Securities Registration: Employee Benefit Plan (s-8)
February 24 2017 - 4:34PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on February 24, 2017
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
Under
The
Securities Act of 1933
Qualys, Inc.
(Exact
name of Registrant as specified in its charter)
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Delaware
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77-0534145
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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1600 Bridge Parkway
Redwood City, California 94065
(Address of principal executive offices, including zip code)
2012 Equity Incentive Plan
(Full title of the plan)
Philippe
Courtot
Chairman, President and Chief Executive Officer
Qualys, Inc.
1600 Bridge
Parkway
Redwood City, California 94065
(650)
801-6100
(Name, address and telephone number, including area code, of agent for service)
Copies to:
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Jeffrey D. Saper
J. Randall Lewis
Wilson
Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304
(650)
493-9300
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Bruce K. Posey
Vice President, General Counsel and
Corporate Secretary
Qualys, Inc
1600 Bridge
Parkway
Redwood City, California 94065
(650)
801-6100
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule
12b-2
of the Exchange Act.
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (do not check if a smaller reporting company)
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Smaller reporting company
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☐
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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered (1)
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.001 par value per share:
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2012 Equity Incentive Plan
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1,792,050(2)
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$34.48(3)
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$61,789,884
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$7,161.45
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TOTAL:
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1,792,050
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$61,789,884
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$7,161.45
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrants common stock that become issuable under the 2012 Equity
Incentive Plan (the 2012 Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrants outstanding shares of
common stock.
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(2)
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Represents an automatic annual increase of 1,792,050 shares of common stock on January 1, 2017 to the number of shares reserved for issuance pursuant to future awards under, and which annual increase is provided
for in, the 2012 Plan.
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(3)
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Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $34.48 per share, which represents the average of the high and low
sale prices of the Registrants common stock as reported on The NASDAQ Stock Market on February 16, 2017.
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EXPLANATORY NOTE
This Registration Statement on Form
S-8
registers additional shares of common stock of Qualys, Inc.
(the Registrant) under the Registrants 2012 Equity Incentive Plan (the 2012 Plan). The number of shares of the Registrants common stock available for grant and issuance under the 2012 Plan is subject to an annual
increase on the first day of each fiscal year starting on January 1, 2014, by an amount equal to five percent (5%) of the number of shares of the Registrants common stock issued and outstanding on each December 31 immediately prior
to the date of increase, but not more than 3,050,000 shares, unless the Registrants board of directors, in its discretion, determines to make a smaller increase (the provision of the 2012 Plan allowing for this annual increase is referred to
as the Evergreen Provision). On January 1, 2017, the number of shares of the Registrants common stock available for grant and issuance under the 2012 Plan increased by 1,792,050 shares. This Registration Statement registers
these additional 1,792,050 shares of the Registrants common stock, which were available for grant and issuance under the 2012 Plan pursuant to the Evergreen Provision as of January 1, 2017.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified by Part I, Items 1 and 2, of Form
S-8
have been or will be delivered to participants in the plans covered by this Registration Statement, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
Commission) under the Securities Act of 1933, as amended (the Securities Act) and the instructions to Form
S-8.
In accordance with the rules and regulations of the Commission and the
instructions to Form
S-8,
such documents are not being filed with the Commission either as part of the Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The Registrant hereby incorporates by
reference into this Registration Statement the following documents previously filed with the Commission:
(1) The Registrants Annual
Report on Form
10-K
for the fiscal year ended December 31, 2016, filed with the Commission on February 24, 2017, pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the
Exchange Act);
(2) The Registrants Current Report on Form
8-K
filed with the
Commission on February 8, 2017, except to the extent that information therein is furnished and not filed with the Commission; and
(3) The description of the Registrants common stock contained in the Companys Registration Statement on Form
8-A
(File
No. 001-35662)
filed with the Commission on September 24, 2012, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that 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;
provided
,
however
, that documents or information deemed to have been
furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. 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.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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As of the date of the filing of this
Registration Statement, an attorney associated with Wilson Sonsini Goodrich & Rosati, P.C. beneficially owned an aggregate of 14,078 shares of the Registrants common stock.
Item 6.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware General
Corporation Law authorizes a corporations board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents under certain circumstances.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrants Amended and Restated Certificate of
Incorporation, as currently in effect, provides that the Registrant will indemnify its directors and officers, and may indemnify its employees and other agents, to the fullest extent permitted by the Delaware General Corporation Law. If the Delaware
General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of the Registrants directors will be eliminated or limited to the fullest extent
permitted by Delaware General Corporation Law, as so amended.
In addition, as permitted by Section 145 of the Delaware General
Corporation Law, the Amended and Restated Bylaws of the Registrant, as currently in effect, provide that:
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The Registrant is required to indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrants request, to the fullest extent
permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe such persons conduct was unlawful.
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The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
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The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is
ultimately determined that such person is not entitled to indemnification.
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The Registrant will not be obligated pursuant to the Amended and Restated Bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the
Registrants board of directors or brought to enforce a right to indemnification.
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The rights conferred in the Amended and Restated Certificate of Incorporation and Bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers,
employees and agents and to obtain insurance to indemnify such persons.
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The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees and agents.
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In addition, the Registrants policy is to enter into separate indemnification agreements with each of its directors and officers that
require the Registrant to indemnify its directors and officers, to the maximum extent permitted by applicable law, and also provide for certain procedural protections.
The indemnification obligations described above may be sufficiently broad to permit the indemnification of the Registrants directors and
officers for liabilities (including reimbursement for expenses incurred) arising under the Securities Act.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Form
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File No.
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Exhibit
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Filing Date
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4.1*
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Form of common stock certificate
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S-1/A
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333-182027
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4.1
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September 11, 2012
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4.2*
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2012 Equity Incentive Plan and forms of agreements thereunder
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S-1/A
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333-182027
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10.2
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September 11, 2012
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
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23.1
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Consent of Grant Thornton LLP, independent registered public accounting firm
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1)
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24.1
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Power of attorney (contained on signature page hereto)
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Incorporated by reference to exhibits filed with the Registrants Registration Statement on Form
S-1,
as amended (Registration
No. 333-182027),
as declared effective by the Commission on September 27, 2012.
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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 Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee
table in the effective Registration Statement; and
(iii) 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.
Provided, however
, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in 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.
(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.
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B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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 the Registrant pursuant to the foregoing provisions, 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 Redwood
City, State of California, on the 24th day of February, 2017.
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QUALYS, INC.
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By:
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/s/ Philippe F. Courtot
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Name: Philippe F. Courtot
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Title: Chairman, President and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints Philippe F. Courtot and Melissa B. Fisher, jointly and severally, as his or her true and lawful
attorneys-in-fact
and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign the Registration Statement on Form
S-8
of Qualys, Inc., and any or all amendments (including
post-effective amendments) thereto, and to file the 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 full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or his, her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form
S-8
has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Philippe F. Courtot
Philippe F. Courtot
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Chairman, President and Chief Executive Officer (Principal Executive Officer)
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February 24, 2017
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/s/ Melissa B. Fisher
Melissa B. Fisher
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Chief Financial Officer (Principal Financial and Accounting Officer)
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February 24, 2017
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/s/ Sandra E. Bergeron
Sandra E. Bergeron
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Director
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February 24, 2017
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/s/ Donald R. Dixon
Donald R. Dixon
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Director
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February 24, 2017
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/s/ Jeffrey P. Hank
Jeffrey P. Hank
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Director
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February 24, 2017
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/s/ Todd P. Headley
Todd P. Headley
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Director
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February 24, 2017
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/s/ General Peter Pace
General Peter Pace
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Director
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February 24, 2017
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/s/ Kristi M. Rogers
Kristi M. Rogers
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Director
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February 24, 2017
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/s/ Howard A. Schmidt
Howard A. Schmidt
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Director
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February 24, 2017
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-5-
INDEX TO EXHIBITS
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Form
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File No.
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Exhibit
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Filing Date
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4.1*
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Form of common stock certificate
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S-1/A
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333-182027
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4.1
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September 11, 2012
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4.2*
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2012 Equity Incentive Plan and forms of agreements thereunder
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S-1/A
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333-182027
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10.2
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September 11, 2012
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
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23.1
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Consent of Grant Thornton LLP, independent registered public accounting firm
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1)
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24.1
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Power of attorney (contained on signature page hereto)
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Incorporated by reference to exhibits filed with the Registrants Registration Statement on Form
S-1,
as amended (Registration
No. 333-182027),
as declared effective by the Commission on September 27, 2012.
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