-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NZsMdgwRnv842RXc6A/Ls5UTMwR7uFmsQqaEi2kzwsIyE/aG7y7F530qMxVUosgB llf5sP7dZcDY1LOLpgzj1w== /in/edgar/work/0000892569-00-000498/0000892569-00-000498.txt : 20001110 0000892569-00-000498.hdr.sgml : 20001110 ACCESSION NUMBER: 0000892569-00-000498 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20001109 EFFECTIVENESS DATE: 20001109 FILER: COMPANY DATA: COMPANY CONFORMED NAME: QUEST SOFTWARE INC CENTRAL INDEX KEY: 0001088033 STANDARD INDUSTRIAL CLASSIFICATION: [7372 ] IRS NUMBER: 330231678 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49668 FILM NUMBER: 757706 BUSINESS ADDRESS: STREET 1: 8001 IRVINE CENTER DRIVE CITY: IRVINE STATE: CA ZIP: 92618 BUSINESS PHONE: 9497548000 MAIL ADDRESS: STREET 1: 8001 IRVINE CENTER DRIVE CITY: IRVINE STATE: CA ZIP: 92618 S-8 1 a66769s-8.txt FORM S-8 1 As filed with the Securities and Exchange Commission on November 9, 2000 Registration No. 333-____________ ================================================================================ 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
========================================================================================================================= 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 - ------------------------------------------------------------------------------------------------------------------------- Common Stock, no par value 6,697 shares $38.57 $258,304 $68.19 =========================================================================================================================
(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. 2 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; II-1 3 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 - -------------- ------- 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) II-2 4 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. II-3 5 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 --------------------------- 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.
Signature Title Date - --------- ----- ---- /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
II-4 6 EXHIBIT INDEX Exhibit Number Exhibit - -------------- ------- 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) EX-5 2 a66769ex5.txt EXHIBIT 5 1 EXHIBIT 5 OPINION AND CONSENT OF GENERAL COUNSEL QUEST SOFTWARE, INC. 8001 Irvine Center Drive Irvine, California 92618 Phone (949) 754-8000 November 9, 2000 Quest Software, Inc. 8001 Irvine Center Drive Irvine, CA 92618 Re: Registration Statement on Form S-8 Dear Ladies and Gentlemen: As General Counsel of Quest Software, Inc. a California corporation (the "Company"), I have participated in the corporate and other proceedings taken by the Company in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 6,697 shares of common stock (the "Shares") for issuance under the OnWire Technologies, Inc. Stock Option Plan (the "Plan"). I have reviewed the Company's charter documents and the corporate proceedings taken by the Company in connection with the Plan, and have examined such documents as I have deemed necessary for purposes of this opinion. Based on such review, I am of the opinion that, if, as and when the Shares have been issued and sold (and the consideration therefor received) pursuant to (a) the provisions of stock option agreements duly authorized under the Plan and in accordance with the Registration Statement, or (b) duly authorized direct stock issuances in accordance with the Plan and in accordance with the Registration Statement, such Shares will be duly authorized, legally issued, fully paid and nonassessable. I consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. QUEST SOFTWARE, INC. By: /s/ J. MICHAEL VAUGHN ------------------------------ J. Michael Vaughn, General Counsel EX-23.1 3 a66769ex23-1.txt EXHIBIT 23.1 1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Quest Software, Inc. on Form S-8 of our reports dated February 1, 2000 (except for Note 12 as to which the date is March 9, 2000), appearing in the Annual Report on Form 10-K of Quest Software, Inc. for the year ended December 31, 1999. /s/ DELOITTE & TOUCHE LLP - ----------------------------------- DELOITTE & TOUCHE LLP Costa Mesa, California November 3, 2000 EX-23.2 4 a66769ex23-2.txt EXHIBIT 23.2 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Quest Software, Inc. on Form S-8 of our report dated February 22, 2000, relating to the financial statements of Foglight Software, Inc. appearing in the Current Report on Form 8-K of Quest Software, Inc. dated January 7, 2000 (as amended on February 23, 2000). /s/ DELOITTE & TOUCHE LLP - -------------------------------- DELOITTE & TOUCHE LLP Costa Mesa, California November 3, 2000 EX-23.3 5 a66769ex23-3.txt EXHIBIT 23.3 1 EXHIBIT 23.3 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement on Form S-8 of Quest Software Inc. of our report dated January 28, 2000, except as to notes 16 and 17, which are as of September 29, 2000, relating to the financial statements of Fastlane Technologies Inc. appearing in an amendment to the Current Report on Form 8-K of Quest Software, Inc. dated September 11, 2000 (filed on October 5, 2000). /s/ DELOITTE & TOUCHE LLP Ottawa, Ontario November 3, 2000 EX-23.4 6 a66769ex23-4.txt EXHIBIT 23.4 1 EXHIBIT 23.4 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement on Form S-8 of Quest Software Inc. of our report dated September 29, 1999, relating to the financial statements of MBR Technologies Inc., which appears in an amendment to the Current Report on Form 8-K of Quest Software, Inc. dated December 17, 1999 (filed on February 18, 2000). /s/ Swenson Advisors, LLP SWENSON ADVISORS, LLP. San Diego, California November 7, 2000 -----END PRIVACY-ENHANCED MESSAGE-----