1
Registration No. 333-
UNITED STATES
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 04-2746201
------------- ----------
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) 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 A COPY TO:
Robert W. Sweet, Jr., Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 483-1390
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of securities to be Amount to be Proposed maximum Amount of
registered registered aggregate offering price Registration Fee
---------- ---------- ------------------------ ----------------
Common Stock, $.01 par 680,000(1)(2) $13,982,500(2) $4,124.83(2)
value per share
(1) The 680,000 shares shown are shares issued or issuable pursuant to the
Company's 1997 Stock Incentive Plan. Pursuant to Rule 416(a) under the
Securities Act of 1933, as amended, there are also registered an
undetermined number of additional shares which may be issued if the
antidilution provisions of the Plan become operative.
(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 for these
additional shares is estimated solely for the purpose of determining the
registration fee and is based on $20.5625, the average of the high and low
sale prices of the Common Stock as reported by the Nasdaq Stock Market on
November 28, 1997.
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") are incorporated in this Registration Statement by
reference:
(a) Annual Report on Form 10-K of Progress Software Corporation (the
"Company") for the fiscal year ended November 30, 1996 (file number 0-19417) as
filed with the Commission on February 20, 1997;
(b) Quarterly Reports on Form 10-Q for the quarterly periods ended
February 28, 1997, May 31, 1997 and August 31, 1997 (file number 0-19417); and
(c) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on July
22, 1991 under Section 12 of the Securities Exchange Act of 1934 ("Exchange
Act"), including any amendment or description filed for the purpose of updating
such description.
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
thereof 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 commissions 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 dealing
with liability for unauthorized distributions and
3
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, 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 the reasonably belief 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 reasonably
belief that such action was in the best interests of the corporation.
The effect of these provision 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 Securities 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:
4
(a) 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 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;
(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) above 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 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 of 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 Act and will
be governed by the final adjudication of such issue.
5
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, Commonwealth of Massachusetts, on the second
day of December, 1997.
PROGRESS SOFTWARE CORPORATION
By: /s/ JOSEPH W. ALSOP
-----------------------
Joseph W. Alsop,
President and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Joseph W. Alsop, Chadwick H. Carpenter,
Jr. 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 their or his
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 has been signed by the following persons in the
capacities and as of the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ JOSEPH W. ALSOP President, Treasurer, and December 2, 1997
- ---------------------------- Director (Principal
Joseph W. Alsop Executive Officer)
/s/ NORMAN R. ROBERTSON Vice President, Finance December 2, 1997
- ---------------------------- and Chief Financial Officer
Norman R. Robertson (Principal Financial Officer)
6
/s/ DAVID H. BENTON, JR. Corporate Controller December 2, 1997
- ---------------------------- (Principal Accounting Officer)
David H. Benton, Jr.
/s/ LARRY R. HARRIS Director December 2, 1997
- ----------------------------
Larry R. Harris
/s/ ROBERT J. LEPKOWSKI Director December 2, 1997
- ----------------------------
Robert J. Lepkowski
/s/ MICHAEL L. MARK Director December 2, 1997
- ----------------------------
Michael L. Mark
/s/ ARTHUR J. MARKS Director December 2, 1997
- ----------------------------
Arthur J. Marks
/s/ AMRAM RASIEL Director December 2, 1997
- ----------------------------
Amram Rasiel
/s/ JAMES W. STOREY Director December 2, 1997
- ----------------------------
James W. Storey
7
EXHIBITS
4.1 Progress Software Corporation 1997 Stock Incentive Plan *
5.1 Opinion of Counsel
23.1 Consent of Deloitte & Touche, LLP
23.2 See Exhibit 5.1
* Incorporated by reference to Exhibit 10.18 to the Company's Quarterly
Report on Form 10-Q for the quarter ended May 31, 1997.
1
Exhibit 5.1
-----------
Opinion of Counsel
[FOLEY, HOAG & ELIOT LLP LETTERHEAD]
November 24, 1997
Progress Software Corporation
14 Oak Park
Bedford, MA 01730
Ladies and Gentlemen:
We have acted as counsel for Progress Software Corporation, a
Massachusetts corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the offering of up to 680,000 shares (the "Shares") of
the Company's common stock, $.01 par value ("Common Stock"), issuable, either
under awards currently issued and outstanding or under awards issuable
subsequent to the date hereof, pursuant to the Progress Software Corporation
1997 Stock Incentive Plan (the "Plan").
In arriving at the opinions expressed below, we have examined and relied
on the following documents:
(i) the Registration Statement;
(ii) the Plan;
(iii) the Restated Articles of Organization of the Company, as amended
as of the date hereof;
(iv) the By-Laws of the Company, as amended as of the date hereof; and
(v) the records of meetings and consents of the Board of Directors
and stockholders of the Company provided to us by the Company.
2
In addition, we have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such other records, documents
and instruments of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below. We have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all documents submitted to us as certified or
photostatic copies.
We express no opinion other than as to the laws of The Commonwealth of
Massachusetts.
Based upon the foregoing, we are of the opinion that the Company has the
corporate power necessary for the issuance of the Shares under the Plan, as
contemplated by the Registration Statement. The Shares have been duly authorized
and, when issued against payment of the agreed consideration therefor in
accordance with the respective exercise prices therefor as described in the
awards relating thereto and the Plan, will be validly issued, fully paid and
non-assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By /s/ Robert W. Sweet, Jr.
------------------------
A Partner
1
Exhibit 23.1
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Progress Software Corporation on Form S-8 of our report dated December 20, 1996,
appearing in the Annual Report on Form 10-K of Progress Software Corporation for
the year ended November 30, 1996.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
Boston, Massachusetts
December 2, 1997
