<PAGE>
As filed with the Securities and Exchange
Commission on June 3, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
========================
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
========================
THE ULTIMATE SOFTWARE GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 65-0694077
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3111 Stirling Road
Ft. Lauderdale, FL 33312
(Address of Principal
Executive Offices) (Zip Code)
The Ultimate Software Group, Inc.
Nonqualified Stock Option Plan
(Full Title of the Plans)
Scott Scherr
The Ultimate Software Group, Inc.
3111 Stirling Road
Ft. Lauderdale, FL 33312
(954) 266-1000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be registered Proposed maximum Proposed maximum Amount of registration
to be registered offering price per aggregate offering fee
share price
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per 5,059,091 1 $10.09 2 $51,046,228 2 $15,070
share
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
1 This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under The Ultimate Software Group, Inc. Non-
qualified Stock Option Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the Company's
receipt of consideration which results in an increase in the number of the
outstanding shares of the Company's Common Stock.
2 Pursuant to Rule 457(h), these prices are estimated solely for the purpose of
calculating the registration fee and are based upon the average of the high and
low sales prices of the Registrant's Common Stock on the NASDAQ on
June 2, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing information specified by Part I of this
Form S-8 Registration Statement (the "Registration Statement") have been or
will be sent or given to participants in the plan listed on the cover of the
Registration Statement (the "Plan") as specified in Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are
not being filed with the Commission but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant to Item 3 of
Part II hereof), a prospectus (the "Prospectus") that meets the requirements of
Section 10(a) of the Securities Act.
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to Section
13 of the Exchange Act are incorporated herein by reference:
(a) The Company's Registration Statement on Form S-1, Registration No.
333-47881 filed with the Commission on March 13, 1998, including any
amendments filed thereto;
(b) The Company's prospectus filed with the Commission on June 2, 1998
under Rule 424(b)(1) in connection with the Company's Registration
Statement No. 333-47881; and
(c) Description of the Company's capital stock contained in the Company's
Registration Statement on Form 8-A, Registration No. 000-24347, filed
with the Commission on May 27, 1998, including any further amendments
or reports 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 Securities Exchange Act of 1934, as amended
(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 a 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 any other subsequently filed document that
also is or is deemed to be incorporated by reference herein or therein)
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.
The Company will provide without charge to each participant under the
Plan, upon the written or oral request of such person, a copy of any or all of
the documents referred to above which have been or may be incorporated by
reference herein (other than exhibits to such documents unless such exhibits
are specifically incorporated by reference in such documents). Requests for
such copies should be directed to The Ultimate Software Group, Inc., 3111
Stirling Road, Ft. Lauderdale, FL 33312, Attention: Sarah H. Bodman, telephone
number (954) 266-1000.
ITEM 4. NOT APPLICABLE
ITEM 5. NOT APPLICABLE
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of The Ultimate Software
Group, Inc. (the "Company") provides for indemnification, to the fullest extent
permitted by law, of any person who was or is a director, officer, employee or
agent of the Company or was serving in such capacity at another entity at the
Company's request (each, an "Indemnified Person"), and is a party to, or is
threatened to be made a party to, any threatened, pending or completed action,
suit or proceeding, whether derivative or not. Indemnification continues as to
an Indemnified Person who has ceased to be a director, officer, employee or
agent and inures to the benefit of the heirs, executors and administrators of
an Indemnified Person. The indemnification provisions in the Certificate of
Incorporation are non-exclusive and allow the Company to indemnify by agreement
or vote of stockholders or disinterested directors.
Any indemnification is subject to applicable law requiring a
case-by-case determination that indemnification is appropriate.
The Certificate of Incorporation permits the Company to, and
the Company intends to, purchase liability insurance on behalf of any such
person against any liability which may be asserted.
II-1
<PAGE>
The Certificate of Incorporation also authorizes, to the
fullest extent allowed by law, indemnification for expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, as well as
the advancement of expenses to an Indemnified Person.
ITEM 7. NOT APPLICABLE
ITEM 8. EXHIBITS
Exhibit Description
Number
4.1 - Instruments defining the rights of stockholders.
Reference is hereby made to the Company's
Registration Statement No. 000-24347 on Form 8-A,
and the exhibits thereto, which are incorporated
herein by reference pursuant to Item 3(c).
5.1 - Opinion of Dewey Ballantine LLP as to legality of
securities being registered
23.1 - Consent of Arthur Andersen LLP
23.2 - Consent of Dewey Ballantine LLP (included in
Exhibit 5.1)
99.1 - The Ultimate Software Group, Inc. Nonqualified
Stock Option Plan (incorporated by reference to
Exhibit 10.7 to the Company's Registration
Statement on Form S-1 (File No. 333-47881)).
99.2 - Form of The Ultimate Software Group, Inc. Non-
qualified Stock Option Agreement
ITEM 9. UNDERTAKINGS
(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;
(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 this Registration Statement;
(iii) to include any material information with respect to the
plans of distribution not previously disclosed in this 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 periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 Company's Nonqualified Stock Option Plan.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this 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.
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<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities 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 the director, officer or controlling
person of the Company 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 Company 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 and will be governed by the final adjudication of such issue.
II-3
<PAGE>
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 New York, State of New York, on this 1st day of
June, 1998.
THE ULTIMATE SOFTWARE GROUP, INC.
By: /s/ Mitchell K. Dauerman
-------------------------------------------------
Mitchell K. Dauerman
Executive Vice President, Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below on June 1, 1998 by
the following persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Scott Scherr President, Chief Executive Officer
- ------------------------------------------------------- and Director
Scott Scherr
/s/ Mitchell K. Dauerman Executive Vice President, Chief Financial
- ------------------------------------------------------- Officer (Principal Financial Officer and
Mitchell K. Dauerman Principal Accounting Officer) and Treasurer
/s/ Alan S. Goldstein Executive Vice President, Chief
- ------------------------------------------------------- Technology Officer and Director
Alan S. Goldstein
/s/ Marc D. Scherr Director
- -------------------------------------------------------
Marc D. Scherr
Director
- -------------------------------------------------------
Ofer Nemirovsky
/s/ LeRoy A. Vander Putten Director
- -------------------------------------------------------
Leroy A. Vander Putten
/s/ Rick Wilber Director
- -------------------------------------------------------
Rick Wilber
/s/ Robert A. Yanover Director
- -------------------------------------------------------
Robert A. Yanover
</TABLE>
II-4
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF DEWEY BALLANTINE LLP]
June 3, 1998
The Ultimate Software Group, Inc.
3111 Stirling Road
Ft. Lauderdale, FL 33312
Ladies and Gentlemen:
We have acted as counsel to The Ultimate Software Group,
Inc., a Delaware corporation (the "Company"), in connection with the
preparation and filing by the Company of a Registration Statement on Form S-8
(the "Registration Statement"), under the Securities Act of 1933, as amended,
for the registration of 5,059,091 shares of common stock, $0.01 par value per
share (the "Shares"), of the Company relating to the exercise of stock options
pursuant to The Ultimate Software Group, Inc. Nonqualified Stock Option Plan as
Amended and Restated as of April 3, 1998 (the "Plan").
We have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and officers of the Company
and such other instruments as we have deemed necessary or appropriate as a
basis for the opinions expressed below.
Based on the foregoing, we are of the opinion that:
1. The issuance of the Shares upon exercise of options
granted under the Plan has been lawfully and duly authorized; and
2. When the Shares have been issued and delivered in
accordance with the terms of the Plan, the Shares will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement. In giving such consent, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
DEWEY BALLANTINE LLP
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement of our
reports, included in The Ultimate Software Group, Inc.'s Form S-1 Registration
Statement (No. 333-47881) for the year ended December 31, 1997, and to all
references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Miami, Florida
June 3, 1998.
<PAGE>
THE ULTIMATE SOFTWARE GROUP, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
This AGREEMENT, made as of this day of , 199 , by
and between The Ultimate Software Group, Inc. (the "Company") and
(the "Optionee");
WHEREAS, the Company has adopted a Nonqualified Stock Option
Plan (the "Plan") pursuant to which certain employees and officers of and
investors in the Company are given the opportunity to acquire or increase their
equity ownership in the Company through the purchase of shares of Class C
Common Stock, par value $.01 per share, of the Company ("Stock"); and
WHEREAS, the Compensation Committee of the Board of Directors
has approved the grant to the Optionee, under the Plan, of the option provided
for herein;
NOW, THEREFORE, in consideration of the premises, it is
agreed by and between the parties as follows:
1. DEFINITION OF TERMS. All terms not defined herein shall
have the meaning given to them in the Plan.
2. GRANT OF OPTION. The Company has granted to the Optionee
the right, privilege and option to purchase shares of Stock at a purchase
price (the "Option Price") of $ per share. This option is subject to
the conditions hereinafter provided and subject to the terms and conditions set
forth in the Plan, a copy of which the Optionee acknowledges having received.
(This option is hereinafter referred to as the "Option".)
3. VESTING SCHEDULE. Subject to the terms of the Plan, the
Option shall vest and become exercisable , provided that the Optionee
remains an employee of the Company on such respective dates. Such installments
shall be cumulative. No Option shall be exercisable after it terminates as
provided in Section 5 hereof.
4. EXERCISE OF OPTION.
a. METHOD OF EXERCISE. The Option shall be
exercised in whole or in part by written notice of exercise delivered to the
Secretary of the Company, at the Company's principal place of business, which
notice shall specify the number of shares being purchased. The notice shall be
accompanied by a check or shares of Stock, or any combination thereof, in
payment of the Option Price pursuant to the Plan for the number of shares
specified in the notice of exercise. As an alternative, payment of the Option
Price shall be deemed satisfied (i) if the Stock is listed on a national
securities exchange, by delivery to the Company of an assignment of a
sufficient amount of the proceeds from the
<PAGE>
sale of Stock acquired upon exercise to pay for all of the Stock acquired upon
exercise and an authorization to the broker or selling agent to pay that amount
to the Company, which sale shall be made at the Participant's direction at the
time of exercise, and (ii) if the Stock is not listed on a national securities
exchange, by having the Company withhold a number of shares of Stock otherwise
issuable to the Participant upon exercise of the Option, the Fair Market Value
of which equals the Option Price. For purposes hereof, the Fair Market Value of
the shares of Stock delivered and withheld shall be determined as of the date
on which the Option is exercised.
b. DELIVERY OF STOCK CERTIFICATES UPON EXERCISE.
Upon each exercise of this Option, the Company shall mail or deliver to the
Optionee (or Beneficiary in the case of exercise by a Beneficiary), as promptly
as practicable, a stock certificate or certificates representing the shares
then purchased, and will pay all stamp taxes payable in connection therewith.
Notwithstanding the foregoing, the Company shall not be obligated to deliver
any such certificate or certificates upon exercise of this Option until the
Company shall have received such assurances from its counsel as the Company may
reasonably request that the exercise of this Option and the issuance of shares
of Stock pursuant to such exercise will not violate the Securities Act of 1933
(the "Act"), as amended (as then in effect or any similar statute then in
effect), or the securities laws of any State applicable to such exercise,
issuance or transfer. Such assurances may include (but need not be limited to)
opinions of counsel to the Company, covenants by the holder or transferee to
observe such Act and laws and the placement of a legend on such certificate or
certificates restricting subsequent transfers or sales except in compliance
with such Act and laws.
Further, the Company may make such provisions as it may deem
appropriate for the withholding of any taxes or payment of any taxes which it
determines it may be required to withhold or pay in connection with the Option
(including taxes with respect to Stock received by exercise of the Option). The
obligation of the Company to issue and deliver Stock pursuant to the Option is
conditioned upon the satisfaction of the provisions set forth in the preceding
sentence.
5. TERMINATION OF OPTION. Except as herein otherwise stated,
the Option, to the extent not theretofore exercised, shall terminate on
(which is the tenth anniversary of the Plan).
6. ANTI-DILUTION. In the event of a reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger or
consolidation, or the sale, conveyance, lease or other transfer by the Company
of all or substantially all of its property, or any other change in the
corporate structure or shares of the Company, pursuant to any of which events
the then outstanding shares of Stock are split up or combined, or are changed
into, become exchangeable at the holder's election for, or entitle the holder
thereof to, other shares of stock, or in the case of any other transaction
described in Section 424(a) of the Internal Revenue Code, then the number and
kind of shares subject to the Option and the price per share shall be
proportionately adjusted in accordance with the Plan (or other action
taken with respect to an offering of rights, warrants or options) to prevent
dilution or
<PAGE>
enlargement of the Optionee's rights hereunder. Nothing in this paragraph shall
require the issuance of any fractional shares.
7. RIGHTS PRIOR TO EXERCISE OF OPTION. The Option is
nontransferable by the Optionee, except that in the event of the Optionee's
death the Option may be transferred by the Optionee's will or by the laws of
descent and distribution and shall then be exercisable only until the date
applicable under Section 5 above. During the Optionee's lifetime, the Option
shall be exercisable only by the Optionee. The Optionee or his Beneficiary
shall have no rights as a stockholder with respect to the shares subject to the
Option until exercise of the Option and delivery to the Optionee of shares of
Stock.
8. REGISTRATION. The parties understand that the Stock is not
registered pursuant to any Federal or State securities statutes, nor is it
currently listed on any national, regional or local stock exchange.
Promptly following an initial public offering of securities
of the Company under the Securities Act of 1933, the Company will register,
with the Securities and Exchange Commission, the Stock which has been reserved
for issuance under the Plan pursuant to a registration statement Form S-8 (or
on any successor form established by the Securities and Exchange Commission for
purposes of registering securities issued pursuant to employee benefit plans).
9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
10. BINDING EFFECT. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
THE ULTIMATE SOFTWARE GROUP, INC.
BY:
-----------------------------------
TITLE:
-------------------------------------
(SIGNATURE OF OPTIONEE)
------------------------------------
(PRINT NAME)
3
