1
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROGRESS SOFTWARE CORPORATION
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts
--------------------------------------------------------------
(State or Other Jurisdiction of Incorporation or Organization)
04-2746201
------------------------------------
(I.R.S. Employer Identification No.)
14 Oak Park, Bedford, Massachusetts 01730
---------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
PROGRESS SOFTWARE CORPORATION
1997 STOCK INCENTIVE PLAN
-------------------------
(Full Title of the Plan)
Joseph W. Alsop, President
Progress Software Corporation
14 Oak Park
Bedford, Massachusetts 01730
---------------------------------------
(Name and Address of Agent for Service)
(781) 280-4000
-------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
WITH COPIES TO:
Robert W. Sweet, Jr., Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
CALCULATION OF REGISTRATION FEE
-------------------------------
============== ============== ============== ============== ==============
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
============== ============== ============== ============== ==============
Common Stock, 1,500,000 $29(2) $43,500,000(2) $12,093.00(2)
$0.01 par shares(1)
value per
share
============== ============== ============== ============== ==============
2
(1) A total of 2,520,000 shares have been reserved for issuance under the
Company's 1997 Stock Incentive Plan, 680,000 of which were previously
registered under Form S-8 Registration File No. 333-41393. Pursuant to Rule
416(a) under the Securities Act of 1933, as amended, and the antidilution
provisions of the Company's 1997 Stock Incentive Plan, the 680,000
previously registered shares were adjusted to 1,020,000 registered shares
on the effective date of the Company's 50% stock dividend, July 13, 1998.
(2) The total number of shares of Common Stock to be registered are available
to be offered under the 1997 Stock Incentive Plan at prices not presently
determinable. Pursuant to Rule 457 (c) and (h), the offering price per
share is estimated solely for the purposes of determining the aggregate
offering price and the registration fee and is based on $29, the average of
the high and low sale prices of the Common Stock as reported by the Nasdaq
Stock Market on June 8, 1999.
3
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") are incorporated in this Registration Statement by reference:
(a) Progress Software Corporation's (the "Company's" or the "Registrant's")
Annual Report on Form 10-K for the fiscal year ended November 30, 1998 (file
number 0-19417) as filed with the Commission on February 24, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the Quarterly Period
ended February 28, 1999 (file number 0-19417) as filed with the Commission on
April 13, 1999;
(c) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on July 22, 1991
under Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act"),
including any amendment or description filed for the purpose of updating such
description; and
(d) all documents subsequently filed by the Company 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 have been
sold or which 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon for
the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6 of the Company's Restated Articles of Organization eliminates the
personal liability of a director to the Company or its stockholders for monetary
damages arising out of such director's breach of fiduciary duty as a director of
the Company to the maximum extent permitted by Massachusetts law. Section
13(b)(1-1/2) of Chapter 156B of the Massachusetts Business Corporation Law
provides that the articles of organization of a corporation may state a
provision eliminating the personal liability of a director to a corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director; provided, however, that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts of commission not in good
faith or which involve intentional misconduct or knowing violation of law, (iii)
under section 61 or 62 of the Massachusetts Business Corporation Law
4
dealing with liability for unauthorized distributions and loans to insiders,
respectively, or (iv) for any transaction from which the director derived an
improper personal benefit.
Article VII of the Company's By-Laws provides that the Company shall
indemnify its officers and directors, and directors, officers, trustees,
employees and other agents of any organization in which the Company owns shares
or of which it is a creditor, against all liabilities and expenses reasonably
incurred by such officers, directors, employees and other agents in connection
with the defense or disposition of any action, suit or proceeding in which they
may be involved by reason of having been a director, officer of employee or
other agent, except with respect to any matter as to which they shall have been
adjudicated not to have acted in good faith and reasonably believe that their
action was in the best interests of the Company. Section 67 of the Massachusetts
Business Corporation Law authorizes a corporation to indemnify its directors,
officers, employees and other agents unless such person shall have been
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that such action was in the best interests of the corporation.
The effect of these provisions would be to permit such indemnification by
the Company for liabilities arising out of the Securities Act of 1933, as
amended.
The Company also maintains an officers and directors liability insurance
policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Progress Software Corporation 1997 Stock Incentive Plan
5.1 Opinion of Counsel
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
ITEM 9. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
2. The undersigned registrant hereby undertakes that,
(a) To file, during any period in which offers or sales are being
made, a post-effective
5
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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; 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)(i) and (a)(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
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
6
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 Town of Bedford, Massachusetts, on this 11th day of June,
1999.
Progress Software Corporation
By: /s/ JOSEPH W. ALSOP
--------------------
Joseph W. Alsop,
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Joseph W. Alsop, and Norman R. Robertson, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his 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 the same, with all exhibits thereto,
and all 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 he may
deem necessary or advisable to be done in connection with this Registration
Statement, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or any substitute or substitutes for him, any or all of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of dates indicated.
SIGNATURE TITLE DATE
/s/ JOSEPH W. ALSOP President and Director June 11, 1999
- ------------------- (Principal Executive Officer)
Joseph W. Alsop
7
SIGNATURE TITLE DATE
/s/ NORMAN R. ROBERTSON Vice President, Finance and June 11, 1999
- ------------------------ Administration and
Norman R. Robertson Chief Financial Officer
(Principal Financial Officer)
/s/ DAVID H. BENTON, JR. Vice President and June 11, 1999
- ------------------------ Corporate Controller
David H. Benton, Jr. (Principal Accounting Officer)
/s/ LARRY R. HARRIS Director June 11, 1999
- ------------------------
Larry R. Harris
/s/ ROGER J. HEINEN, JR. Director June 11, 1999
- ------------------------
Roger J. Heinen, Jr.
/s/ MICHAEL L. MARK Director June 11, 1999
- ------------------------
Michael L. Mark
/s/ ARTHUR J. MARKS Director June 11, 1999
- ------------------------
Arthur J. Marks
/s/ SCOTT A. MCGREGOR Director June 11, 1999
- ------------------------
Scott A. McGregor
/s/ AMRAM RASIEL Director June 11, 1999
- ------------------------
Amram Rasiel
8
EXHIBIT INDEX
-------------
EXHIBIT
NO. DESCRIPTION
4.1 Progress Software Corporation 1997 Stock Incentive Plan
5.1 Opinion of Counsel
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)