UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PROGRESS SOFTWARE CORPORATION
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(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2746201
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(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14 OAK PARK, BEDFORD, MASSACHUSETTS 01730
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(Address of Principal Executive Offices) (Zip code)
PROGRESS SOFTWARE CORPORATION
2002 NONQUALIFIED STOCK PLAN
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(Full title of the plan)
JOSEPH W. ALSOP, CHIEF EXECUTIVE OFFICER
PROGRESS SOFTWARE CORPORATION
14 OAK PARK
BEDFORD, MASSACHUSETTS 01730
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(Name and address of agent for service)
(781) 280-4000
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(Telephone number, including area code,
of agent for service)
WITH A COPY TO:
Robert L. Birnbaum, Esquire
Foley Hoag LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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Title of each class Amount to be Proposed maximum Proposed maximum Amount of
of securities to be Registered (1) offering price per aggregate offering Registration Fee
registered share price
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Common Stock, $.01 2,122,025 (2) $13.24 (3) $28,095,611 (3) $2,584.80
par value per share
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Common Stock, $.01 1,377,975 (4) $13.575 (5) $18,706,010 (5) $1,720.95
par value per share
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Totals 3,500,000 $46,801,621 $4,305.75
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, there are also
registered an undetermined number of additional shares which may be issued
if the antidilution provisions of the Plan become operative.
(2) Represents shares issuable pursuant to stock options granted under the Plan
and outstanding at August 12, 2002.
(3) In accordance with Rule 457(h)(1) under the Securities Act of 1933, the
offering price is calculated based on the exercise prices of outstanding
options.
(4) Represents shares issuable pursuant to options or awards not yet granted
under the Plan.
(5) In accordance with Rules 457(c) and (h)(1) under the Securities Act of
1933, the offering price for these shares is estimated, solely for the
purpose of determining the registration fee, based on the average of the
high and low sale prices of the common stock as reported by the Nasdaq
Stock Market on August 5, 2002.
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, 2001 (file number 0-19417) as
filed with the Commission on February 26, 2002;
(b) Quarterly Reports on Form 10-Q of the Company for the quarterly
periods ended February 28, 2002 and May 31, 2002 (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 report 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
hereof from the date of filing of such documents. 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 a document incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any 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. 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 LLP, Boston, Massachusetts. Robert L. Birnbaum, a
partner at Foley Hoag LLP is Assistant Clerk of the Company.
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 or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) under section sixty-one or
sixty-two of the Massachusetts Business Corporation Law 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, or in any capacity with respect to an employee
benefit plan of the Company, 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 in the reasonable 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 and 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 2002 Nonqualified Stock 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 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:
(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.
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 12th
day of August, 2002.
PROGRESS SOFTWARE CORPORATION
By: /s/ Joseph W. Alsop
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Joseph W. Alsop
Chief Executive Officer
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 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 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 on the dates indicated.
Signature Title Date
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/s/ Joseph W. Alsop Chief Executive Officer and Director August 12, 2002
--------------------------- (Principal Executive Officer)
Joseph W. Alsop
/s/ Norman R. Robertson Senior Vice President, Finance and August 12, 2002
--------------------------- Administration and Chief Financial
Norman R. Robertson Officer (Principal Financial Officer)
/s/ David H. Benton, Jr. Vice President and Corporate August 12, 2002
--------------------------- Controller (Principal Accounting
David H. Benton, Jr. Officer)
/s/ Larry R. Harris Director August 12, 2002
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Larry R. Harris
/s/ Roger J. Heinen, Jr. Director August 12, 2002
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Roger J. Heinen, Jr.
/s/ Michael L. Mark Director August 12, 2002
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Michael L. Mark
/s/ Arthur J. Marks Director August 12, 2002
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Arthur J. Marks
/s/ Scott A. McGregor Director August 12, 2002
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Scott A. McGregor
/s/ Amram Rasiel Director August 12, 2002
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Amram Rasiel
EXHIBITS
4.1 Progress Software Corporation 2002 Nonqualified Stock 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)
* Incorporated by reference to Exhibit 10.10 to the Company's Quarterly Report
on Form 10-Q for the quarter ended May 31, 2002.