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As filed with the Securities and Exchange Commission on July 30, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
WATCHGUARD TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 91-1712427
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
316 Occidental Avenue South, Suite 200
Seattle, Washington 98104
(Address of principal executive offices, including zip code)
WATCHGUARD TECHNOLOGIES, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
WATCHGUARD TECHNOLOGIES, INC. 1996 STOCK INCENTIVE COMPENSATION PLAN
(Full title of the plans)
CHRISTOPHER G. SLATT
President, Chief Executive Officer and Chairman of the Board
WatchGuard Technologies, Inc.
316 Occidental Avenue South, Suite 200
Seattle, Washington 98104
(206) 521-8340
(Name, address and telephone number, including area code, of agent for service)
______________________
Copies to:
STEPHEN M. GRAHAM
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101-3099
______________________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
====================================================================================================================================
Title of Securities Number to Be Proposed Maximum Proposed Maximum Amount of
to Be Registered Registered(1) Offering Price Aggregate Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share, subject
to outstanding options under the:
- ------------------------------------------------------------------------------------------------------------------------------------
WatchGuard Technologies, Inc. 1996 Stock 6,539,583 $ 3.23(2) $21,122,853.00 $ 5,873.00
Incentive Compensation Plan
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Common Stock, par value $0.01 per share,
authorized but unissued under the:
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WatchGuard Technologies, Inc. 1999 Employee 1,400,000 $13.00(3) $18,200,000.00 $ 5,060.00
Stock Purchase Plan
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WatchGuard Technologies, Inc. 1996 Stock 2,671,213 $13.00(3) $34,725,769.00 $ 9,654.00
Incentive Compensation Plan
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL: 10,610,796 $74,048,622 $20,587.00
====================================================================================================================================
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(1) Based on shares subject to outstanding options or reserved for future
issuance pursuant to the employee benefit plans, together with an
indeterminate number of additional shares which may be necessary to adjust
the number of shares reserved for issuance pursuant to such employee
benefit plans as the result of any future stock split, stock dividend or
similar adjustment of the registrant's outstanding Common Stock.
(2) Computed pursuant to Rule 457(h) under the Securities Act of 1933, as
amended. The proposed maximum offering price of $3.23 represents the
weighted average of the exercise prices of currently outstanding options,
which range from $0.0250 to $13.00 per share.
(3) Estimated as of the filing date of this Registration Statement solely for
the purpose of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933, as amended. The proposed maximum
offering price is $13.00, which is the initial offering price of the Common
Stock.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this Registration
Statement:
(a) The registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"), which contains
audited financial statements of the registrant; and
(b) The description of the registrant's Common Stock contained in the
Registration Statement on Form 8-A filed on July 26, 1999, under Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendments or reports filed for the purpose of updating such
description.
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 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify its directors and officers, as well as other
employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification in which the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
Section 10 of the Registrant's Restated Bylaws requires indemnification to
the full extent permitted under Delaware law as it now exists or may hereafter
be amended. Subject to any restrictions imposed by Delaware law, the Restated
Bylaws provide an unconditional right to indemnification for all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) actually and reasonably
incurred or suffered by any person in connection with any actual or threatened
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including, to the extent permitted by law, any derivative action)
by reason of the fact that such person is or was serving as a director or
officer of the Registrant or that, being or having been a director or officer of
the Registrant, such person is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan.
The Restated Bylaws also provide that the Registrant may, by action of its
Board of Directors, provide indemnification to its employees and agents with the
same scope and effect as the foregoing indemnification of directors and
officers.
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Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (a) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(b) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (d) any transaction from which the director
derived an improper personal benefit.
Article 10 of the Registrant's Restated Certificate of Incorporation
provides that to the full extent that the DGCL, as it now exists or may
hereafter be amended, permits the limitation or elimination of the liability of
directors, a director of the Registrant shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any amendment to or repeal of such Article 10 shall not adversely
affect any right or protection of a director of the Registrant for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
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Item 8. EXHIBITS
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Exhibit
Number Description
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<C> <S>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being
registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 WatchGuard Technologies, Inc. 1999 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.10 to the Registration Statement on
Form S-1)
99.2 WatchGuard Technologies, Inc. 1996 Stock Incentive Compensation Plan
(incorporated by reference to Exhibit 10.6 to the Registration Statement on
Form S-1)
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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; 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
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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 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.
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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-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 the 29th day of
July, 1999.
WATCHGUARD TECHNOLOGIES, INC.
By: /s/ Christopher G. Slatt
-------------------------
Christopher G. Slatt
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Christopher G. Slatt and Steven N. Moore, or either of them, as attorneys-in-
fact with full power of substitution, to execute in the name and on the behalf
of each 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.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 29th day of July, 1999.
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Signature Title
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<S> <C>
/s/ Christopher G. Slatt President, Chief Executive Officer and Chairman of the Board
- ------------------------------------------ (Principal Executive Officer)
Christopher G. Slatt
/s/ Steven N. Moore Executive Vice President of Finance, Chief Financial Officer,
- ------------------------------------------ Secretary, Treasurer and Director (Principal Financial and
Steven N. Moore Accounting Officer)
/s/ Stuart J. Ellman Director
- ------------------------------------------
Stuart J. Ellman
/s/ Andrew W. Verhalen Director
- ------------------------------------------
Andrew W. Verhalen
/s/ Charles P. Waite, Jr. Director
- ------------------------------------------
Charles P. Waite, Jr.
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit
Number Description
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<C> <S>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being
registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 WatchGuard Technologies, Inc. 1999 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.10 to the Registration Statement on
Form S-1)
99.2 WatchGuard Technologies, Inc. 1996 Stock Incentive Compensation Plan
(incorporated by reference to Exhibit 10.6 to the Registration Statement on
Form S-1)
</TABLE>
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EXHIBIT 5.1
[Perkins Coie LLP Letterhead]
July 29, 1999
WatchGuard Technologies, Inc.
316 Occidental Avenue South
Suite 200
Seattle, WA 98104
Re: Registration Statement on Form S-8 of Shares of Common Stock,
par value $0.01 per share, of WatchGuard Technologies, Inc.
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), which you are filing with the
Securities and Exchange Commission with respect to shares of Common Stock, par
value $.01 per share, which may be issued as follows: up to 1,400,000 shares
pursuant to the WatchGuard Technologies, Inc. 1999 Employee Stock Purchase Plan
and up to 9,210,796 shares pursuant to the WatchGuard Technologies, Inc. 1996
Stock Incentive Compensation Plan.
We have examined the Registration Statement and such documents and records
of the Company and other documents as we have deemed relevant and 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 any
shares that may be issued pursuant to the plans have been duly authorized and
that, upon the due execution by the Company and the registration by its
registrar of such shares, the sale thereof by the Company in accordance with the
terms of the plans, the receipt of consideration therefor in accordance with the
terms of the plans, such 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,
/s/ Perkins Coie LLP
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the WatchGuard Technologies, Inc. 1999 Employee Stock
Purchase Plan and the WatchGuard Technologies, Inc. 1999 Stock Incentive
Compensation Plan, of our report dated March 26, 1999, except for Note 11, as to
which the date is July 8, 1999, with respect to the consolidated financial
statements of WatchGuard Technologies, Inc. included in its Registration
Statement (Form S-1 No. 333-76587) filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Seattle, Washington
July 30, 1999
