sv8
As filed with the Securities and Exchange Commission on February 4, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ArcSight, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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| Delaware
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52-2241535 |
(State or Other Jurisdiction
of Incorporation or Organization)
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(I.R.S. Employer
Identification No.) |
5 Results Way
Cupertino, California 95014
(Address of Principal Executive Offices) (Zip Code)
2007 Equity Incentive Plan
2007 Employee Stock Purchase Plan
(Full Titles of the Plans)
Thomas J. Reilly
President, Chief Executive Officer and Director
ArcSight, Inc.
5 Results Way
Cupertino, California 95104
(Name and Address of Agent For Service)
(408) 864-2600
(Telephone Number, including area code, of agent for service)
Please send copies of all communications to:
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| Trâm T. Phi, Esq.
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David A. Bell, Esq. |
| Vice President and General Counsel
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Michael A. Brown, Esq. |
| ArcSight, Inc.
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Fenwick & West LLP |
| 5 Results Way
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801 California Street |
| Cupertino, California 95014
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Mountain View, California 94041 |
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. (Check one):
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| Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Each Class of Securities |
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Amount To Be |
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Offering Price |
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Aggregate Offering |
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Amount of |
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To Be Registered |
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Registered (1) |
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Per Unit |
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Price |
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Registration Fee |
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Common Stock, $0.00001 par value per share |
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1,357,590 (2) |
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$24.1400 (3) |
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$32,772,222.60 (3) |
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$2,336.66 |
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Common Stock, $0.00001 par value per share |
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339,397 (4) |
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$20.5190 (5) |
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$6,964,087.04 (5) |
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$496.54 |
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TOTAL |
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1,696,987 |
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N/A |
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N/A |
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$2,833.20 |
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement shall cover any additional shares of the Registrant’s Common Stock
that become issuable under the 2007 Equity Incentive Plan (the “2007 EIP”) and the 2007
Employee Stock Purchase Plan (the “2007 ESPP”) by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt of consideration
that increases the number of the Registrant’s outstanding shares of Common Stock. |
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Represents additional shares automatically reserved for issuance upon the exercise of
outstanding options under the 2007 EIP. Shares available for issuance under the 2007 EIP were
initially registered on a registration statement on Form S-8 filed with the Securities and
Exchange Commission (“SEC”) on February 14, 2008 (Registration No. 333-149231). In addition,
on January 13, 2009, the Registrant filed with the SEC a registration statement on Form S-8
(File No. 333-156691) to register the issuance of up to an additional 1,260,416 shares of
Common Stock under the 2007 EIP. |
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Estimated solely for the purpose of calculating the registration fee in accordance with Rules
457(c) and (h) under the Securities Act and based upon the average of the high and low sales
prices reported on The NASDAQ Global Market on February 1, 2010. |
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Represents additional shares automatically reserved for issuance upon the exercise of
outstanding options under the 2007 ESPP. Shares available for issuance under the 2007 ESPP
were initially registered on a registration statement on Form S-8
filed with the SEC on February 14, 2008 (Registration No. 333-149231). In addition, on January 13, 2009, the
Registrant filed with the SEC a registration statement on Form S-8 (File No. 333-156691) to
register the issuance of up to an additional 315,104 shares of Common Stock under the 2007 ESPP. |
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Estimated solely for the purpose of calculating the registration fee in accordance with Rules
457(c) and (h) under the Securities Act and based upon the average of the high and low sales
prices reported on The NASDAQ Global Market on February 1, 2010. This amount is multiplied by
85%, which is the percentage of the price per share applicable to purchases under the 2007
ESPP.
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PART I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from
the Registration Statement in accordance with Rule 428 under the Securities Act and the Note to
Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from
the Registration Statement in accordance with Rule 428 under the Securities Act and the Note to
Part I of Form S-8.
I-1
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
ArcSight, Inc. (the “Registrant”) hereby incorporates by reference into this Registration
Statement the following documents previously filed with the SEC:
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The Registrant’s Annual Report on Form 10-K for the year ended April 30, 2009
filed with the SEC on July 9, 2009; |
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended July 31,
2009 filed with the SEC on September 9, 2009; |
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended October
31, 2009 filed with the SEC on December 12, 2009; |
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The Registrant’s Current Reports on Form 8-K filed with the SEC on August 4,
2009 and November 24, 2009; and |
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The description of the Registrant’s Common Stock contained in the Registrant’s
Registration Statement on Form 8-A filed with the SEC on January 22, 2008 under Section
12(b) 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 subsequently filed by the Registrant 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 offered by this Registration Statement have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part of this Registration Statement from the date of the filing
of such documents.
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 under certain
circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General
Corporation Law are sufficiently broad to permit indemnification under certain circumstances for
liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of
incorporation contains provisions that eliminate the personal liability of its directors for
monetary damages for any breach of fiduciary duties as a director, except liability for the
following:
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any breach of the director’s duty of loyalty to the Registrant or its
stockholders; |
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acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law; |
II-1
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under Section 174 of the Delaware General Corporation Law (regarding unlawful
dividends and stock purchases); or |
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any transaction from which the director derived an improper personal benefit. |
As permitted by the Delaware General Corporation Law, the Registrant’s restated bylaws provide
that:
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the Registrant is required to indemnify its directors and executive officers to
the fullest extent permitted by the Delaware General Corporation Law, subject to very
limited exceptions; |
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the Registrant may indemnify its other employees and agents as set forth in the
Delaware General Corporation Law; |
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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 very limited
exceptions; and |
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the rights conferred in the bylaws are not exclusive. |
The Registrant has entered into indemnity agreements with its current directors and executive
officers to provide these directors and executive officers additional contractual assurances
regarding the scope of the indemnification set forth in the Registrant’s restated certificate of
incorporation and restated bylaws and to provide additional procedural protections. The
indemnification provisions in the Registrant’s restated certificate of incorporation, restated
bylaws and the indemnification agreements entered into or to be entered into between the Registrant
and its directors and executive officers may be sufficiently broad to permit indemnification of the
Registrant’s directors and executive officers for liabilities arising under the Securities Act.
The Registrant currently carries liability insurance for its directors and executive officers.
One of Registrant’s directors (Ted Schlein) is also indemnified by his employer with regard to
his service on the Registrant’s board of directors.
See also the undertakings set out in response to Item 9 hereof.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Filing |
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Exhibit Description |
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Form |
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File No. |
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Exhibit |
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Herewith |
4.1
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Form of Amended and Restated Certificate of
Incorporation of the Registrant.
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S-1/A
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333-145974
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3.2 |
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11/23/07 |
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4.2
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Form of Amended and Restated Bylaws of the Registrant.
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S-1/A
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333-145974
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3.4 |
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11/23/07 |
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4.3
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Form of Registrant’s common stock certificate.
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S-1/A
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333-145974
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4.1 |
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11/23/07 |
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4.4
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Amended and Restated Investors’ Rights Agreement, dated
as of October 24, 2002, between ArcSight, Inc. and
certain security holders of ArcSight, Inc.
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S-1
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333-145974
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4.2 |
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9/11/07 |
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4.5
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2007 Equity Incentive Plan.
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S-1/A
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333-145974
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10.6 |
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11/23/07 |
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II-2
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Filing |
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Provided |
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Exhibit Description |
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Form |
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File No. |
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Exhibit |
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Date |
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Herewith |
4.6
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2007 Employee Stock Purchase Plan.
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S-1/A
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333-145974
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10.8 |
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11/23/07 |
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5.1
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Opinion of Fenwick & West LLP.
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23.1
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Consent Independent Registered Public Accounting Firm.
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23.2
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Consent of Fenwick & West LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney (see page II-5 of this Registration
Statement).
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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 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 this 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 SEC 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 clauses (1)(i) and (1)(ii) above do not apply
if the information required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the SEC 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 that remain unsold at the termination of the offering.
(b) 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 Section 15(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.
(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 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 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,
II-3
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-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Cupertino, State of California, on February 4, 2010.
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ARCSIGHT, INC.
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By: |
/s/ Thomas J. Reilly
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Thomas J. Reilly |
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President, Chief Executive Officer and
Director |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Stewart Grierson and Trâm T. Phi, and each of them acting individually, as
his or her true and lawful attorneys-in-fact and agents with full power of substitution, for him or
her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8,
and to file the same, with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof. This Power of
Attorney may be signed in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts shall together constitute one and the same
instrument.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated.
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Title |
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Date |
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| /s/ Thomas J. Reilly
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President, Chief Executive Officer and
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February 4, 2010 |
| Thomas J. Reilly
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Director
(Principal Executive Officer) |
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| /s/ Stewart Grierson
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Chief Financial Officer
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February 4, 2010 |
| Stewart Grierson
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(Principal Accounting
and Financial Officer) |
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| /s/ Sandra Bergeron
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Director
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February 4, 2010 |
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| Sandra Bergeron |
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| /s/ William P. Crowell
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Director
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February 4, 2010 |
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| William P. Crowell |
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| /s/ E. Stanton McKee, Jr.
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Director
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February 4, 2010 |
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| E. Stanton McKee, Jr. |
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II-5
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| Signature |
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| /s/ Craig Ramsey
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Director
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February 4, 2010 |
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| Craig Ramsey |
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| /s/ Scott A. Ryles
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Director
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February 4, 2010 |
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| Scott A. Ryles |
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| /s/ Ted Schlein
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Director
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February 4, 2010 |
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| Ted Schlein |
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| /s/ Roger S. Siboni
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Director
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February 4, 2010 |
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| Roger S. Siboni |
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Director
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| Ernest von Simson |
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II-6
EXHIBIT INDEX
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| Exhibit |
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Filing |
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Provided |
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Exhibit Description |
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Form |
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File No. |
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Exhibit |
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Date |
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Herewith |
4.1
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Form of Amended and Restated Certificate of
Incorporation of the Registrant.
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S-1/A
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333-145974
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3.2 |
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11/23/07 |
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4.2
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Form of Amended and Restated Bylaws of the Registrant.
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S-1/A
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333-145974
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3.4 |
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11/23/07 |
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4.3
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Form of Registrant’s common stock certificate.
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S-1/A
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333-145974
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4.1 |
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11/23/07 |
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4.4
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Amended and Restated Investors’ Rights Agreement, dated
as of October 24, 2002, between ArcSight, Inc. and
certain security holders of ArcSight, Inc.
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S-1
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333-145974
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4.2 |
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9/11/07 |
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4.5
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2007 Equity Incentive Plan.
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S-1/A
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333-145974
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10.6 |
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11/23/07 |
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4.6
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2007 Employee Stock Purchase Plan.
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S-1/A
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333-145974
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10.8 |
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11/23/07 |
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5.1
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Opinion of Fenwick & West LLP.
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X |
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23.1
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Consent of Independent Registered Public Accounting Firm.
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23.2
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Consent of Fenwick & West LLP (included in Exhibit 5.1).
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X |
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24.1
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Power of Attorney (see page II-5 of this Registration
Statement).
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X |