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As filed with the Securities and Exchange Commission on March 28, 2000
Registration No. 333-
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UNITED STATES
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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WEBSENSE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0380839
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
10240 SORRENTO VALLEY ROAD
SAN DIEGO, CA 92121
(Address of principal executive offices) (Zip Code)
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WEBSENSE, INC.
2000 STOCK INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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JOHN B. CARRINGTON
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD
WEBSENSE, INC.
10240 SORRENTO VALLEY ROAD
SAN DIEGO, CA 92121
(Name and address of agent for service)
(858) 320-8000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price(2) Fee
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<S> <C> <C> <C> <C>
2000 Stock Incentive Plan
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Common Stock, $0.01 par value 4,500,000 shares $18.00 (2) $81,000,000 (2) $21,384
2000 Employee Stock Purchase Plan
---------------------------------
Common Stock, $0.01 par value 250,000 shares $18.00 (2) $4,500,000 (2) $ 1,188
Aggregate Registration Fee $22,572
==============================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Websense, Inc. 2000 Stock
Incentive Plan or the Websense, Inc. 2000 Employee Stock Purchase 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) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the highest
proposed selling price per share of Registrant's Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Websense, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Registration Statement No. 333-95619 on Form
S-1 filed with the Commission on January 28, 2000, as amended
on Forms S-1/A filed with the Commission on March 3, 2000,
March 23, 2000 and March 27, 2000 (the "Form S-1"); and
(b) The Registrant's Registration Statement No. 000-30093 on Form
8-A filed with the Commission on March 24, 2000 pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the
"Exchange Act"), in which there is described the terms,
rights, and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 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
Section 145 of the Delaware General Corporation Law authorizes
a court to award, or a corporation's board of directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). As permitted by the Delaware General
Corporation Law, the Registrant's Amended and Restated Certificate of
Incorporation includes a provision that eliminates the personal liability of its
directors for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the Delaware General Corporation Law (regarding unlawful
dividends and stock purchases) or (iv) for any transaction from which the
director derived an improper personal benefit. As permitted by the Delaware
General Corporation Law, the Bylaws of the Registrant provide that (i) the
Registrant is required to indemnify its directors and officers to the fullest
extent permitted by the Delaware General Corporation Law, subject to certain
very limited exceptions, (ii) the Registrant may indemnify its other employees
and agents as set forth in the Delaware General Corporation Law, (iii) the
Registrant is required to advance expenses, as incurred, to its directors and
executive officers in connection with a legal proceeding to the fullest extent
permitted by the Delaware General Corporation Law, subject to certain very
limited exceptions and (iv) the rights conferred in the Bylaws are not
exclusive. The indemnification provisions in the Registrant's Amended and
Restated Certificate of Incorporation and in its Bylaws may be sufficiently
broad to permit indemnification of the Registrant's directors and executive
officers for liabilities
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arising under the Securities Act. In addition, the Registrant has entered into
indemnification agreements with each of its directors and executive officers,
forms of which are attached as Exhibits 10.14 and 10.15 to Registrant's Form
S-1. The Registrant has also obtained insurance for the protection of its
directors and officers against any liability asserted against them in their
official capacities. The rights of indemnification described above are not
exclusive of any other rights of indemnification to which the persons
indemnified may be entitled under the Amended and Restated Certificate of
Incorporation or Bylaws of the Registrant, any agreement, vote of stockholders
or directors or otherwise.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statement No. 000-30093 on Form 8-A, together with the exhibits thereto, which
are incorporated herein by reference pursuant to Item 3(b) to this Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this Registration Statement.
*99.1 Websense, Inc. 2000 Stock Incentive Plan.
*99.2 Websense, Inc. 2000 Employee Stock Purchase Plan.
</TABLE>
- ---------
* Incorporated by reference to our Registration Statement on Form S-1
(333-95619) filed with the Commission on January 28, 2000, as amended on March
3, 2000, March 23, 2000 and March 27, 2000.
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 1933 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 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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 Registrant's 2000
Stock Incentive Plan or the 2000 Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 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.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or 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
1933 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 1933 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 San Diego, State of California on this
28th day of March, 2000.
WEBSENSE, INC.
By: /s/ John B. Carrington
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John B. Carrington
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That each person whose signature appears below constitutes and
appoints John B. Carrington, Chairman, President and Chief Executive Officer,
and Douglas C. Wride, Chief Financial Officer, and each of them, as such
person's true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ John B. Carrington President, Chief Executive Officer and March 28, 2000
- ----------------------------- Chairman of the Board
John B. Carrington (principal executive officer)
/s/ Douglas C. Wride Chief Financial Officer March 28, 2000
- ----------------------------- (principal financial and accounting officer)
Douglas C. Wride
/s/ Robert J. Loarie Director March 28, 2000
- -----------------------------
Robert J. Loarie
/s/ Bruce T. Coleman Director March 28, 2000
- -----------------------------
Bruce T. Coleman
/s/ John C. Stiska Director March 28, 2000
- -----------------------------
John C. Stiska
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Donald B. Milder Director March 28, 2000
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Donald B. Milder
/s/ Gary E. Sutton Director March 28, 2000
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Gary E. Sutton
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
WEBSENSE, INC.
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EXHIBIT INDEX
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Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statement No. 000-30093 on Form 8-A, together with the exhibits thereto, which
are incorporated herein by reference pursuant to Item 3(b) to this Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this Registration Statement.
*99.1 Websense, Inc. 2000 Stock Incentive Plan.
*99.2 Websense, Inc. 2000 Employee Stock Purchase Plan.
* Incorporated by reference to our Registration Statement on Form S-1
(333-95619) filed with the Commission on January 28, 2000, as amended
on March 3, 2000, March 23, 2000 and March 27, 2000.
</TABLE>
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EXHIBIT 5
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
March 28, 2000
Websense, Inc.
10240 Sorrento Valley Road
San Diego, CA 92121
Re: Websense, Inc.- Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel to Websense, Inc., a Delaware
Corporation (the "Company"), in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, of
(i) 4,500,000 shares of Common Stock under the Company's 2000 Stock Incentive
Plan (the "Incentive Plan"), and (ii) 250,000 shares of Common Stock under the
Company's 2000 Employee Stock Purchase Plan (the "Purchase Plan"). All of such
shares are collectively referred to herein as the "Shares".
This opinion is being furnished in accordance with the
requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the
corporate proceedings taken by the Company in connection with the establishment
of the Incentive Plan and the Purchase Plan. Based on such review, we are of the
opinion that, if, as and when the Shares have been issued and sold (and the
consideration therefor received) pursuant to the provisions of option agreements
duly authorized under the Incentive Plan, and in accordance with the stock
purchase agreements under the Purchase Plan, and in accordance with the
Registration Statement, such Shares will be duly authorized, legally issued,
fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5
to the Registration Statement.
This opinion letter is rendered as of the date first written
above and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinion expressed herein. Our opinion is
expressly limited to the matters set forth above and we render no opinion,
whether by implication or otherwise, as to any other matters relating to the
Company, the Incentive Plan, the Purchase Plan or the Shares.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON 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 (Form S-8) pertaining to the 2000 Stock Incentive Plan and 2000
Employee Stock Purchase Plan of Websense, Inc. of our report dated January 14,
2000, with respect to the financial statements and schedule of Websense, Inc.
included in its Registration Statement (Form S-1, No. 333-95619), filed with the
Securites and Exchange Commission on March 27, 2000.
/s/ ERNST & YOUNG LLP
San Diego, California
March 23, 2000
