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As filed with the Securities and Exchange Commission on September 30, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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RED HAT, INC.
(Exact Name of Registrant as specified in its charter)
DELAWARE 06-1364380
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
2600 MERIDIAN PARKWAY
DURHAM, NC 27713
(919) 547-0012
(Address of Principal Executive Offices) (Zip Code)
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RED HAT, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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ROBERT F. YOUNG
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
RED HAT, INC.
2600 MERIDIAN PARKWAY
DURHAM, NC 27713
(Name and Address of Agent for Service of Process)
(919) 547-0012
(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
WILLIAM J. SCHNOOR, JR., ESQ.
TESTA, HURWITZ & THIBEAULT, LLP
HIGH STREET TOWER
125 HIGH STREET
BOSTON, MASSACHUSETTS 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate
Title of Securities Amount to be Price Per Offering Price Amount of
to be Registered Registered Share (1) Registration Fee
- ---------------------------------------------- ------------------ ------------- --------------- -----------------
<S> <C> <C> <C> <C>
1999 EMPLOYEE STOCK PURCHASE PLAN 750,000 $98.188 $ 73,641,000.00 $20,472.20
Common Stock (par value $.0001 per share)
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</TABLE>
(1) The price of $98.188 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on September 29, 1999, is
set forth solely for purposes of calculating the filing fee pursuant to
Rule 457(c) and (h) and has been used only for those shares without a
fixed exercise or purchase price.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (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.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b). 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated August 11, 1999, as filed with the
Commission pursuant to Rule 424(b)(1) of the Securities Act of 1933,
as amended (the "Securities Act of 1933"), on August 11, 1999;
(b) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on
Form 8-A (File No. 000-26281) filed on June 4, 1999 pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act").
All documents subsequently filed with the Commission by the Registrant
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 herein 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 thereof from the date of filing of such
documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law, the Registrant's charter and
by-laws provide for indemnification of the Registrant's directors and officers
for liabilities and expenses that they may incur in such capacities. In
general, directors and officers are indemnified with respect to actions taken
in good faith in a manner reasonably believed to be in, or not opposed to, the
best interests of the Registrant, and with respect to any criminal action or
proceeding, actions that the indemnitee had no reasonable cause to believe were
unlawful. Reference is made to the Registrant's corporate charter filed as
Exhibits 3.2 and 3.3 to the Registrant's Registration Statement on Form S-1
(File No. 333-80051) and the Registrant's by-laws filed as Exhibit 3.5 to the
Registrant's Registration Statement on Form S-1 (File No. 333-80051).
The underwriting agreement, dated August 11, 1999, by and between
the Registrant and the underwriters listed therein provides that the
underwriters are obligated, under certain circumstances, to indemnify
directors, officers and controlling persons of the Registrant against certain
liabilities, including liabilities under the Securities Act of 1933.
Reference is made to the form of underwriting agreement filed as Exhibit 1.1
to the Registrant's Registration Statement on Form S-1 (File No. 333-80051).
The Registrant has in effect a directors' and officers' insurance
policy.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Specimen Certificate for shares of the Registrant's Common
Stock (filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-80051) and incorporated
herein by reference)
4.2 Third Amended and Restated Certificate of Incorporation (filed
as Exhibit 3.5 to the Registration Statement on Form S-1 (File
No. 333-80051) and incorporated herein by reference)
4.3 Certificate of Amendment Third Amended and Restated Certificate
of Incorporation (filed as Exhibit 3.3 to the Registration
Statement on Form S-1 (File No. 333-80051) and incorporated
herein by reference)
4.4 Amended and Restated By-Laws of the Registrant (filed as
Exhibit 3.5 to the Registration Statement on Form S-1 (File No.
333-80051) and incorporated herein by reference)
4.5 1999 Employee Stock Purchase Plan (filed as Exhibit 10.3 to
the Registration Statement on Form S-1 (File No. 333-80051)
and incorporated herein by reference)
</TABLE>
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<TABLE>
<S> <C>
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included as part of the signature page of
this Registration Statement)
</TABLE>
Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes 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; and
(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 registration statement is on Form S-3, Form S-8 or Form
F-3, and 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 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
The undersigned Registrant hereby undertakes (i) 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; and
(ii) 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.
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 15(d) of the Exchange
Act of 1934 that is incorporated by reference herein 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.
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
5
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(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.
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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 Durham in the State of North Carolina, on this 30th
day of September, 1999.
RED HAT, INC.
By: /s/ Robert F. Young
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Robert F. Young
Chairman and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Red Hat, Inc., hereby
severally constitute and appoint Robert F. Young and Matthew J. Szulik, and each
of them singly, our true and lawful attorneys, with full power to them and each
of them singly, to sign for us in our names in the capacities indicated below,
any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable Red Hat, Inc., to comply with the
provisions of the Securities Act of 1933, as amended, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and all amendments thereto.
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Robert F. Young Chairman and Chief Executive Officer September 30, 1999
- --------------------------------- (Principal Executive Officer)
Robert F. Young
/s/ Manoj George Chief Financial Officer September 30, 1999
- --------------------------------- (Principal Financial and Accounting Officer)
Manoj George
/s/ Matthew J. Szulik Director September 30, 1999
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Matthew J. Szulik
/s/ Marc Ewing Director September 30, 1999
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Marc Ewing
/s/ Frank Batten, Jr. Director September 30, 1999
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Frank Batten, Jr.
/s/ William Kaiser Director September 30, 1999
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William Kaiser
/s/ Eric Hahn Director September 30, 1999
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Eric Hahn
/s/ Kevin Harvey Director September 30, 1999
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Kevin Harvey
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
4.1 Specimen Certificate for shares of the Registrant's Common
Stock (filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-80051) and incorporated
herein by reference)
4.2 Third Amended and Restated Certificate of Incorporation
(filed as Exhibit 3.5 to the Registration Statement on Form
S-1 (File No. 333-80051) and incorporated herein by
reference)
4.3 Certificate of Amendment to the Registrant's Third Amended
and Restated Certificate of Incorporation (filed as Exhibit
3.3 to the Registration Statement on Form S-1 (File No.
333-80051) and incorporated herein by reference)
4.4 Amended and Restated By-Laws of Registrant (filed as Exhibit
3.5 to the Registration Statement on Form S-1 (File No.
333-80051) and incorporated herein by reference)
4.5 1999 Employee Stock Purchase Plan (filed as Exhibit 10.3 to
the Registration Statement on Form S-1 (File No. 333-80051)
and incorporated herein by reference)
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement)
</TABLE>
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EXHIBIT 5.1
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
September 29, 1999
Red Hat, Inc.
2600 Meridian Parkway
Durham, NC 27713
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We are acting as counsel for Red Hat, Inc., a Delaware corporation
(the "COMPANY"), in connection with the registration on a Registration
Statement on Form S-8 (the "REGISTRATION STATEMENT") under the Securities Act
of 1933, as amended, of the offer and sale of up to 750,000 shares (the
"SHARES") of Common Stock, par value $.0001 per share, of the Company under
the 1999 Employee Stock Purchase Plan (the "PLAN").
In rendering our opinion, we have examined, and are familiar with, and
have relied as to factual matters solely upon, originals or copies certified, or
otherwise identified to our satisfaction, of such documents, corporate records
or other instruments as we have deemed necessary or appropriate for the purposes
of the opinion set forth herein, including, without limitation, (a) the Plan,
(b) the Company's Third Amended and Restated Certificate of Incorporation, as
amended, (c) the Company's Amended and Restated By-laws, (d) a specimen of the
form of Certificate evidencing the Shares and (e) the minute books and stock
records of the Company.
Based upon and subject to the foregoing, we are of the opinion that
the Shares are duly authorized and, when issued and delivered pursuant to the
terms of the Plan and the terms of any agreement relating to any of the
options granted thereunder, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 30, 1999, except as to note 14
which is as of August 11, 1999, relating to the financial statements, which
appears in the Registration Statement on Form S-1 of Red Hat, Inc. (File No.
333-80051).
/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
September 30, 1999
