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As filed with the Securities and Exchange Commission on February 4, 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
(State or other jurisdiction of incorporation or organization)
06-1364380
(I.R.S. Employer 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 STOCK OPTION AND INCENTIVE PLAN
CYGNUS SOLUTIONS
1995 STOCK OPTION PLAN
1997 STOCK OPTION PLAN
1998 EXECUTIVE STOCK OPTION PLAN
(Full title of the plans)
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ROBERT F. YOUNG
CHAIRMAN
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
Maximum Proposed
Offering Maximum
Title of Securities Amount to be Price Per Aggregate Amount of
to be Registered Registered Share Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
RED HAT, INC.
1999 STOCK OPTION AND INCENTIVE PLAN
Common Stock (par value $.0001 per share)
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OPTIONS GRANTED (1)
300,000 $36.7500 $11,025,000
537,800 $42.9375 $23,091,788
216,600 $108.5000 $23,501,100
221,490 $133.9690 $29,672,794
106,600 $92.5000 $9,860,500
OPTIONS RESERVED FOR GRANT (2)
11,617,510 $94.4688 $1,097,492,229
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CYGNUS SOLUTIONS
1995 STOCK OPTION PLAN
Common Stock (par value $.0001 per share)
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OPTIONS GRANTED (3)
99,257 $0.1519 $15,078
71,213 $0.6362 $45,306
72,444 $0.9542 $69,126
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CYGNUS SOLUTIONS
1997 STOCK OPTION PLAN
Common Stock (par value $.0001 per share)
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OPTIONS GRANTED (4)
193,024 $0.9861 $191,341
128,421 $1.2723 $163,391
151,657 $1.7494 $265,309
92,061 $2.0675 $190,336
710,147 $2.8626 $2,032,867
65,238 $4.1349 $269,753
228,726 $4.7710 $1,091,252
28,296 $40.0764 $1,134,002
32,815 $101.7812 $3,339,951
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CYGNUS SOLUTIONS
1998 EXECUTIVE STOCK OPTION PLAN
Common Stock (par value $.0001 per share)
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OPTIONS GRANTED (5)
428,370 $2.8626 $1,226,252
78,600 $4.7710 $375,001
TOTAL: 15,380,269 $1,205,052,376 $318,134
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</TABLE>
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(1) Based on options to purchase 1,382,490 shares of Red Hat Common Stock
outstanding as of February 1, 2000 under the Red Hat, Inc. 1999 Stock
Option and Incentive 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) The price of $94.4688 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on February 1, 2000, 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.
(3) Based on options to purchase 242,914 shares of Red Hat Common Stock
outstanding as of February 1, 2000 under the Cygnus Solutions 1995 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.
(4) Based on options to purchase 1,630,285 shares of Red Hat Common Stock
outstanding as of February 1, 2000 under the Cygnus Solutions 1997 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.
(5) Based on options to purchase 506,970 shares of Red Hat Common Stock
outstanding as of February 1, 2000 under the Cygnus Solutions 1998
Executive 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)(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 February 3, 2000, as filed with the
Commission pursuant to Rule 424(b)(4) of the Securities Act of 1933, as
amended (the "Securities Act of 1933"), on February 4, 2000;
(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.
Certain attorneys of Testa, Hurwitz & Thibeault, LLP, counsel to the
Registrant, hold an aggregate of 4,200 shares of the Registrant's Common Stock.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and 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 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.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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 3.2 to the Registration Statement on Form S-1 (File No.
333-80051) and incorporated herein by reference)
4.3 Certificate of Amendment of 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, as amended, of the Registrant (filed as
Exhibit 3.2 to the Registration Statement on Form S-1 (File No.
333-94775) and incorporated herein by reference)
4.5 1999 Stock Option and Incentive Plan (filed as Exhibit 10.2 to the
Registration Statement on Form S-1 (File No. 333-80051) and
incorporated herein by reference)
4.6 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)
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<PAGE>
4.7 Cygnus Solutions 1995 Stock Option Plan (filed as Exhibit 10.4 to the
Registration Statement on Form S-1 (File No. 333-94775) and
incorporated herein by reference)
4.8 Cygnus Solutions 1997 Stock Option Plan (filed as Exhibit 10.5 to the
Registration Statement on Form S-1 (File No. 333-94775) and
incorporated herein by reference)
4.9 Cygnus Solutions 1998 Executive Stock Option Plan (filed as Exhibit
10.6 to the Registration Statement on Form S-1 (File No. 333-94775) 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 of this
Registration Statement)
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. 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 the registration
statement or any material change to such information 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
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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 (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 3rd
day of February, 2000.
RED HAT, INC.
By: /s/ MATTHEW J. SZULIK
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Matthew J. Szulik
President 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/ Matthew J. Szulik President and Chief Executive Officer February 3, 2000
- ------------------------------------- (Principal Executive Officer)
Matthew J. Szulik
/s/ Manoj George Chief Financial Officer February 3, 2000
- -------------------------------------(Principal Financial and Accounting Officer)
Manoj George
/s/ Robert F. Young Director February 3, 2000
- -------------------------------------
Robert F. Young
/s/ Marc Ewing Director February 3, 2000
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Marc Ewing
/s/ William Kaiser Director February 3, 2000
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William Kaiser
/s/ Eric Hahn Director February 3, 2000
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Eric Hahn
/s/ Kevin Harvey Director February 3, 2000
- -------------------------------------
Kevin Harvey
</TABLE>
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
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 3.2 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, as amended, of Registrant (filed as
Exhibit 3.2 to the Registration Statement on Form S-1 (File No.
333-94775) and incorporated herein by reference)
4.5 1999 Stock Option and Incentive Plan (filed as Exhibit 10.2 to the
Registration Statement on Form S-1 (File No. 333-80051) and
incorporated herein by reference)
4.6 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)
4.7 Cygnus Solutions 1995 Stock Option Plan (filed as Exhibit 10.4 to the
Registration Statement on Form S-1 (File No. 333-94775) and
incorporated herein by reference)
4.8 Cygnus Solutions 1997 Stock Option Plan (filed as Exhibit 10.5 to the
Registration Statement on Form S-1 (File No. 333-94775) and
incorporated herein by reference)
4.9 Cygnus Solutions 1998 Executive Stock Option Plan (filed as Exhibit
10.6 to the Registration Statement on Form S-1 (File No. 333-94775) 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)
<PAGE>
EXHIBIT 5.1
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
February 4, 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 15,380,269 shares of Common Stock, par
value $.0001 per share, of the Company (the "Shares") to be issued upon the
exercise of options under the 1999 Stock Option and Incentive Plan, the Cygnus
Solutions 1995 Stock Option Plan, the Cygnus Solutions 1997 Stock Option Plan
and the Cygnus Solutions 1998 Executive Stock Option Plan, (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 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
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 April 30, 1999, except as to note
14 which is as of January 7, 2000 and except as to the pooling of interests
with Cygnus Solutions which is as of January 7, 2000, relating to the
financial statements of Red Hat, Inc. appearing in Red Hat, Inc.'s
Registration Statement on Form S-1 (File No. 333-94775). We also consent to
the incorporation by reference in this Registration Statement on Form S-8 of
our report dated December 16, 1999 relating to the financial statements of
Hell's Kitchen Systems, Inc. appearing in Red Hat, Inc.'s Registration
Statement on Form S-1 (File No. 333-94775).
/s/ PricewaterhouseCoopers LLP
Durham, North Carolina
February 3, 2000
