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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 19, 1999
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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WEBTRENDS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OREGON 93-1123283
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
851 S.W. SIXTH AVENUE, SUITE 1200
PORTLAND, OREGON 97204
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
WEBTRENDS CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
WEBTRENDS CORPORATION 1998 STOCK INCENTIVE COMPENSATION PLAN
WEBTRENDS CORPORATION 1997 STOCK INCENTIVE COMPENSATION PLAN
(FULL TITLE OF THE PLANS)
SUSAN E. KIPPER
LAWCO OF OREGON, INC.
1211 SW FIFTH AVENUE, SUITE 1500
PORTLAND, OREGON 97204
(503) 727-2000
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
ROY W. TUCKER
PERKINS COIE LLP
1211 SW FIFTH AVENUE, SUITE 1500
PORTLAND, OREGON 97204
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum
Title of Securities Number to Be Proposed Maximum Aggregate Offering Amount of
to Be Registered Registered(1) Offering Price Price Registration Fee
----------- ---------------- ----------- ----------------
<S> <C> <C> <C> <C>
Common Stock, without par value,
subject to outstanding options under
the:
WebTrends Corporation 1998 Stock 25,000 $ 4.50(2) $ 112,500
Incentive Compensation Plan 3,625 13.00 47,125
WebTrends Corporation 1997 Stock 809,208 $0.6066(2) $ 490,866
Incentive Compensation Plan 291,450 1.82(2) 530,439
175,750 7.00(2) 1,230,250
165,000 8.00(2) 1,320,000
Common Stock, without par value, not
subject to outstanding options under
the:
WebTrends Corporation 1999
Employee Stock Purchase Plan 382,500 $ 13.00(3) $ 4,972,500(3)
WebTrends Corporation 1998 Stock
Incentive Compensation Plan 1,936,850 $ 13.00(3) $25,179,050(3)
TOTAL: 3,789,383 $33,882,730 $ 9,420.00
</TABLE>
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(1) 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) Based upon the exercise prices of options granted as of the date of filing
this Registration Statement pursuant to Rule 457(h)(1) under the
Securities Act of 1933, as amended.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended. The
price per share 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 (the "Prospectus") filed with
the Securities and Exchange Commission (the "Commission") on February 19, 1999
pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the
"Securities Act"); and
(b) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed on December 28, 1998, under
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendments or reports 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
As an Oregon corporation, the Registrant is subject to the laws of the
State of Oregon governing private corporations and the exculpation from
liability and indemnification provisions contained therein. Pursuant to Section
60.045(2)(d) of the Oregon Revised Statutes ("ORS"), the Registrant's Second
Restated Articles of Incorporation (the "Articles") eliminates the liability of
the Registrant's directors to the Registrant or its shareholders except for any
liability related to (i) breach of the duty of loyalty; (ii) acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law; (iii) any unlawful distribution under ORS 60.367; or (iv) any
transaction from which the director derived an improper personal benefit.
ORS Section 60.391 allows corporations to indemnify their directors and
officers against liability where the director or officer has acted in good faith
and with a reasonable belief that actions taken were in the best interests of
the corporation or at least not opposed to the corporation's best interests and,
if in a criminal proceeding, the individual had no reasonable cause to believe
the conduct in question was unlawful. Under ORS Sections 60.387 to 60.414,
corporations may not indemnify a director or officer against liability in
connection with a claim by or in the right of the corporation or for any
improper personal benefit in which the director or officer was adjudged liable
to the corporation. ORS 60.394 mandates indemnification for all reasonable
expenses incurred in the successful defense of any claim made or threatened
whether or not such claim was by or in the right of the corporation. Finally,
pursuant to the ORS Section 60.401, a court may order indemnification in view of
all the relevant circumstances, whether or not the director or officer met the
good-faith and reasonable belief standards of conduct set out in ORS Section
60.391.
ORS Section 60.414 also provides that the statutory indemnification
provisions are not deemed exclusive of any other rights to which directors or
officers may be entitled under a corporation's articles of incorporation or
bylaws, any agreement, general or specific action of the board of directors,
vote of shareholders or otherwise.
The Articles provide that the Registrant is required to indemnify to
the fullest extent not prohibited by law any current or former director who is
made, or threatened to be made, a party to an action or proceeding by
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reason of the fact that such person serves or served as a director of the
Registrant. The Articles also provide that the Registrant is permitted to
indemnify to the fullest extent not prohibited by law any current or former
officer who is made, or threatened to be made, a party to an action or
proceeding by reason of the fact that such person is or was an officer of the
Registrant.
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ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being registered
23.1 Consent of KPMG Peat Marwick LLP
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 WebTrends Corporation 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit
10.2 to the Registration Statement on Form S-1)
99.2 WebTrends Corporation 1998 Stock Incentive Compensation Plan (incorporated by reference to
Exhibit 10.1 to the Registration Statement on Form S-1)
99.3 WebTrends Corporation 1997 Stock Incentive Compensation Plan (incorporated by reference to
Exhibit 10.3 to the Registration Statement on Form S-1)
</TABLE>
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.
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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 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 Portland, State of Oregon, on the 19th day of
February, 1999.
WEBTRENDS CORPORATION
/s/ Elijahu Shapira
------------------------------------
By: Elijahu Shapira, Chief Executive
Officer
Each person whose individual signature appears below hereby authorizes
Elijahu Shapira and W. Glen Boyd, 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 19th day of February, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Elijahu Shapira Chief Executive Officer and Director (Principal Executive
- ---------------------------------- Officer)
Elijahu Shapira
/s/ W. Glen Boyd President, Chief Technical Officer and Director
- ----------------------------------
W. Glen Boyd
/s/ James T. Richardson Vice President, Secretary, Chief Financial Officer and Chief
- ---------------------------------- Accounting Officer (Principal Financial and Accounting Officer)
James T. Richardson
/s/ Michael Burmeister-Brown Director
- ----------------------------------
Michael Burmeister-Brown
/s/ John W. Ryan Director
- ----------------------------------
John W. Ryan
/s/ Srivats Sampath Director
- ----------------------------------
Srivats Sampath
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being registered
23.1 Consent of KPMG Peat Marwick LLP
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 WebTrends Corporation 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.2
to the Registration Statement on Form S-1)
99.2 WebTrends Corporation 1998 Stock Incentive Compensation Plan (incorporated by reference to Exhibit
10.1 to the Registration Statement on Form S-1)
99.3 WebTrends Corporation 1997 Stock Incentive Compensation Plan (incorporated by reference to Exhibit
10.3 to the Registration Statement on Form S-1)
</TABLE>
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EXHIBIT 5.1
PERKINS COIE LLP
1211 SW FIFTH AVENUE, SUITE 1500, PORTLAND, OREGON 97204-3715
TELEPHONE: 503 727-2000 FACSIMILE: 503 727-2222
February 19, 1999
WebTrends Corporation
851 S.W. Sixth Avenue, Suite 1200
Portland, Oregon 97204
Re: Registration Statement on Form S-8
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 3,789,383 shares of Common
Stock, without par value (the "Shares"), which may be issued as follows: 382,500
shares pursuant to the WebTrends Corporation 1999 Employee Stock Purchase Plan;
1,965,475 shares pursuant to the WebTrends Corporation 1998 Stock Incentive
Compensation Plan; and 1,441,408 shares pursuant to the WebTrends Corporation
1997 Stock Incentive Compensation Plan (the "Plans").
Based upon and subject to the foregoing, we are of the opinion that any
original issuance 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 and the sale thereof by the Company in
accordance with the terms of the Plans, and 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 Independent Accountants
The Board of Directors
WebTrends Corporation:
We consent to incorporation by reference in the Registration Statement on Form
S-8 dated February 19, 1998 of WebTrends Corporation of our reports dated
January 11, 1999, except for note 10 which is as of January 19, 1999, relating
to the balance sheets of WebTrends Corporation as of December 31, 1998 and 1997
and the related statements of operations, shareholders' equity and cash flows
for each of the years in the three-year period ended December 31, 1998 and the
related schedule, which reports appear in Amendment No. 3 to Registration
Statement No. 333-69171 on Form S-1 of WebTrends Corporation.
/s/ KPMG Peat Marwick LLP
Portland, Oregon
February 19, 1999
