As filed with the Securities and Exchange Commission on May 25, 2000
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, NORTH CAROLINA 27713
(Address of Principal Executive Offices) (Zip Code)
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RED HAT SOFTWARE, INC.
1998 STOCK OPTION PLAN, AS AMENDED
BLUECURVE, INC.
1996 STOCK OPTION PLAN, AS AMENDED
(Full title of the plans)
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MATTHEW J. SZULIK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
RED HAT, INC.
2600 MERIDIAN PARKWAY
DURHAM, NORTH CAROLINA 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:
BRIAN T. ATKINSON, ESQ.
MOORE & VAN ALLEN, PLLC
100 NORTH TRYON STREET, FLOOR 47
CHARLOTTE, NORTH CAROLINA 28202-4003
(704) 331-1000
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<PAGE>
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CALCULATION OF REGISTRATION FEE
<TABLE>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE PRICE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
- ----------------------------------------------------- -------------- ------------- ---------------- -------------
<S> <C> <C> <C> <C>
RED HAT SOFTWARE, INC. 1998 STOCK OPTION PLAN
Common stock, par value $.0001 per share 282,142 $ 0.08750 $ 24,687.43
3,628,392 0.21425 777,382.99
3,050,993 0.78525 2,395,792.25
1,290,668 2.50 3,226,670.00
426,400 5.00 2,132,000.00
22,000 5.40 118,800.00
468,000 5.50 2,574,000.00
20,000 7.00 140,000.00
-------------- ----------------
Subtotals 9,188,595 11,389,332.67 $ 3,006.79
BLUECURVE, INC. 1996 STOCK PLAN
Common stock, par value $.0001 per share 31,678 0.85 26,926.30
253,174 4.24 1,073,457.76
840 4.66 3,914.40
-------------- ----------------
Subtotals 285,692 1,104,298.46 291.53
-------------- ---------------- -------------
TOTALS 9,474,287 $ 12,493,631.12 $ 3,298.32
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</TABLE>
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(1) Based on options to purchase 9,188,595 shares of the Registrant's Common
Stock, par value $.0001 per share ("Common Stock"), outstanding as of May
25, 2000 under the Red Hat Software, Inc. 1998 Stock Option Plan. All of
such shares are issuable upon the exercise of outstanding options to
purchase the number of shares at the exercise prices listed above. Pursuant
to Rule 457(h)(1), the aggregate offering price and the fee have been
computed upon the basis of the price at which the options may be exercised.
(2) Based on options to purchase 9,474,287 shares of Common Stock outstanding
as of May 25, 2000 under the Bluecurve, Inc. Stock Option Plan. All of such
shares are issuable upon the exercise of outstanding options to purchase
the number of shares at the exercise prices listed above. Pursuant to Rule
457(h)(1), the aggregate offering price and the fee have been computed upon
the basis of the price at which the options may be exercised.
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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).
In accordance with the rules and regulations of the U.S. Securities and Exchange
Commission (the "Commission") and the instructions to Registration Statement on
Form S-8, such documents are not being filed with the Commission either as part
of this Registration Statement or as a prospectus 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 Registration
Statement on Form S-8, such documents are not being filed with the Commission
either as part of this Registration Statement or as a prospectus 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) The Registrant's Annual Report on Form 10-K for the year ended
February 29, 2000 (the "Form 10-K") as filed on May 25, 2000 with the Commission
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(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
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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and the Registrant's certificate
of incorporation 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 Third
Amended and Restated Certificate of Incorporation filed as Exhibit 3.1 to the
Form 10-K and the Registrant's Amended and Restated By-laws filed as Exhibit 3.2
to the Form 10-K.
The Registrant has in effect a directors' and officers' liability
insurance policy.
3
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
------------------ -----------------------------------------------------
5 Opinion of Moore & Van Allen, PLLC.
23.1 Consent of Moore & Van Allen, PLLC (included in
Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
Power of Attorney (included as part of the signature
page of this Registration Statement).
ITEM 9. UNDERTAKINGS.
The 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, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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.
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% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
The Registrant hereby undertakes (i) 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; 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 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 15(d) of the Exchange Act 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.
4
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Insofar as indemnification for liabilities arising under the Securities
Act 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 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 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 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 25 day
of May, 2000.
RED HAT, INC.
By: /s/ MATTHEW J. SZULIK
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Matthew J. Szulik
President and Chief Executive Officer
5
<PAGE>
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 U.S. 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 (the "Securities Act"),
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, 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/ MATTHEW J. SZULIK Chief Executive Officer, President and May 25, 2000
------------------------------------ Director (principal executive officer)
Matthew J. Szulik
/S/ HAROLD L. COVERT Chief Financial Officer (principal May 25, 2000
------------------------------------ financial and accounting officer)
Harold L. Covert
/S/ ROBERT F. YOUNG Director May 25, 2000
------------------------------------
Robert F. Young
/S/ MARC EWING Director May 25, 2000
------------------------------------
Marc Ewing
/S/ WILLIAM S. KAISER Director May 25, 2000
------------------------------------
William S. Kaiser
/S/ KEVIN HARVEY Director May 25, 2000
------------------------------------
Kevin Harvey
/S/ ERIC HAHN Director May 25, 2000
------------------------------------
Eric Hahn
</TABLE>
6
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
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5 Opinion of Moore & Van Allen, PLLC.
23.1 Consent of Moore & Van Allen, PLLC (included in
Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
Power of Attorney (included as part of the signature
page of this Registration Statement).
EXHIBIT 5
Moore & Van Allen, PLLC
Attorneys at Law
100 North Tryon Street, Floor 47
Charlotte, North Carolina 28202-4003
(704)331-1000
May 25, 2000
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 9,474,287 shares of Common Stock, par
value $.0001 per share, of the Company (the "Shares") to be issued upon the
exercise of options under the Red Hat Software, Inc. 1998 Stock Option Plan, as
amended, and the Bluecurve, Inc. 1996 Stock Plan, as amended (collectively, the
"Plans").
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 Plans,
(b) the Company's Third Amended and Restated Certificate of Incorporation, as
amended, (c) the Company's Amended and Restated By-laws, as amended, (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 Plans 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 to the
Registration Statement.
Very truly yours,
/s/ MOORE & VAN ALLEN, PLLC
MOORE & VAN ALLEN, PLLC
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 24, 2000, relating
to the financial statements, which appear in Red Hat, Inc.'s Annual Report on
Form 10-K for the year ended February 29, 2000.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Raleigh, North Carolina
May 22, 2000
