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As filed with the Securities and Exchange Commission on June 27, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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AVISTAR COMMUNICATIONS CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware 88-0383089
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(State of incorporation) (I.R.S. Employer Identification Number)
555 Twin Dolphin Drive, Suite 360
Redwood Shores, California 94065
(Address, including zip code of Registrant's principal executive offices)
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2000 DIRECTOR OPTION PLAN
(Full title of the plan)
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Gerald J. Burnett
Chairman of the Board, President and Chief Executive Officer
Avistar Communications Corporation
555 Twin Dolphin Drive, Suite 360
Redwood Shores, California 94065
(650) 610-2900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
ROBERT P. LATTA, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94306
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Securities to be Offering Price Per Aggregate Offering Amount of
Registered Amount to be Registered Share(2) Price Registration Fee
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Common Stock, $0.001 par value, to be
issued under the 2000 Director Option
Plan(1)................................ 350,000 shares $1.64 $574,000.00 $143.50
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 2000 Director
Option Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction affected without the receipt of consideration
that increases the number of the Registrant's outstanding shares of Common
Stock.
(2) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee based upon the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
June 22, 2001.
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The contents of the Registrant's Form S-8 Registration Statement
(Registration Statement No. 333-43944) filed with the Commission on August 16,
2000 are incorporated herein by reference.
PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION BY REFERENCE
The following documents, which have been filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 are incorporated by reference herein and shall be deemed to be a part
hereof:
(a) Annual report on Form 10-K for the fiscal year ended December 31, 2000
filed on March 9, 2001.
(b) Quarterly report on Form 10-Q for the quarter ended March 31, 2001
filed on April 26, 2001.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Mr. Robert P. Latta, a director of the Company, is also a partner of the
law firm Wilson Sonsini Goodrich & Rosati, a professional corporation ("WSGR").
Mr. Latta and WSGR have represented the Company and its predecessors since 1994
as corporate counsel.
ITEM 8. EXHIBITS
Exhibit
Number Documents
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4.1 2000 Director Option Plan, as amended
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney (see page 4)
ITEM 9. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be
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deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the Delaware General Corporation Law, the
Certificate of Incorporation of the registrant, the Bylaws of the registrant,
indemnification agreements entered into between the registrant and its officers
and directors or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant in successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Avistar Communications Corporation, a corporation organized and existing under
the laws of the State of Delaware, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Redwood Shores, State of
California, on this 27thth day of June, 2001.
AVISTAR COMMUNICATIONS CORPORATION
By: /s/ GERALD J. BURNETT
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Gerald J. Burnett
Chairman of the Board, President and Chief
Executive Officer (Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gerald J. Burnett and William L. Campbell
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8 and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ GERALD J. BURNETT Chairman of the Board, President and Chief Executive June 27, 2001
- ---------------------------------- Officer (Principal Executive Officer
Gerald J. Burnett
/s/ WILLIAM L. CAMPBELL Vice Chairman of the Board and Corporate Secretary June 27, 2001
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William L. Campbell
/s/ ROBERT HABIG Chief Financial Officer (Principal Financial and June 27, 2001
- ---------------------------------- Accounting Officer)
Robert Habig
/s/ R. STEPHEN HEINRICHS Director June 27, 2001
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R. Stephen Heinrichs
/s/ ROBERT P. LATTA Director June 27, 2001
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Robert P. Latta
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AVISTAR COMMUNICATIONS CORPORATION
REGISTRATION STATEMENT ON FORM S-8
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INDEX TO EXHIBITS
Exhibit
Number Documents
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4.1 2000 Director Option Plan, as amended
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney (see page 4)