2003, May 14, 2003, August 6, 2003, November 12, 2003, and
November 13, 2003; 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 that 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 under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 will automatically update and supersede 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, NW, Washington,
DC 20549. 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 http://www.sec.gov. You may also read and copy our annual and quarterly
reports from our website at http://www.viewpoint.com.
Our common stock is quoted on the Nasdaq National Market. Reports, proxy
statements and other information concerning Viewpoint 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
New York, New York 10018
(212) 201-0800
Attn: Brian J. O'Donoghue, Corporate Secretary
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 under 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
Viewpoint. 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.
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, all of which are payable by
Viewpoint Corporation (the "Registrant"), in connection with the sale of the
common stock being offered by the selling stockholders.
SEC registration fee $ 179.50
Legal fees and expenses $ 1,000
Accounting fees and expenses $ 7,500
Printing expenses $ 5,000
Miscellaneous $ 1,000
Total $14,679.50
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.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
4.1 Stock Purchase Agreement, dated as of November 12, 2003, by and
between Viewpoint Corporation and Federal Partners, L.P.,
previously filed as Exhibit 10.1 to Form 8-K filed by Viewpoint
Corporation on November 13, 2003.
4.2 Registration Rights Agreement, dated as of November 12, 2003, by
and between Viewpoint Corporation and Federal Partners, L.P.,
previously filed as Exhibit 10.2 to Form 8-K filed by Viewpoint
Corporation on November 13, 2003.
5.1 Opinion of Brian J. O'Donoghue with respect to the
validity of the securities being offered.
23.1 Consent of Brian J. O'Donoghue (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent
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 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 this offering.
(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 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 provisions described under Item 15, 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.
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 December 23, 2003.
VIEWPOINT CORPORATION
By: /s/ Jerry S. Amato
----------------------------
Name: Jerry S. Amato
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 Jerry S. Amato and William H. Mitchell, or either 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/ Jerry S. Amato Director, President and December 23, 2003
----------------------- Chief Executive Officer
Jerry S. Amato
/s/ William H. Mitchell Senior Vice President and December 29, 2003
----------------------- Chief Financial Officer
William H. Mitchell
/s/ Thomas Bennett Director December 24, 2003
-----------------------
Thomas Bennett
/s/ James E. Crabbe Director December 23, 2003
-----------------------
James E. Crabbe
Director
-----------------------
Stephen M. Duff
/s/ Samuel H. Jones, Jr. Director December 23, 2003
-----------------------
Samuel H. Jones, Jr.
/s/ Robert E. Rice Executive Chairman of the December 23, 2003
----------------------- Board of Directors
Robert E. Rice
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.1 Stock Purchase Agreement, dated as of November 12, 2003, by and
between Viewpoint Corporation and Federal Partners, L.P.,
previously filed as Exhibit 10.1 to Form 8-K filed by Viewpoint
Corporation on November 13, 2003.
4.2 Registration Rights Agreement, dated as of November 12, 2003, by
and between Viewpoint Corporation and Federal Partners, L.P.,
previously filed as Exhibit 10.2 to Form 8-K filed by Viewpoint
Corporation on November 13, 2003.
5.1 Opinion of Brian J. O'Donoghue with respect to the
validity of the securities being offered.
23.1 Consent of Brian J. O'Donoghue (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24 Power of Attorney (included on the signature page of this
registration statement).