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As filed with the Securities and Exchange Commission on September 1, 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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WireSpeed Communications Corporation Stock Option Plan, As Amended
(Full title of the plan)
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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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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
To be Price Offering Registration
Title of Securities to be Registered Registered Per Share Price (1) Fee
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<S> <C> <C> <C> <C>
Common stock, par value $.0001 per share 64,246 $ 0.72 $ 46,258 $ 13
</TABLE>
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(1) Based on options to purchase 64,246 shares of the Registrant's Common
Stock, par value $.0001 per share ("Common Stock"), outstanding under the
WireSpeed Communications Corporation ("WireSpeed") Stock Option Plan, as
amended and assumed by the Registrant in connection with its acquisition of
WireSpeed on July 27, 2000. 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 Registrant's Quarterly Report on Form 10-Q for the quarter
ended May 31, 2000 (the "Form 10-Q") as filed on July 17, 2000; and
(c) 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;
(d) The Registrant's Current Report on Form 8-K, dated June 26, 2000,
reporting its entry into a definitive agreement to acquire WireSpeed
Communications Corporation ("WireSpeed");
(e) The Registrant's Current Report on Form 8-K, dated August 11,
2000, reporting the completion of the WireSpeed acquisition; and
(f) The Registrant's Current Report on Form 8-K, dated August 23,
2000, reporting its entry into a definitive agreement to acquire C2Net Software,
Inc.
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.
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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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. 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).
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.
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.
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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 1st
day of September, 2000.
RED HAT, INC.
By: /s/ Matthew J. Szulik
____________________________________
Matthew J. Szulik
President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Red Hat, Inc., hereby
severally constitute and appoint Matthew J. Szulik and Mark H. Webbink, 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 September 1, 2000
________________________________________ Director (principal executive officer)
Matthew J. Szulik
/s/ Jason Savod U.S. Controller (principal financial September 1, 2000
________________________________________ and accounting officer)
Jason Savod
/s/ Robert F. Young Director September 1, 2000
________________________________________
Robert F. Young
/s/ Eugene J. McDonald Director September 1, 2000
________________________________________
Eugene J. McDonald
Director September 1, 2000
________________________________________
William S. Kaiser
/s/ Kevin Harvey Director September 1, 2000
________________________________________
Kevin Harvey
/s/ Eric Hahn Director September 1, 2000
________________________________________
Eric Hahn
</TABLE>
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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 Pricewaterhouse Coopers LLP.
Power of Attorney (included as part of the signature
page of this Registration Statement).
