-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, C62eI3mRC4zvYwgWI2TRjWFXI3l/GAty3GmkJUb/kKDcf7KajzlsBzJp/EAlQs9a eJKN+PFXzv0QbYLI3Ra1+Q== 0001032210-98-000394.txt : 19980422 0001032210-98-000394.hdr.sgml : 19980422 ACCESSION NUMBER: 0001032210-98-000394 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980421 EFFECTIVENESS DATE: 19980421 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: VISIO CORP CENTRAL INDEX KEY: 0000946665 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 911448389 STATE OF INCORPORATION: WA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-50619 FILM NUMBER: 98598146 BUSINESS ADDRESS: STREET 1: 520 PIKE ST STREET 2: STE 1800 CITY: SEATTLE STATE: WA ZIP: 98101 BUSINESS PHONE: 2065214500 MAIL ADDRESS: STREET 1: 520 PIKE ST STREET 2: SUITE 1800 CITY: SEATTLE STATE: WA ZIP: 98101 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998 REGISTRATION NO. 333-________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- VISIO CORPORATION (Exact name of Registrant as specified in its charter) WASHINGTON 91-1448389 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
520 Pike Street, Suite 1800 SEATTLE, WASHINGTON 98101-4001 (Address of principal executive offices, including zip code) VISIO CORPORATION 1995 LONG-TERM INCENTIVE COMPENSATION PLAN (Full title of the plan) JEREMY A. JAECH PRESIDENT AND CHIEF EXECUTIVE OFFICER VISIO CORPORATION 520 PIKE STREET, SUITE 1800 SEATTLE, WASHINGTON 98101-4001 (206) 521-4500 (Name, address and telephone number, including area code, of agent for service) ---------------------- COPIES TO: EVELYN CRUZ SROUFE PERKINS COIE LLP 1201 THIRD AVENUE, 40TH FLOOR SEATTLE, WASHINGTON 98101-3099 (206) 583-8888 ---------------------- CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES NUMBER OF SHARES TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED TO BE REGISTERED(1) OFFERING PRICE PER SHARE(2) AGGREGATE OFFERING PRICE(2) REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value 4,940,000 $41.03 $202,688,200 $59,793.02 per share: - ---------------------------------------------------------------------------------------------------------------------------------
(1) Together with an indeterminate number of additional shares that may be necessary to adjust the number of shares reserved for issuance under the Visio Corporation 1995 Long-Term Incentive Compensation Plan, as amended, as the result of any future stock split, stock dividend or similar adjustment of the outstanding Common Stock of the Registrant. (2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the amount of registration fee. The price per share is estimated to be $41.03 based on the average of the high $42.00 and low $40.06 sales prices for the Common Stock in the over-the-counter market on April 14, 1998 as reported on the Nasdaq National Market. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents are hereby incorporated by reference in this Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1997 (File No. 0-26772); (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the year covered by the Annual Report referred to in (a) above; and (c) The description of the Registrant's Common Stock contained in the Registration Statement on Form 8-A (File 11 No. 0-26772) filed with the Securities and Exchange Commission (the "Commission") on September 15, 1995 under Section 12(g) of the Exchange Act. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment, which indicates that the securities offered hereby have been sold or which deregisters the securities covered hereby then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof commencing on the respective dates on which such documents are filed. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant has entered into an indemnification agreement with each of its executive officers and directors wherein the Registrant agrees to hold harmless and indemnify the officer or director to the fullest extent permitted by Washington law. The Registrant agrees to indemnify the officer or director against any and all losses, claims, damages, liabilities or expenses incurred in connection with any actual, pending or threatened action, suit, claim or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, in which the officer or director is, was or becomes involved by reason of the fact that the officer or director is or was a director, officer, employee or agent of the Registrant or that, being or having been such a director, officer, employee or agent, the officer or director is or was serving at the registrant's request as a director, officer, employee, trustee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action (or inaction) by the officer or director in an official capacity or in any other capacity, unless such action, suit, claim or proceeding was not authorized by the Registrant's II-1 board of directors. No indemnity pursuant to the indemnification agreement shall be provided by the Registrant: (i) on account of any suit in which a final, unappealable judgment is rendered against the officer or director for an accounting of profits made from the purchase or sale by the officer or director of securities of the Registrant in violation of the provisions of Section 16(b) of the Exchange Act; (ii) for damages that have been paid directly to the officer or director by an insurance carrier under a policy of directors' and officers' liability insurance maintained by the Registrant; (iii) on account of an officer's or director's conduct that is finally adjudged to have been intentional misconduct, or a knowing violation of law or RCW 23B.08.310 or any successor provision of the statute, or a transaction from which the officer or director derived benefit in money, property or services to which the officer or director is not legally entitled; or (iv) if a final decision by a court having jurisdiction in the matter determines such indemnification is unlawful. Sections 23B.08.500 through 23B.08.600 of the Washington Business Corporation Act authorize a court to award, or a corporation's board of directors to grant, indemnification to directors and officers on terms sufficiently broad to permit indemnification under certain circumstances for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"). Section 10 of the Registrant's Restated Bylaws provides that the Registrant shall indemnify its directors and officers to the maximum extent permitted by applicable law, and that the Registrant may indemnify its employees or agents to the fullest extent permitted by applicable law, or to such lesser extent as the Registrant's board of directors may determine. Section 23B.08.320 of the Washington Business Corporation Act authorizes a corporation to limit a director's personal liability to the corporation or its shareholders for monetary damages for conduct as a director, except in circumstances involving intentional misconduct, a knowing violation of law, unlawful distributions, or any transaction from which the director will personally receive a benefit in money, property or services to which the director is not legally entitled. Article 11 of the Registrant's Fourth Restated Articles of Incorporation contains provisions implementing, to the fullest extent permitted by Washington law, such limitations on a director's liability to the Registrant and its shareholders. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being registered 23.1 Consent of Ernst & Young LLP 23.2 Consent of Perkins Coie LLP (included in the opinion filed as Exhibit 5.1) 24.1 Power of Attorney (see signature page) 99.1 Visio Corporation 1995 Long-Term Incentive Compensation Plan, as amended (incorporated by reference to Exhibit 10.2 of the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1997)
II-2 ITEM 9. UNDERTAKINGS A. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefits plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of II-3 the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Seattle, State of Washington, on April 20, 1998. VISIO CORPORATION By: /s/ Jeremy A. Jaech ------------------------------------- Jeremy A. Jaech President and Chief Executive Officer POWER OF ATTORNEY EACH PERSON WHOSE INDIVIDUAL SIGNATURE APPEARS BELOW HEREBY AUTHORIZES JEREMY A. JAECH AND THEODORE C. JOHNSON AND EACH OF THEM AS ATTORNEYS-IN-FACT, WITH FULL POWER OF SUBSTITUTION, TO EXECUTE IN THE NAME AND ON BEHALF OF SUCH PERSON, INDIVIDUALLY AND IN EACH CAPACITY STATED BELOW, AND TO FILE, ANY AND ALL AMENDMENTS TO THIS REGISTRATION STATEMENT, INCLUDING ANY AND ALL POST-EFFECTIVE AMENDMENTS WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY REGULATORY AUTHORITY. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on April 20, 1998.
SIGNATURE TITLE --------- ----- /s/ Jeremy A. Jaech Chairman of the Board, President and Chief - ----------------------------- Executive Officer (Principal Executive Officer) Jeremy A. Jaech /s/ Steve M. Gordon Chief Financial Officer and Senior Vice - ----------------------------- President, Finance and Operations (Principal Steve M. Gordon Financial and Accounting Officer) /s/ Theodore C. Johnson Executive Vice President, Chief Technology - ----------------------------- and Director Theodore C. Johnson /s/ Tom A. Alberg Director - ----------------------------- Tom A. Alberg /s/ Thomas H. Byers Director - ----------------------------- Thomas H. Byers /s/ John R. Johnston Director - ----------------------------- John R. Johnston /s/ Douglas Mackenzie Director - ----------------------------- Douglas Mackenzie /s/ Scott Oki Director - ----------------------------- Scott Oki
II-5 INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY NUMER DESCRIPTION NUMBERED PAGE - ------- ----------- ------------- 5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being registered 23.1 Consent of Ernst & Young LLP 23.2 Consent of Perkins Coie LLP (included in the opinion filed as Exhibit 5.1) 24.1 Power of Attorney (see signature page) 99.1 Visio Corporation 1995 Long-Term Incentive Compensation Plan, as amended (incorporated by reference to Exhibit 10.2 of the Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1997)
EX-5.1 2 OPINION OF PERKINS COIE LLP EXHIBIT 5.1 [LETTERHEAD OF PERKINS COIE LLP] April 20, 1998 Visio Corporation 520 Pike Street, Suite 1800 Seattle, Washington 98101-4001 RE: REGISTRATION ON FORM S-8 Gentlemen and Ladies: We have acted as counsel to Visio Corporation (the "Company") in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") which is being filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), with respect to 4,940,000 shares of common stock, $.01 par value, of the Company (the "Shares"). The Shares may be issued pursuant to the Visio Corporation 1995 Long-Term Incentive Compensation Plan, as amended (the "Plan"). We have examined the Registration Statement and such documents and records of the Company and other documents as we have deemed necessary for the purpose of this opinion. In giving this opinion, we are assuming the authenticity of all instruments presented to us as originals, the conformity with originals of all instruments presented to us as copies and the genuineness of all signatures. Based upon and subject to the foregoing, we are of the opinion that the Shares that may be issued pursuant to the Plan have been duly authorized and that, upon the due execution by the Company and the registration by its registrar of the Shares, the sale thereof by the Company in accordance with the terms of the Plan, and the receipt of the consideration therefor in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, Perkins Coie LLP EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Visio Corporation 1995 Long-Term Incentive Compensation Plan, as amended, of our report dated October 24, 1997, with respect to the consolidated financial statements and schedule of Visio Corporation included in the Annual Report on Form 10-K of Visio Corporation for the fiscal year ended September 30, 1997, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Seattle, Washington April 21, 1998 -----END PRIVACY-ENHANCED MESSAGE-----