As filed
with the Securities and Exchange Commission on July 9, 2024
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)
Delaware
(State
or Other Jurisdiction of Incorporation) |
04-2746201
(I.R.S.
Employer Identification Number) |
15
Wayside Road, Suite 400, Burlington, Massachusetts
(Address
of Principal Executive Offices) |
01803
(Zip
Code) |
Progress Software
Corporation 2008 Stock Option and Incentive Plan
(Full Title of Plans)
YuFan
Stephanie Wang
Progress Software
Corporation
15 Wayside
Road, Suite 400
Burlington,
Massachusetts 01803
(Name and Address
of Agent for Service)
(781) 280-4000
(Telephone Number,
Including Area Code, of Agent For Service)
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an
emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated
filer x |
Accelerated filer
o |
| Non-accelerated
filer o |
Smaller reporting
company o |
| |
Emerging
growth company o |
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
EXPLANATORY
NOTE
Progress
Software Corporation (the “Registrant”) is filing this Registration Statement on Form S-8 for the purpose of registering
an additional 4,665,000 shares of its common stock, par value $0.01 per share (the “Common Stock”), issuable to eligible
persons under the Progress Software Corporation 2008 Stock Option and Incentive Plan (the “Plan”).
This Registration
Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which
Registration Statements on Form S-8 of the Registrant relating to the same employee benefit plans set forth herein are effective.
Pursuant to General Instruction E of Form S-8, this Registration Statement incorporates by reference the contents of the registration
statements on Form S-8 relating to the Plan filed by the Registrant with the Securities and Exchange Commission (the “Commission”)
on June 29, 2021 (Commission File No. 333-257519), January 27, 2020 (Commission File No. 333-236096), and April 30, 2008 (Commission
File No. 333-150555).
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents
containing the information specified in this Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations
of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents
and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. |
Incorporation
of Documents by Reference. |
The following documents are
incorporated herein by reference:
| (a) | The
Registrant’s Annual Report on Form 10-K for the fiscal year ended November 30,
2023, filed with the Commission on January 26, 2024; |
| (b) | The
Registrant’s Quarterly Reports on Form 10-Q for the quarterly period ended February 29, 2024, filed with the Commission on April 8, 2024, and for the quarterly period ended
May 31, 2024, filed with the Commission on July 8, 2024; |
| (d) | The
description of the Common Stock contained in the Registrant’s registration statement
on Form 8-A filed with the Commission on July 22, 1991, including any amendment thereto
or report filed for the purpose of updating such description. |
In addition, all documents subsequently
filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such
documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information that the Registrant
discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K that it may from time to time furnish to the Commission will
be incorporated by reference into, or otherwise included in, this Registration Statement.
Any statement, including financial
statements, 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 therein or in any
other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such 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. |
Joshua M. Westerman, Esq.,
as Associate General Counsel for the Registrant, has given an opinion to the Commission upon the validity of the shares of Common
Stock registered. Mr. Westerman has been granted awards under the Plan and is eligible to receive awards under the Plan.
| Item 6. | Indemnification of Directors
and Officers. |
Section 102(b)(7) of the Delaware
General Corporation Law (the “DGCL”) provides that a corporation may eliminate or limit the personal liability of
a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided 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
a knowing violation of law, (iii) under Section 174 of the DGCL (regarding, among other things, the payment of unlawful dividends)
or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant’s certificate of
incorporation includes a provision that eliminates the liability of directors for monetary damages to the fullest extent permitted
by Delaware law.
In addition, the Registrant’s
certificate of incorporation authorizes the Registrant to provide indemnification of officers and directors, through bylaw provisions,
agreements, vote of stockholders or disinterested directors or otherwise in excess of the indemnification otherwise permitted
by Delaware law, to the fullest extent permitted by Delaware law, and the Registrant’s amended and restated bylaws provide
that the Registrant is required to indemnify its officers and directors to the extent not prohibited by Delaware law.
Section 145(a) of the DGCL
empowers a corporation to indemnify any director, officer, employee, or agent, or former director, officer, employee, or agent,
who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation) by reason
of his service as a director, officer, employee, or agent of the corporation, or his service, at the corporation’s request,
as a director, officer, employee, or agent of another corporation or enterprise, against expenses (including attorneys’
fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such
action, suit, or proceeding, provided that such director or officer acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding; provided
that such director or officer had no reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL
empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending,
or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another enterprise, against expenses (including attorneys’ fees) actually
and reasonably incurred in connection with the defense or settlement of such action or suit; provided that such director or officer
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except
that no indemnification may be made in respect of any claim, issue, or matter as to which such director or officer shall have
been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in
which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Notwithstanding the preceding sentence, except as otherwise provided in the bylaws, we shall
be required to indemnify any such person in connection with a proceeding (or part thereof) commenced by such person only if the
commencement of such proceeding (or part thereof) by any such person was authorized by the board.
The Registrant’s bylaws
further provide that the Registrant may maintain directors’ and officers’ liability insurance. The Registrant maintains
a directors’ and officers’ liability insurance policy.
| Item 7. | Exemption from Registration
Claimed. |
Not applicable.
| Exhibit |
Description
|
| |
|
| 4.1 |
Certificate of Conversion from Non-Delaware Corporation to Delaware Corporation, filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed May 14, 2015, and incorporated herein by reference. |
| |
|
| 4.2 |
Certificate of Incorporation, filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed May 14, 2015, and incorporated herein by reference. |
| |
|
| 4.3 |
Certificate of Correction to Certification of Incorporation, filed as Exhibit 3.2.1 to the Registrant’s Annual Report on Form 10-K for the year ended November 30, 2015 filed January 29, 2016, and incorporated herein by reference. |
| |
|
| 4.4 |
Amended and Restated By-Laws, filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended May 31, 2019 filed July 9, 2019, and incorporated herein by reference. |
| |
|
| 4.5 |
Specimen certificate for the Common Stock, filed as Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K for the year ended November 30, 2011 filed January 30, 2012, and incorporated herein by reference. |
| |
|
| 4.6 |
Description of Registered Securities, filed as Exhibit 4.2 to the Registrant’s Annual Report on Form 10-K for the year ended November 30, 2019 filed January 27, 2020, and incorporated herein by reference. |
| |
|
| 4.7 |
Indenture, dated as of April 13, 2021, between Progress Software Corporation and U.S. Bank, National Association, as trustee, filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on April 13, 2021, and incorporated herein by reference. |
| |
|
| 4.8 |
Form of 1.00% Convertible Senior Note due 2025 (included as Exhibit A in Exhibit 4.7) and incorporated herein by reference. |
| |
|
| 4.9 |
Indenture, dated as of March 1, 2024, between Progress Software Corporation and U.S. Bank, National Association, as trustee, filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on March 1, 2024, and incorporated herein by reference. |
| |
|
| 4.10 |
Form of 3.50% Convertible Senior Note due 2030 (included as Exhibit A in Exhibit 4.9) and incorporated herein by reference. |
| |
|
| 5.1* |
Opinion of Counsel. |
| |
|
* Filed herewith
(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 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. 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 Commission 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;
(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)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in 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 this Registration
Statement.
(2)
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 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 which 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 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 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 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933,
as amended, 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 Burlington, State of Massachusetts, on this 9th day
of July 2024.
| PROGRESS SOFTWARE CORPORATION |
| |
| By: |
/s/ Yogesh K. Gupta |
|
| |
Yogesh
K. Gupta |
|
| |
President
and Chief Executive Officer |
|
POWER OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Yogesh Gupta, YuFan Stephanie Wang and Anthony Folger, and each of them, as his or her
true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him or her and in his or her
name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and additions
to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and hereby grants to such attorney-in-fact and agent full power and authority to
do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent 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, as amended, this Registration Statement has been signed by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Yogesh K. Gupta |
|
President, Chief Executive Officer |
|
July 9, 2024 |
| Yogesh K. Gupta |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Anthony Folger |
|
Executive Vice President and Chief Financial Officer |
|
July 9, 2024 |
| Anthony Folger |
|
(Principal Financial Officer) |
|
|
| |
|
|
|
|
| /s/ Domenic LoCoco |
|
Chief Accounting Officer |
|
July 9, 2024 |
| Domenic LoCoco |
|
(Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Paul T. Dacier |
|
Director |
|
July 9, 2024 |
| Paul T. Dacier |
|
|
|
|
| |
|
|
|
|
| /s/ John R. Egan |
|
Non-Executive Chairman |
|
July 9, 2024 |
| John R. Egan |
|
|
|
|
| |
|
|
|
|
| /s/ Rainer Gawlick |
|
Director |
|
July 9, 2024 |
| Rainer Gawlick |
|
|
|
|
| |
|
|
|
|
| /s/ Charles F. Kane |
|
Director |
|
July 9, 2024 |
| Charles F. Kane |
|
|
|
|
| |
|
|
|
|
| /s/ Samskriti Y. King |
|
Director |
|
July 9, 2024 |
| Samskriti Y. King |
|
|
|
|
| |
|
|
|
|
| /s/ David A. Krall |
|
Director |
|
July 9, 2024 |
| David A. Krall |
|
|
|
|
| |
|
|
|
|
| /s/ Angela T. Tucci |
|
Director |
|
July 9, 2024 |
| Angela T. Tucci |
|
|
|
|
| |
|
|
|
|
| /s/ Vivian M. Vitale |
|
Director |
|
July 9, 2024 |
| Vivian M. Vitale |
|
|
|
|
Exhibit 5.1
July 9, 2024
Progress Software Corporation
15 Wayside Road, Suite 400
Burlington, MA 01803
Re:
Securities Being Registered under Registration Statement on Form S-8
Dear Ladies and Gentlemen:
As counsel for Progress
Software Corporation, a Delaware corporation (the “Company”), I have examined the Registration Statement on Form S-8 to be
filed by the Company with the Securities and Exchange Commission, in connection with the registration under the Securities Act of 1933,
as amended, of 4,665,000 shares of common stock, par value $0.01 per share (the “Stock”), pursuant to the provisions of the
Progress Software Corporation 2008 Stock Option and Incentive Plan. I also have examined the steps taken by the Company and its Board
of Directors in connection with the authorization and proposed issuance and sale of the Stock, and I am familiar with resolutions adopted
by the Board of Directors of the Company.
Subject to the actions
authorized by the Company’s Board of Directors, the Stock, upon issuance and sale thereof in the manner specified in the Registration
Statement, will be duly authorized, legally and validly issued, fully paid, and nonassessable outstanding Stock of the Company.
I hereby consent to
the filing of this opinion as an exhibit to the Registration Statement, and I further consent to the use of my name under the caption
“Interests of Named Experts and Counsel” in the Registration Statement and the Prospectus which forms a part thereof.
Respectfully submitted,
/s/ JOSHUA M. WESTERMAN
Joshua M. Westerman
Exhibit 23.2
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 January 26, 2024 relating to the financial statements of Progress Software Corporation and the effectiveness
of Progress Software Corporation's internal control over financial reporting, appearing in the Annual Report on Form 10-K of Progress
Software Corporation for the year ended November 30, 2023.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
July 9, 2024
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-8
(Form Type)
Progress
Software Corporation
(Exact Name of Registrant
as Specified in its Charter)
Table
1: Newly Registered Securities
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Security
Type |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered
(1) |
Proposed
Maximum
Offering
Price
Per
Unit(2) |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
| Equity |
Common
Stock, par value $0.01 per share |
457(c)
and 457(h) |
4,665,000 |
$53.5575 |
$249,845,738 |
0.00014760 |
$36,877.24 |
| Total
Offering Amounts |
|
$249,845,738 |
|
$36,877.24 |
| Total
Fee Offsets |
|
|
|
— |
| Net
Fee Due |
|
|
|
$36,877.24 |
(1) Pursuant to Rule 416(a) promulgated
under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional
shares of Registrant’s common stock that become issuable under the Progress Software Corporation 2008 Stock Option and Incentive
Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase
to the number of outstanding shares of Registrant’s common stock.
(2) Estimated solely for purposes of calculating
the registration fee pursuant to Rule 457(c) and 457(h) under the Securities Act, based upon the average of the high and low price per
share of the Registrant’s common stock as reported on the Nasdaq Stock Market on July 1, 2024.
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