As filed with the Securities and Exchange Commission on October 27, 2000
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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MICROMUSE INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3288385
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
139 Townsend Street
Mezzanine Floor
San Francisco, CA 94107
(Address of principal executive offices) (Zip Code)
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NETOPS CORPORATION 1997 LONG-TERM INCENTIVE PLAN (As Assumed by Registrant)
(Full title of the Plans)
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Gregory Q. Brown
Chief Executive Officer and Chairman of the Board
Micromuse Inc.
139 Townsend Street
Mezzanine Floor
San Francisco, CA 94107
(Name and address of agent for service)
(415) 538-9090
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Title of Maximum Proposed
Securities Amount Offering Maximum Amount of
to be to be Price Aggregate Registration
Registered Registered(1) per Share(2) Offering Price(2) Fee
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<S> <C> <C> <C> <C>
NetOps Corporation 1997
Long-Term Incentive Plan
Common Stock, $0.001 par value 1,715 shares $232.67 $399,029.05 $105.34
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</TABLE>
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(1) This Registration Statement shall also cover any additional shares of the
Registrant's Common Stock which become issuable under the NetOps
Corporation 1997 Long-Term Incentive Plan with respect to the securities
registered hereunder by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price of the outstanding options under the assumed Plan.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
Micromuse Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1999 filed with the Commission December 28, 1999
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) The Registrant's Current Reports on Form 8-K filed with the
Commission on February 25, 2000, July 7, 2000 and August 2, 2000 (as
amended on Form 8-K/A filed with the Commission on October 2, 2000
and further amended on Form 8-K/A filed with the Commission on
October 4, 2000);
(c) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended December 31, 1999, March 31, 2000 and June 30, 2000
filed with the Commission on February 15, 2000, May 15, 2000 and
August 14, 2000, respectively, and;
(d) The Registrant's Registration Statement on Form 8-A12G filed with
the Commission on February 12, 1998, in which there is described the
terms, rights and provisions applicable to the Registrant's Common
Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5 Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a
court to award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "1933 Act"). Article IX, Section 1, of the Registrant's Bylaws
provides for mandatory indemnification of its directors and officers and
permissible indemnification of employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. The Registrant's Restated
Certificate of Incorporation provides that, pursuant to Delaware law, its
directors shall not be liable for monetary damages for breach of the directors'
fiduciary duty as directors to the Company and its stockholders. This provision
in the Restated Certificate of Incorporation does not eliminate the directors'
fiduciary duty, and in appropriate circumstances equitable remedies such as
injunctive or other forms of
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non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Company for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Registrant has entered into
Indemnification Agreements with its officers and directors. The Indemnification
Agreements provide the Registrant's officers and directors with further
indemnification to the maximum extent permitted by the Delaware General
Corporation Law.
The Registrant's Bylaws provide that the Registrant shall indemnify
its directors and officers to the fullest extent permitted by Delaware law,
including in circumstances in which indemnification is otherwise discretionary
under Delaware law. The Registrant has also entered into indemnification
agreements with its officers and directors containing provisions that may
require the Company, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as directors or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses incurred as a result
of any proceeding against them as to which they could be indemnified, and to
obtain directors' and officers' insurance if available on reasonable terms.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is made to
Registrant's Registration Statement on Form 8-A12G, together with any
amendments and exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(d).
5.1 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.1.
24 Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
99.1 NetOps Corporation 1997 Long-Term Incentive Plan (As Assumed by
Registrant).
99.2 Form of Incentive Stock Option Agreement.
99.3 Form of Non-Qualified Stock Option Agreement.
99.4 Form of Stock Option Assumption Agreement.
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 1933 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 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 clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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; and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered hereunder which remain unsold upon the termination of the
NetOps Corporation 1997 Long-Term Incentive Plan, as assumed by the Registrant
in connection with its acquisition of NetOps Corporation.
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B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 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, 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 San Francisco, State of California on
this 27th day of October, 2000.
Micromuse Inc.
By: /s/ Gregory Q. Brown
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Gregory Q. Brown
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gregory Q. Brown and Stephen A. Allott,
and each of them, as such person's true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
Signature Title Date
--------- ----- ----
/s/ Gregory Q. Brown Chief Executive Officer and October 27, 2000
------------------------ Chairman of the Board
Gregory Q. Brown (Principal Executive Officer)
/s/ Stephen A. Allott President, Chief Financial Officer October 27, 2000
------------------------ and Director (Principal Financial
Stephen A. Allott and Accounting Officer)
/s/ Michael E.W. Jackson Director October 27, 2000
-------------------------
Michael E.W. Jackson
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<PAGE>
/s/ David C. Schwab
------------------------- Director October 27, 2000
David C. Schwab
/s/ Kathleen M.H. Wallman
------------------------- Director October 12, 2000
Kathleen M.H. Wallman
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
MICROMUSE INC.
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EXHIBIT INDEX
Exhibit Number Exhibit
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Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement on Form
8-A12G, together with any amendments and exhibits thereto,
which are incorporated herein by reference pursuant to Item
3(d).
5.1 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.1.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 NetOps Corporation 1997 Long-Term Incentive Plan (As Assumed
by Registrant).
99.2 Form of Incentive Stock Option Agreement.
99.3 Form of Non-Qualified Stock Option Agreement.
99.4 Form of Stock Option Assumption Agreement.
