As filed with the Securities and Exchange Commission on July 29, 2003
Registration No. 333-105127
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2 TO FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIEWPOINT CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 7373 95-4102687
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
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)
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.
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. [ ]
CALCULATION OF REGISTRATION FEE
AMOUNT PROPOSED MAXIMUM PROPOSED AMOUNT OF
TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION FEE
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (2)
-------------------------------------------------- ---------- ---------------- ----------------- ----------------
Common Stock, par value
$.001 per share..................... 3,614,756 $0.76 2,747,214.56 $222.25
----------------
(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
May 8, 2003.
(2) Previously paid on May 9, 2003.
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 JULY 29, 2003
VIEWPOINT CORPORATION
3,614,756 SHARES OF COMMON STOCK
The selling stockholders identified on page 7 of this prospectus are
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 July 25, 2003, the last reported closing price of the common stock
on the Nasdaq National Market was $1.11 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 _________________, 2003.
TABLE OF CONTENTS
PAGE
----
RISK FACTORS.................................................................... 1
FORWARD-LOOKING STATEMENTS...................................................... 5
OTHER INFORMATION............................................................... 5
USE OF PROCEEDS................................................................. 5
PRIVATE PLACEMENT OF SUBORDINATED NOTES AND COMMON STOCK........................ 6
SELLING STOCKHOLDERS............................................................ 7
PLAN OF DISTRIBUTION............................................................ 8
LEGAL MATTERS................................................................... 9
EXPERTS......................................................................... 9
INCORPORATION OF DOCUMENTS BY REFERENCE......................................... 9
WHERE YOU CAN FIND MORE INFORMATION............................................. 10
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.
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.
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.
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 March 20, 2003 that our
common stock may be delisted from Nasdaq for failure to maintain a minimum bid
price of $1.00. On June 9, 2003, Nasdaq notified us that our common stock
regained compliance with the minimum bid price rule. The closing price of our
common stock has exceeded $1.00 since we regained compliance. However, there can
be no assurance that our stock price will continue to trade over $1.00. If we
are unable to maintain 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 2003. 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
2
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
3
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
4
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.
AOL ACCOUNTED FOR 51% OF OUR REVENUES IN 2002 BUT MAY NOT GENERATE SIMILAR
AMOUNTS OF REVENUE IN SUBSEQUENT YEARS
Our licensing and service arrangements with AOL accounted for 51% of
our revenue in 2002. However, AOL is not contractually obligated to renew its
licenses with us or to retain our services for similar services fees in the
future. Any cancellation, deferral or significant reduction in our work
performed for AOL would have a material adverse effect on our business,
financial condition and results of operations.
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 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
5
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 SUBORDINATED NOTES AND COMMON STOCK
On March 25, 2003, we entered into a securities purchase agreement with
the selling stockholders, pursuant to which we issued to them $3.5 million
aggregate principal amount of our 4.95% subordinated notes due March 31, 2006
and 3,614,756 shares of our common stock in return for an aggregate
consideration of $3.5 million.
In connection with the securities purchase agreement, we entered into a
registration rights agreement with the selling stockholders. The registration
rights agreement required 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 May 9, 2003 and (ii) have the registration statement declared
effective no later than July 23, 2003. 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 stockholders under
the federal securities laws and otherwise.
Pursuant to the terms of the securities purchase agreement, we have
issued subordinated notes to the selling stockholders in an aggregate principal
amount of $3.5 million. Unless otherwise redeemed, the terms of each note
require us to repay the principal amount plus any accrued but unpaid interest
thereon on March 31, 2006. Interest on each note accrues at a rate of 4.95% per
annum and is payable quarterly. We have the right to redeem all or a portion of
the notes at any time upon not less than 15 nor more than 30 days' notice, at
100% of the principal amount plus accrued and unpaid interest thereon to the
date of redemption. Events of default under the notes include:
- the failure to timely pay amounts due under the notes,
- the occurrence of a material default in the performance of the
securities purchase agreement or the registration rights
agreement,
- the failure to pay at final maturity or the acceleration of
the final stated maturity of our other indebtedness,
- our filing for bankruptcy or the filing for bankruptcy of one
of our significant subsidiaries and
- the entry of a judgment against us for the payment of money
aggregating in excess of $1 million.
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Pursuant to the terms of the securities purchase agreement, we have
agreed not to take on any additional indebtedness other than indebtedness that
is permitted under these notes or the notes issued or to be issued in the future
to the investors described in the next succeeding paragraph, pursuant to the
terms of the transaction documents described below, other than indebtedness that
is unsecured, subordinate or equal in right of payment to the notes, that
provides for an interest that is no greater than market rate interests and that
does not in the aggregate exceed the sum of $1.5 million.
On March 25, 2003, in a separate private placement, we entered into
redemption, amendment and exchange agreements with three institutional investors
with whom we had completed a private placement of convertible notes and warrants
on December 31, 2002. Pursuant to those agreements, we redeemed an aggregate of
$3.3 million principal amount of outstanding convertible notes, exchanged an
aggregate of $1 million principal amount of the outstanding convertible notes
for shares of our common stock at $0.74 per share, and exchanged the remaining
$2.7 million principal amount of outstanding convertible notes for $2.7 million
principal amount of new convertible notes. In connection with that transaction,
on April 11, 2003 and June 9, 2003, we filed amendments to the registration
statement filed on January 30, 2003, which has since been declared effective.
SELLING STOCKHOLDERS
We are registering the shares of common stock in order to permit the
selling stockholders to offer the shares for resale from time to time. Stephen
M. Duff, the treasurer of the general partner of Federal Partners P, L.P., was
elected as a member of our board of directors as of May 5, 2003. Except for the
foregoing and the ownership of the common stock and the subordinated notes
described below, the selling stockholders have not had any other material
relationship with us within the past three years.
The table below lists the selling stockholders and other information
regarding the beneficial ownership of the common stock by each of the selling
stockholders. The second column lists the number of shares of common stock
beneficially owned by each selling stockholder, based on its ownership of the
shares of common stock issued, as of May 9, 2003.
The third column lists the shares of common stock being offered by this
prospectus by the selling stockholders. The selling stockholders may sell all,
some or none of their shares in this offering. See "Plan of Distribution."
Other than the ownership of 176,300 shares of our common stock by
Baruch Halpern and 6,500 shares by Shana Halpern, none of the selling
stockholders beneficially owned any other shares of Viewpoint's common stock as
of March 24, 2003.
NUMBER SHARES MAXIMUM NUMBER OF SHARES TO
BENEFICIALLY BE SOLD PURSUANT TO THIS NUMBER OF SHARES OWNED
OWNED BEFORE OFFERING PROSPECTUS AFTER OFFERING
--------------------- --------------------------- ----------------------
NAME
Federal Partners P, L.P. 3,150,002 3,150,002 0
Baruch Halpern and Shana
Halpern 440,997 258,197 182,800
CRCK, L.L.C. 206,557 206,557 0
-------------
Total 3,797,556 3,614,756 182,800
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(1) Federal Partners is a Delaware limited partnership. Kevin S. Moore and
Stephen M. Duff have voting/investment control over Federal Partners.
(2) Baruch Halpern and Shana Halpern are joint tenants with right of
survivorship.
(3) CRCK, L.L.C. is a Delaware limited liability company. Paul Tanico and
Ellen Adams have voting/investment control over CRCK, L.L.C.
Each of the selling stockholders purchased the shares being offered
under this prospectus in the ordinary course of business and at the time of the
purchase, the selling stockholders 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
stockholders 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 stockholders may sell all or a portion of the common stock
beneficially owned by them and 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
stockholders 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 stockholders effect 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 stockholders 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 stockholders 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 stockholders 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 stockholders may also loan or pledge shares of common stock to
broker-dealers that in turn may sell such shares.
8
The selling stockholders may pledge or grant a security interest in
some or all of the shares of common stock owned by them and, if they default in
the performance of their 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 stockholders 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 stockholders 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
stockholders 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 stockholders 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 stockholders 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 stockholders against liabilities,
including some liabilities under the Securities Act, in accordance with the
registration rights agreements. We may be indemnified by the selling
stockholders 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.
9
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be
passed on 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, 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 Report on Form 10-Q for the quarterly period
ended March 31, 2003;
(3) our Current Reports on Form 8-K dated January 2, 2003, March
25, 2003 and March 26, 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
10
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.
11
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....................................... $222.25
Legal fees and expenses.................................... 25,000
Accounting fees and expenses............................... 9,000
Printing expenses.......................................... 5,235
Miscellaneous.............................................. 1,000
Total............................................. $ 40,457.25
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.
II-1
ITEM 16. EXHIBITS
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.1 Securities Purchase Agreement, dated as of March 25, 2003, by
and among Viewpoint Corporation and the Purchasers named
therein, previously filed as Exhibit 10.1 to Form 8-K filed by
Viewpoint Corporation on March 26, 2003.
4.2 Form of 4.95% Subordinated Note of Viewpoint Corporation,
previously filed as Exhibit 10.2 to Form 8-K filed by
Viewpoint Corporation on March 26, 2003.
4.3 Registration Rights Agreement, dated as March 25, 2003, by and
among Viewpoint Corporation and the Purchasers named therein,
previously filed as Exhibit 10.3 to Form 8-K filed by
Viewpoint Corporation on March 26, 2003.
5.1 Opinion of Milbank, Tweed, Hadley & McCloy LLP with respect to
the validity of the securities being offered, previously filed
as Exhibit 5.1 to Form S-3 filed by Viewpoint Corporation on
May 9, 2003.
23.1 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in
Exhibit 5.1), previously filed as Exhibit 5.1 to Form S-3
filed by Viewpoint Corporation on May 9, 2003.
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
II-2
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.
II-3
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 July 29, 2003.
VIEWPOINT CORPORATION
By: /s/ Robert E. Rice
----------------------------
Name: Robert E. Rice
Title: President and Chief
Executive Officer
II-4
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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert E. Rice Chairman, President and Chief July 29, 2003
-------------------------- Executive Officer
Robert E. Rice
/s/ Anthony L. Pane Senior Vice President, Chief July 29, 2003
-------------------------- Accounting Officer and Chief Financial
Anthony L. Pane Officer
/s/ Thomas Bennett* Director July 29, 2003
--------------------------
Thomas Bennett
/s/ James E. Crabbe* Director July 29, 2003
--------------------------
James E. Crabbe
/s/ Stephen M. Duff* Director July 29, 2003
--------------------------
Stephen M. Duff
/s/ Samuel H. Jones, Jr.* Director July 29, 2003
--------------------------
Samuel H. Jones, Jr.
/s/ Lennert J. Leader* Director July 29, 2003
--------------------------
Lennert J. Leader
*By: /s/ Robert E. Rice
---------------------
Attorney-in-Fact
II-5
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.1 Securities Purchase Agreement, dated as of March 25, 2003, by
and among Viewpoint Corporation and the Purchasers named
therein, previously filed as Exhibit 10.1 to Form 8-K filed by
Viewpoint Corporation on March 26, 2003.
4.2 Form of 4.95% Subordinated Note of Viewpoint Corporation,
previously filed as Exhibit 10.2 to Form 8-K filed by
Viewpoint Corporation on March 26, 2003.
4.3 Registration Rights Agreement, dated as March 25, 2003, by and
among Viewpoint Corporation and the Purchasers named therein,
previously filed as Exhibit 10.3 to Form 8-K filed by
Viewpoint Corporation on March 26, 2003.
5.1 Opinion of Milbank, Tweed, Hadley & McCloy LLP with respect to
the validity of the securities being offered, previously
filed as Exhibit 5.1 to Form S-3 filed by Viewpoint
Corporation May 9, 2003.
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 the
registration statement).