As filed with the Securities and Exchange Commission on September 21, 2007
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNDER
THE SECURITIES ACT OF 1933
Progress Software Corporation
(Exact Name of Registrant as Specified in Its Charter)
| Massachusetts | 04-2746201 | |
| (State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) | |
| 14 Oak Park, Bedford, Massachusetts | 01730 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Progress Software Corporation 1991 Employee Stock Purchase Plan
Progress Software Corporation 1997 Stock Incentive Plan
Progress Software Corporation 2004 Inducement Stock Plan
(Full Title of the Plan)
Progress Software Corporation 1997 Stock Incentive Plan
Progress Software Corporation 2004 Inducement Stock Plan
(Full Title of the Plan)
Joseph W. Alsop
Progress Software Corporation
14 Oak Park
Bedford, Massachusetts 01730
(Name and Address of Agent for Service)
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)
(Telephone Number, Including Area Code, of Agent For Service)
WITH A COPY TO:
Anthony J. Medaglia, Jr.
Goodwin Procter LLP
53 State Street
Boston, Massachusetts 02109
(617) 570-1000
Anthony J. Medaglia, Jr.
Goodwin Procter LLP
53 State Street
Boston, Massachusetts 02109
(617) 570-1000
CALCULATION OF REGISTRATION FEE
| Title of Each Class of | Amount | Proposed Maximum | Proposed Maximum | Amount of | ||||||||||||||||||
| Securities To Be | To Be | Offering Price | Aggregate | Registration | ||||||||||||||||||
| Registered | Registered(1) | Per Share | Offering Price | Fee | ||||||||||||||||||
Common stock, $.01 par value per share |
800,000 shares(2) | $ | 31.03 | (3) | $ | 24,824,000 | (3) | $ | 763 | |||||||||||||
Common stock, $.01 par value per share |
694,466 shares(4) | $ | 31.03 | (3) | $ | 21,549,280 | (3) | $ | 662 | |||||||||||||
| 1,305,534 shares(4) | $ | 28.53 | (5) | $ | 37,246,886 | (5) | $ | 1,144 | ||||||||||||||
Common stock, $.01 par value per share |
326,253 shares(6) | $ | 31.03 | (3) | $ | 10,123,631 | (3) | $ | 311 | |||||||||||||
| 173,747 shares(6) | $ | 28.41 | (7) | $ | 4,936,152 | (7) | $ | 152 | ||||||||||||||
Total |
3,300,000 shares | $ | 98,679,949 | $ | 3,032 | |||||||||||||||||
| (1) | This registration statement also relates to such indeterminate
number of additional shares of common stock of Progress Software
Corporation as may be required pursuant to each of its 1991
Employee Stock Purchase Plan, 1997 Stock Incentive Plan and 2004
Inducement Stock Plan in the event of a reorganization,
recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar event. |
|
| (2) | Represents shares of common stock issuable pursuant to the Progress Software Corporation 1991 Employee Stock Purchase Plan. |
|
| (3) | Calculated pursuant to Rules 457(c) and (h)(1) under the Securities Act of 1933 based on the average of the high and low
sale prices of the common stock as reported on the Nasdaq Global Select Market on September 19, 2007. |
|
| (4) | Represents shares of common stock issuable pursuant to the Progress Software Corporation 1997 Stock Incentive Plan. |
|
| (5) | Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933
solely for the purpose of determining the registration fee. The
proposed maximum offering price per share and maximum aggregate
offering price are based upon the weighted average exercise price of
the related options granted under the Progress Software Corporation
1997 Stock Incentive Plan. |
|
| (6) | Represents shares of common stock issuable pursuant to the Progress Software Corporation 2004 Inducement Stock Plan. |
|
| (7) | Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933
solely for the purpose of determining the registration fee. The
proposed maximum offering price per share and maximum aggregate
offering price are based upon the weighted average exercise price of
the related options granted under the Progress Software Corporation
2004 Inducement Stock Plan. |
EXPLANATORY NOTE
This registration statement is being filed to register an additional 800,000 shares of common
stock of Progress Software Corporation issuable under our 1991 Employee Stock Purchase Plan. These
shares are in addition to 1,700,000 shares of our common stock registered under our 1991 Employee
Stock Purchase Plan pursuant to a registration statement on Form S-8, SEC File No. 333-122962,
filed with the Securities and Exchange Commission on February 23, 2005; 300,000 shares of our
common stock registered under our 1991 Employee Stock Purchase Plan pursuant to a registration
statement on Form S-8, SEC File No. 333-80571, filed with the SEC on June 11, 1999; and 150,000
shares of our common stock registered under our 1991 Employee Stock Purchase Plan pursuant to a
registration statement on Form S-8, SEC File No. 33-41752, filed with the SEC on July 30, 1991.
Pursuant to Rule 416(a) under the Securities Act of 1933 and the antidilution provisions of our
1991 Employee Stock Purchase Plan, the 300,000 shares previously registered were adjusted to
600,000 shares on January 21, 2000, the effective date of our 100% stock dividend, and the 150,000
shares previously registered were adjusted to 300,000 shares on November 27, 1995, the effective
date of our 100% stock dividend; further adjusted to 450,000 shares on July 13, 1998, the effective
date of our 50% stock dividend; and further adjusted again to 900,000 shares on January 21, 2000,
the effective date of our 100% stock dividend.
This registration statement also covers an additional 2,000,000 shares of our common stock
issuable under our 1997 Stock Incentive Plan. These shares are in addition to 2,500,000 shares of
our common stock issuable under our 1997 Stock Incentive Plan pursuant to a registration statement
on Form S-8, SEC File No. 333-122962, filed with the SEC on February 23, 2005; 1,500,000 shares of
our common stock registered under our 1997 Stock Incentive Plan pursuant to a registration
statement on Form S-8, SEC File No. 333-80559, filed with the SEC on June 11, 1999; and 680,000
shares of our common stock registered under our 1997 Stock Incentive Plan pursuant to a
registration statement on Form S-8, SEC File No. 333-41393, filed with the SEC on December 3, 1997.
Pursuant to Rule 416(a) under the Securities Act of 1933 and the antidilution provisions of our
1997 Stock Incentive Plan, the 1,500,000 shares previously registered were adjusted to 3,000,000
shares on January 21, 2000, the effective date of our 100% stock dividend, and the 680,000 shares
previously registered were adjusted to 1,020,000 shares on July 13, 1998, the effective date of our
50% stock dividend; and further adjusted to 2,040,000 shares on January 21, 2000, the effective
date of our 100% stock dividend.
This registration statement also covers an additional 500,000 shares of our common stock
issuable under our 2004 Inducement Stock Plan. These shares are in addition to 200,000 shares of
our common stock registered under our 2004 Inducement Stock Plan pursuant to a registration
statement on Form S-8, SEC File No. 333-122962, filed with the SEC on February 23, 2005.
The contents of our registration statements on Form S-8, SEC File Nos. 333-122962, 333-80571,
333-80559, 333-41393 and 33-41752, are incorporated herein by reference, except as otherwise noted
below.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 5. Interest of Named Experts and Counsel
The validity of the securities we are registering under this registration statement is being
passed upon by Goodwin Procter LLP, Boston, Massachusetts. Anthony J. Medaglia, Jr., a
partner of Goodwin Procter LLP, is an Assistant Secretary of our company.
Item 8. Exhibits
| Filed with | Incorporated by Reference | |||||||||||||
| Exhibit | this Form | Exhibit | ||||||||||||
| No. | Description | S-8 | Form | Filing Date | No. | |||||||||
| 4.1 | Restated Articles of Organization, as amended
|
8-K | May 1, 2006 | 3.1 | ||||||||||
| 4.2 | By-Laws, as amended and restated
|
8-K | May 1, 2006 | 3.2 | ||||||||||
| 4.3 | Specimen Certificate for the Common Stock
|
8-K | May 1, 2006 | 4.1 | ||||||||||
| 5.1 | Opinion of Goodwin Procter LLP
|
X | ||||||||||||
| 23.1 | Consent of Deloitte & Touche LLP
|
X | ||||||||||||
| 23.2 | Consent of Goodwin Procter LLP (included in Exhibit 5.1)
|
X | ||||||||||||
| 24.1 | Powers of Attorney (contained on the signature page of
this registration statement)
|
X | ||||||||||||
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 Bedford, state of Massachusetts, on this 21st day of
September, 2007.
| PROGRESS SOFTWARE CORPORATION |
||||
| By: | /s/ Norman R. Robertson | |||
| Norman R. Robertson | ||||
| Senior Vice President, Finance and Administration and Chief Financial Officer | ||||
KNOW ALL BY THESE PRESENTS that each individual whose signature appears below hereby
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 (or any registration statement for the same offering
that is effective upon filing pursuant to Rule 462(b) under the Securities Act), 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 which they, or any of them, 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
said attorneys-in-fact and agents or any of them, or any substitute or substitutes for him, or any
or all of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed below by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Joseph W. Alsop |
President, Chief Executive Officer and Director (Principal Executive Officer) |
September 21, 2007 | ||
| /s/ Norman R. Robertson |
Senior Vice President, Finance and Administration and Chief Financial Officer (Principal Financial Officer) |
September 21, 2007 | ||
| /s/ David H. Benton, Jr. |
Vice President and Corporate Controller (Principal Accounting Officer) |
September 21, 2007 | ||
| /s/ Barry N. Bycoff | Director | September 21, 2007 | ||
| Barry N. Bycoff | ||||
| /s/ Roger J. Heinen, Jr. | Director | September 21, 2007 | ||
| Roger J. Heinen, Jr. | ||||
| /s/ Charles F. Kane | Director | September 21, 2007 | ||
| Charles F. Kane | ||||
| /s/ Michael L. Mark | Director | September 21, 2007 | ||
| Michael L. Mark | ||||
| /s/ Scott A. McGregor | Director | September 21, 2007 | ||
| Scott A. McGregor |
EXHIBIT INDEX
| Filed with | Incorporated by Reference | |||||||||||||
| Exhibit | this Form | Exhibit | ||||||||||||
| No. | Description | S-8 | Form | Filing Date | No. | |||||||||
| 4.1 | Restated Articles of Organization, as amended
|
8-K | May 1, 2006 | 3.1 | ||||||||||
| 4.2 | By-Laws, as amended and restated
|
8-K | May 1, 2006 | 3.2 | ||||||||||
| 4.3 | Specimen Certificate for the Common Stock
|
8-K | May 1, 2006 | 4.1 | ||||||||||
| 5.1 | Opinion of Goodwin Procter LLP
|
X | ||||||||||||
| 23.1 | Consent of Deloitte & Touche LLP
|
X | ||||||||||||
| 23.2 | Consent of Goodwin Procter LLP (included in Exhibit 5.1)
|
X | ||||||||||||
| 24.1 | Powers of Attorney (contained on the signature page of
this registration statement)
|
X | ||||||||||||
Exhibit 5.1
|
Goodwin Procter LLP Counselors at Law Exchange Place Boston, MA 02109 |
T: 617.570.1000 F: 617.523.1231 goodwinprocter.com |
September 21, 2007
Progress Software Corporation
14 Oak Park
Bedford, MA 01730
14 Oak Park
Bedford, MA 01730
Re: Securities Being Registered under Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion letter is furnished to you in connection with your filing of a Registration
Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as
amended (the “Securities Act”), on the date hereof relating to an aggregate of 3,300,000 shares
(the “Shares”) of Common Stock, $.01 par value per share, of Progress Software Corporation, a
Massachusetts corporation (the “Company”), that may be issued pursuant to the Company’s 1991
Employee Stock Purchase Plan, 1997 Stock Incentive Plan and 2004 Inducement Stock Plan
(collectively, the “Plans”).
We have reviewed such documents and made such examination of law as we have deemed appropriate
to give the opinion expressed below. We have relied, without independent verification, on
certificates of public officials and, as to matters of fact material to the opinion set forth
below, on certificates of officers of the Company.
The opinion expressed below is limited to Massachusetts law.
For purposes of the opinion expressed below, we have assumed that a sufficient number of
authorized but unissued shares of the Company’s Common Stock will be available for issuance when
the Shares are issued.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and,
upon issuance and delivery against payment therefor in accordance with the terms of the Plans, will
be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration
Statement. In giving our consent, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Very truly yours, |
||||
| /s/ Goodwin Procter LLP | ||||
| GOODWIN PROCTER LLP | ||||
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated
February 13, 2007, relating to the consolidated financial statements of Progress Software Corporation (which report expresses
an unqualified opinion and includes an explanatory paragraph relating to the adoption of Statement of Financial Accounting
Standards No. 123(R), Share-Based Payment, effective December 1, 2005) and management’s report on the effectiveness
of internal control over financial reporting, appearing in the Annual Report on Form 10-K of Progress Software
Corporation for the year ended November 30, 2006.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
September 21, 2007
Boston, Massachusetts
September 21, 2007