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As filed with the Securities and Exchange Commission on December 19, 2000
Registration No. 333-88721
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
AMENDMENT NO. 1 TO
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 or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3553 North First Street
San Jose, California 95134
(Address of Principal Executive Offices) (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
3553 North First Street
San Jose, California 95134
(Name and address of agent for service)
(408) 330-7000
(Telephone number, including area code, of agent for service)
__________
Copy to:
William M. Kelly, Esq.
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, California 94025
(650) 752-2000
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CALCULATION OF REGISTRATION FEE
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Proposed
maximum Proposed maximum
Title of securities Amount to be offering price per aggregate Amount of
to be registered registered (1) share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value ....... 4,541,668 shares $78.50(2) $356,520,938.00(2) $ 94,121.52
1,250,000 shares $66.725(3) $ 83,406,250.00(3) $ 22,019.25
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Totals ............................ 5,791,668 shares $439,927,188.00 $116,140.77
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_________________
(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) Estimated solely for the purposes of calculating the registration fee.
Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933,
as amended, the proposed maximum offering price per share has been
determined based on the average of the high and low prices of the NetIQ
Common Stock on December 15, 2000, as reported by NASDAQ National Market.
(3) Estimated solely for the purposes of calculating the registration fee.
Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share has been determined by
multiplying 85% times the average of the high and low prices of the NetIQ
Common Stock on December 15, 2000, as reported by the Nasdaq National
Market. Pursuant to Section 2(n) of the 1999 Employee Stock Purchase Plan
(see Exhibit 10.4A), 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.
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SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to participants in the
Plans as specified under Rule 428(b)(i) under the Securities Act of 1933, as
amended (the "Securities Act").Such documents are not required to be, and are
not being, filed by the Company with the Securities and Exchange Commission (the
"Commission"), either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. Such
documents, together with the documents incorporated by reference herein pursuant
to Item 3 of Part II of this Registration Statement on Form S-8, constitute a
prospectus that meets the requirements of Section 10 (a) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
This Registration Statement incorporates herein by reference the following
documents which have been filed with the Commission by the Company as
Registrant:
(1) Our Annual Report on Form 10-K for the fiscal year ended June 30, 2000.
(2) Our Quarterly Report on Form 10-Q for the quarter ended September 30,
2000.
(3) 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 incorpo
rated 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 . Interest 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.
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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 for Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following are filed as part of this Registration Statement:
Exhibit No. 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Jose, State of California, on the 15th day of
December, 2000.
NETIQ CORPORATION
By: /s/ Ching-Fa Hwang
--------------------------------------
Ching-Fa Hwang
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated. Each person whose individual signature appears below
hereby authorizes Ching-Fa Hwang and James A. Barth and each of them, to execute
in the name and on behalf of each such person and to file any amendment to this
Registration Statement, and appoints Ching-Fa Hwang and James A. Barth, or each
of them, as attorney-in-fact to sign on his behalf individually and in each
capacity stated below, and to file any amendments to this Registration
Statement, including any and all post-effective amendments.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ching-Fa Hwang President and Chief Executive Officer and Director December 15, 2000
----------------------- (Principal Executive Officer)
Ching-Fa Hwang
/s/ James A. Barth Senior Vice President, Finance, Chief Financial December 15, 2000
----------------------- Officer and Secretary (Principal Financial and
James A. Barth Accounting Officer)
/s/ Thomas P. Bernhardt Director and Chief Technology Officer December 15, 2000
-----------------------
Thomas P. Bernhardt
/s/ Michael J. Maples Director December 15, 2000
-----------------------
Michael J. Maples
/s/ Scott Sandell Director December 15, 2000
-----------------------
Scott Sandell
/s/ Alan W. Kaufman Director December 15, 2000
-----------------------
Alan W. Kaufman
/s/ Ying-Hon Wong Director December 15, 2000
-----------------------
Ying-Hon Wong
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EXHIBIT INDEX
Exhibit No. 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 Emp loyee 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.
