<PAGE>
As filed with the Securities and Exchange Commission on October 8, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------
NETIQ CORPORATION
(Exact name of Registrant as specified in its charter)
--------------
Delaware 77-0405505
(State of incorporation) (I.R.S. Employer Identification Number)
5410 Betsy Ross Drive
Santa Clara, California 95054
(Address of principal executive offices, including zip code)
--------------
AMENDED AND RESTATED 1995 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
--------------
Ching-Fa Hwang
President and Chief Executive Officer
NetIQ Corporation
5410 Betsy Ross Drive
Santa Clara, California 95054
(408) 330-7000
(Name, address and telephone number, including area code, of agent for service)
--------------
Copy to:
Thomas C. DeFilipps, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
<TABLE>
<CAPTION>
=================================================================================================================
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Proposed Proposed
Maximum Maximum
Maximum Amount Offering Aggregate Amount of
Title of Securities to to be Price Offering Registration
be Registered Registered(1) Per Share Price Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value
To be issued under Amended and
Restated 1995 Stock Plan...................... 3,928,114 shares $12.22(2) $48,001,587.23 $13,344.44
To be issued under 1999 Employee
Stock Purchase Plan........................... 500,000 shares $11.05(3) $ 5,525,000.00 $ 1,535.95
TOTAL 4,428,114 shares $53,526,587.23 $14,880.39
=================================================================================================================
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into two subtotals.
(2) Computed in accordance with Rule 457(c) and Rule 457(h) under the
Securities Act. Such computation is based on the weighted average exercise
price of $3.7724 per share covering 2,483,961 outstanding options and the
estimated exercise price of $26.75 covering 1,444,153 authorized but
unissued shares under our Amended and Restated 1995 Stock Plan. The
estimated exercise price of $26.75 per share was computed in accordance
with Rule 457(c) by averaging the high and low prices of a share of NetIQ
common stock as reported by the Nasdaq National Market on October 5,
1999.
(3) The exercise price of $11.05 per share, computed in accordance with Rule
457(h) under the Securities Act, is 85% of the closing price of a share of
NetIQ common stock as reported by the Nasdaq National Market on July 30,
1999, the current enrollment date. Pursuant to Section 2(n) of the 1999
Employee Stock Purchase Plan (attached as Exhibit 10.4A hereto), shares are
sold at 85% of the lesser of the fair market value of such shares on the
enrollment date or on the exercise date.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this prospectus the following
documents and information heretofore filed with the SEC.
(1) Our Annual Report on Form 10-K for the fiscal year ended June 30, 1999.
(2) The description of our common stock contained in the Registration
Statement on Form 8-A filed July 19, 1999 pursuant to Section 12(g) of the
Exchange Act.
All documents subsequently filed by NetIQ pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents.
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 permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article XI of our Restated Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
Law.
Article VI of our Bylaws provides for the indemnification of officers,
directors and third parties acting on behalf of the corporation if such person
acted in good faith and in a manner reasonably believed to be in and not opposed
to the best interest of the corporation, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his conduct
was unlawful.
We have entered into indemnification agreements with our directors and
executive officers, in addition to the indemnification provided for in our
Bylaws, and intend to enter into indemnification agreements with any new
directors and executive officers in the future.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
II-1
<PAGE>
Exhibit
Number Description
- ------------ --------------------------------------------------------------
5.1 Opinion of counsel as to legality of securities being
registered.
10.3A* Amended and Restated 1995 Stock Plan
10.3B* Form of Option Agreement under the Amended and Restated 1995
Stock Plan
10.3C* Form of Director Option Agreement under the Amended and Restated
1995 Stock Plan
10.4A* 1999 Employee Stock Purchase Plan
10.4B* Form of Subscription Agreement under the 1999 Employee Stock
Purchase Plan
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (see page II-3).
- -------------
* Incorporated by reference to the exhibit bearing the same number filed with
NetIQ's Registration Statement on Form S-1, as amended (No. 333-79373), which
the SEC declared effective on July 29, 1999.
Item 9. Undertakings.
A. NetIQ 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, 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. NetIQ hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of NetIQ's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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 NetIQ
pursuant to law, NetIQ's Certificate of Incorporation, Bylaws, indemnification
agreements, or otherwise, NetIQ has been advised that in the opinion of the SEC
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 NetIQ of expenses incurred
or paid by a director, officer or controlling person of NetIQ in a 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, NetIQ will, unless in the opinion of its counsel the matter has
already 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.
II-2
<PAGE>
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 Santa Clara, State of California, on this 8th day of
October, 1999.
NETIQ CORPORATION
By: /s/ Ching-Fa Hwang
--------------------------------------
Ching-Fa Hwang
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ching-Fa Hwang and James A. Barth, and
each of them, as his attorney-in-fact, with full power of substitution in each,
for him 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 said attorney-in-fact, or his
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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------------- --------------------------------------------- -------------------
<S> <C> <C>
/s/ Ching-Fa Hwang President and Chief Executive Officer and October 8, 1999
- --------------------------------- Director (Principal Executive Officer)
(Ching-Fa Hwang)
/s/ James A. Barth Vice President, Finance, Chief Financial October 8, 1999
- --------------------------------- Officer and Secretary (Principal Financial and
(James A. Barth) Accounting Officer)
/s/ Her-Daw Che Director and Vice President, Engineering October 8, 1999
- ---------------------------------
(Her-Daw Che)
/s/ Herbert Chang Director October 8, 1999
- ---------------------------------
(Herbert Chang)
/s/ Louis C. Cole Director October 8, 1999
- ---------------------------------
(Louis C. Cole)
/s/ Alan W. Kaufman Director October 8, 1999
- ---------------------------------
(Alan W. Kaufman)
/s/ Ying-Hon Wong Director October 8, 1999
- ---------------------------------
(Ying-Hon Wong)
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Page
- ------------ -------------------------------------------------------------- ------------------
<C> <S> <C>
5.1 Opinion of counsel as to legality of securities being
registered.
10.3A* Amended and Restated 1995 Stock Plan
10.3B* Form of Option Agreement under the Amended and Restated 1995
Stock Plan
10.3C* Form of Director Option Agreement under the Amended and Restated
1995 Stock Plan
10.4A* 1999 Employee Stock Purchase Plan
10.4B* Form of Subscription Agreement under the 1999 Employee Stock
Purchase Plan
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (see page II-3).
- ----------------
</TABLE>
* Incorporated by reference to the exhibit bearing the same number filed with
NetIQ's Registration Statement on Form S-1, as amended (No. 333-79373), which
the SEC declared effective on July 29, 1999.
<PAGE>
EXHIBIT 5.1
-----------
Wilson Sonsini Goodrich & Rosati
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
WWW.WSGR.COM
PALO ALTO, CALIFORNIA JOHN ARNOT WILSON
KIRKLAND, WASHINGTON RETIRED
AUSTIN, TEXAS
October 7, 1999
NetIQ Corporation
5410 Betsy Ross Drive
Santa Clara, California 95054
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on October 8, 1999 (as such may
thereafter be amended or supplemented, the "Registration Statement"), in
connection with the registration under the Securities Act of 1933, as amended,
of 4,428,114 shares of your Common Stock, $0.001 par value (the "Shares"), of
which 3,298,114 shares are reserved for future issuance under the Amended and
Restated 1995 Stock Plan and 500,000 shares are reserved for future issuance
under the Company's 1999 Employee Stock Purchase Plan. As your legal counsel,
we have examined the proceedings taken, and are familiar with the proceedings
proposed to be taken, by you in connection with the sale and issuance of the
Shares.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, the Shares, when issued and sold in the manner described in the
Registration Statement and in accordance with the resolutions adopted by the
Board of Directors of the Company, will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration statement
of NetIQ Corporation on Form S-8 of our reports dated July 9, 1999 (August 4,
1999 as to Note 13), appearing in the Annual Report on Form 10-K of NetIQ
Corporation for the year ended June 30, 1999.
/s/ Deloitte & Touche LLP
San Jose, California
October 4, 1999
