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As filed with the Securities and Exchange Commission on November 9, 2000
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
QUEST SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-0231678
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
8001 IRVINE CENTER DRIVE
IRVINE, CA 92618
(Address of principal executive offices) (Zip Code)
ONWIRE TECHNOLOGIES, INC.
1996 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the Plan)
J. MICHAEL VAUGHN
GENERAL COUNSEL
QUEST SOFTWARE, INC.
8001 IRVINE CENTER DRIVE
IRVINE, CA 92618
(Name and address of agent for service)
(949) 754-8000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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=========================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share(2) Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock, no par value 6,697 shares $38.57 $258,304 $68.19
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan 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 outstanding shares of Registrant's Common
Stock.
(2) Estimated, solely for purposes of calculating the registration fee,
pursuant to Rule 457(h) on the basis of the weighted average exercise price
of the outstanding options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Quest Software, Inc. (the "Company" or
"Registrant") are incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999
(b) The Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 2000 and June 30, 2000
(c) The Company's Current Reports on Form 8-K dated December 17, 1999
(as amended on February 18, 2000), January 7, 2000 (as amended on
February 23, 2000), March 10, 2000, June 28, 2000, and September
11, 2000 (as amended on October 5, 2000); and
(d) The description of the Company's Common Stock contained in its
Registration Statement filed under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange 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
The Company's Articles of Incorporation limit the personal liability of
its directors for monetary damages to the fullest extent permitted by the
California General Corporation Law. Under California law, a director's liability
to a company or its shareholders may not be limited:
o for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law;
o for acts or omissions that a director believes to be contrary to the
best interests of the company or its shareholders or that involve
the absence of good faith on the part of the director;
o for any transaction from which a director derived an improper
personal benefit;
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o for acts or omissions that show a reckless disregard for the
director's duty to the company or its shareholders in circumstances
in which the director was aware, or should have been aware, in the
ordinary course of performing the director's duties, of a risk of
serious injury to the company or its shareholders;
o for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to
the company or its shareholders;
o under Section 310 of the California General Corporation Law
concerning contacts or transactions between the company and a
director; or
o under Section 316 of the California General Corporation Law
concerning directors' liability for improper dividends, loans and
guarantees.
The limitation of liability does not affect the availability of
injunctions and other equitable remedies available to the Company's shareholders
for any violation by a director of the director's fiduciary duty to the
Registrant or its shareholders.
The Company's Articles of Incorporation also include an authorization
for it to indemnify its "agents" (as defined in Section 317 of the California
General Corporation Law) through bylaw provisions, by agreement or otherwise, to
the fullest extent permitted by law. Pursuant to this provision, the Company's
Bylaws provide for indemnification of its directors, officers and employees. In
addition, the Company may, at its discretion, provide indemnification to persons
whom the Registrant is not obligated to indemnify. The Bylaws also allow the
Company to enter into indemnity agreements with individual directors, officers,
employees and other agents. Indemnity agreements have been entered into with all
directors and certain executive officers and provide the maximum indemnification
permitted by law. The Company also currently maintains directors' and officers'
liability insurance. These agreements, together with the Company's Bylaws and
Articles of Incorporation, may require the Company, among other things, to
indemnify its directors and executive officers, other than for liability
resulting from willful misconduct of a culpable nature, and to advance expenses
to them as they are incurred, provided that they undertake to repay the amount
advanced if it is ultimately determined by a court that they are not entitled to
indemnification. Section 317 of the California General Corporation Law and the
Company's Bylaws and its indemnification agreements make provision for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons, under certain circumstances, for
liabilities, including reimbursement of expenses incurred, arising under the
Securities Act of 1933, as amended (the "Securities Act").
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
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5 Opinion of General Counsel.
23.1 Consent of Deloitte & Touche LLP, Independent Accountants,
with respect to the consolidated financial statements of the
Company.
23.2 Consent of Deloitte & Touche LLP, Independent Accountants,
with respect to the consolidated financial statements of
Foglight Software, Inc.
23.3 Consent of Deloitte & Touche LLP Chartered Accountants, with
respect to the financial statements of Fastlane
Technologies, Inc.
23.4 Consent of Swenson Advisors, LLP, Independent Accountants,
with respect to the financial statements of MBR
Technologies, Inc.
23.5 Consent of General Counsel (included in Exhibit 5)
24 Power of Attorney (included on the signature page)
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Item 9. Undertakings
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 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 Exchange Act that are
incorporated by reference into 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; and
(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.
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 Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section15(d) of the Exchange 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.
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 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 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, 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 Irvine, State of California on this 9th day of
November, 2000.
QUEST SOFTWARE, INC.
By: /s/ DAVID M. DOYLE
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David M. Doyle
President and Secretary
POWER OF ATTORNEY
The undersigned officers and directors of Quest Software, Inc., a
California corporation, do hereby constitute and appoint Vincent C. Smith, David
M. Doyle and John J. Laskey, and each of them, the lawful attorneys-in-fact and
agents with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and any one of
them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ VINCENT C. SMITH Chief Executive Officer and November 9, 2000
-------------------------- Chairman of The Board
Vincent C. Smith (Principal Executive Officer)
/s/ DAVID M. DOYLE President, Secretary and Director November 9, 2000
--------------------------
David M. Doyle
/s/ JOHN J. LASKEY Chief Financial Officer November 9, 2000
-------------------------- and Vice President, Finance
John J. Laskey (Principal Financial Officer)
/s/ KEVIN BROOKS Corporate Controller November 9, 2000
-------------------------- (Principal Accounting Officer)
Kevin Brooks
/s/ Director November __, 2000
--------------------------
Doran G. Machin
/s/ Director November __, 2000
--------------------------
Jerry Murdock, Jr.
/s/ RAYMOND J. LANE Director November 9, 2000
--------------------------
Raymond J. Lane
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EXHIBIT INDEX
Exhibit Number Exhibit
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5 Opinion of General Counsel.
23.1 Consent of Deloitte & Touche LLP, Independent Accountants,
with respect to the consolidated financial statements of the
Company.
23.2 Consent of Deloitte & Touche LLP, Independent Accountants,
with respect to the consolidated financial statements of
Foglight Software, Inc.
23.3 Consent of Deloitte & Touche LLP Chartered Accountants, with
respect to the financial statements of Fastlane
Technologies, Inc.
23.4 Consent of Swenson Advisors, LLP, Independent Accountants,
with respect to the financial statements of MBR
Technologies, Inc.
23.5 Consent of General Counsel (included in Exhibit 5)
24 Power of Attorney (included on the signature page)
