<PAGE> 1
Registration No. 333- ______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROGRESS SOFTWARE CORPORATION
-----------------------------
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts
-------------
(State or Other Jurisdiction of Incorporation or Organization)
04-2746201
----------
(I.R.S. Employer Identification No.)
14 Oak Park, Bedford, Massachusetts 01730
-----------------------------------------
(Address of Principal Executive Offices) (Zip Code)
PROGRESS SOFTWARE CORPORATION
1991 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full Title of the Plan)
Joseph W. Alsop, President
Progress Software Corporation
14 Oak Park
Bedford, Massachusetts 01730
----------------------------
(Name and Address of Agent for Service)
(781) 280-4000
--------------
(Telephone Number, Including Area Code, of Agent For Service)
WITH COPIES TO:
Robert W. Sweet, Jr., Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
CALCULATION OF REGISTRATION FEE
-------------------------------
<TABLE>
<CAPTION>
================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
================================================================================
<S> <C> <C> <C> <C>
Common Stock, 300,000 $29(2) $8,700,000(2) $2,418.60(2)
$0.01 par value shares(1)
per share
================================================================================
</TABLE>
(1) A total of 750,000 shares have been reserved for issuance under the
Company's 1991 Employee Stock Purchase Plan, 150,000 of which were
previously registered under Form S-8 Registration File No. 333-41752.
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
and the antidilution provisions of the Company's 1991 Employee Stock
Purchase Plan, the 150,000 previously registered shares were adjusted
to 300,000 registered shares on the effective date of the Company's
100% stock dividend, November 27, 1995; and further adjusted to 450,000
registered shares on the effective date of the Company's 50% stock
dividend, July 13, 1998.
(2) The total number of shares of Common Stock to be registered are
available to be offered under the 1991 Employee Stock Purchase Plan at
prices not presently determinable. Pursuant to Rule 457 (c) and (h),
the offering price per share is estimated solely for the purposes of
determining the aggregate offering price and the registration fee and
is based on $29, the average of the high and low sale prices of the
Common Stock as reported by the Nasdaq Stock Market on June 8, 1999.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated in this Registration Statement by
reference:
(a) Progress Software Corporation's (the "Company's" or the
"Registrant's") Annual Report on Form 10-K for the fiscal year ended November
30, 1998 (file number 0-19417) as filed with the Commission on February 24,
1998;
(b) the Company's Quarterly Report on Form 10-Q for the Quarterly
Period ended February 28, 1999 (file number 0-19417) as filed with the
Commission on April 13, 1999;
(c) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on July 22, 1991
under Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act"),
including any amendment or description filed for the purpose of updating such
description; and
(d) all documents subsequently filed by the Company 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 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 part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon
for the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6 of the Company's Restated Articles of Organization eliminates
the personal liability of a director to the Company or its stockholders for
monetary damages arising out of such director's breach of fiduciary duty as a
director of the Company to the maximum extent permitted by Massachusetts law.
Section 13(b)(1-1/2) of Chapter 156B of the Massachusetts Business Corporation
Law provides that the articles of organization of a corporation may state a
provision eliminating the personal liability of a director to a corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director; provided, however, that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts of commission not in good
faith or which involve intentional misconduct or knowing violation of law, (iii)
under section 61 or 62 of the Massachusetts Business Corporation Law
<PAGE> 3
dealing with liability for unauthorized distributions and loans to insiders,
respectively, or (iv) for any transaction from which the director derived an
improper personal benefit.
Article VII of the Company's By-Laws provides that the Company shall
indemnify its officers and directors, and directors, officers, trustees,
employees and other agents of any organization in which the Company owns shares
or of which it is a creditor, against all liabilities and expenses reasonably
incurred by such officers, directors, employees and other agents in connection
with the defense or disposition of any action, suit or proceeding in which they
may be involved by reason of having been a director, officer of employee or
other agent, except with respect to any matter as to which they shall have been
adjudicated not to have acted in good faith and reasonably believe that their
action was in the best interests of the Company. Section 67 of the Massachusetts
Business Corporation Law authorizes a corporation to indemnify its directors,
officers, employees and other agents unless such person shall have been
adjudicated in any proceeding not to have acted in good faith in the reasonable
belief that such action was in the best interests of the corporation.
The effect of these provisions would be to permit such indemnification
by the Company for liabilities arising out of the Securities Act of 1933, as
amended.
The Company also maintains an officers and directors liability
insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Progress Software Corporation 1991 Employee Stock Purchase Plan
5.1 Opinion of Counsel
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
ITEM 9. UNDERTAKINGS.
1. 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 Section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
2. The undersigned registrant hereby undertakes that,
(a) To file, during any period in which offers or sales are being
made, a post-effective
<PAGE> 4
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)(i) and (a)(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
3. 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.
<PAGE> 5
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 Town of Bedford, Massachusetts, on this 11th day of June,
1999.
Progress Software Corporation
By: /s/ JOSEPH W. ALSOP
-------------------------------------
Joseph W. Alsop,
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Joseph W. Alsop, and Norman R. Robertson,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing he may
deem necessary or advisable to be done in connection with this Registration
Statement, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or any substitute or substitutes for him, any or all of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of dates indicated.
Signature Title Date
- --------- ----- ----
/s/ JOSEPH W. ALSOP President and Director June 11, 1999
- ------------------------ (Principal Executive Officer)
Joseph W. Alsop
<PAGE> 6
Signature Title Date
- --------- ----- ----
/s/ NORMAN R. ROBERTSON Vice President, Finance and June 11, 1999
- ------------------------- Administration and
Norman R. Robertson Chief Financial Officer
(Principal Financial Officer)
/s/ DAVID H. BENTON, JR. Vice President and June 11, 1999
- ------------------------- Corporate Controller
David H. Benton, Jr. (Principal Accounting Officer)
/s/ LARRY R. HARRIS Director June 11, 1999
- -------------------------
Larry R. Harris
/s/ ROGER J. HEINEN, JR. Director June 11, 1999
- -------------------------
Roger J. Heinen, Jr.
/s/ MICHAEL L. MARK Director June 11, 1999
- -------------------------
Michael L. Mark
/s/ ARTHUR J. MARKS Director June 11, 1999
- -------------------------
Arthur J. Marks
/s/ SCOTT A. MCGREGOR Director June 11, 1999
- -------------------------
Scott A. McGregor
/s/ AMRAM RASIEL Director June 11, 1999
- -------------------------
Amram Rasiel
<PAGE> 7
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
4.1 Progress Software Corporation 1991 Employee Stock Purchase Plan
5.1 Opinion of Counsel
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
<PAGE> 1
EXHIBIT 4.1
PROGRESS SOFTWARE CORPORATION
1991 EMPLOYEE STOCK PURCHASE PLAN
(Amended and Restated as of March 10, 1998)
1. PURPOSE
The Progress Software Corporation Employee Stock Purchase Plan (the
"Plan") is intended to provide a method whereby employees of Progress
Software Corporation (the "Company") will have an opportunity to
acquire an ownership interest (or increase an existing ownership
interest) in the Company through the purchase of shares of the Common
Stock of the Company. It is the intention of the Company that the Plan
qualify as an "employee stock purchase plan" under Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions
of the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that
section of the Code.
2. DEFINITIONS
(a) "Eligible Compensation" for purposes of the Plan means:
(i) with respect to individuals who are hourly employees, base
salary plus payments for overtime and bonuses or (ii) with
respect to individuals who are salaried employees, base salary
plus sales commissions and bonuses. Eligible Compensation
shall not include any deferred compensation other than
contributions by an individual through a salary reduction
agreement to a cash or deferred plan pursuant to Section
401(k) of the Code or to a cafeteria plan pursuant to Section
125 of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Committee" means the Compensation Committee of the Board.
(d) "Common Stock" means the common stock, $.01 par value per
share, of the Company.
(e) "Company" shall also include any subsidiary of Progress
Software Corporation designated as a participant in the Plan
by the Board, unless the context otherwise requires.
(f) "Employee" means any person who is customarily employed at
least 20 hours per week and more than five months in a
calendar year by (i) the Company or (ii) any subsidiary
corporation.
(g) "Subsidiary Corporation" shall mean any present or future
corporation which is or would constitute a "subsidiary
corporation" as that term is defined in Section 424(f) of the
Code.
3. ELIGIBILITY
(a) Participation in the Plan is completely voluntary.
Participation during any one or more of the Offering Periods,
as hereafter defined, under the Plan shall neither limit, nor
require, participation during any other Offering Period.
(b) Each Employee of the Company and its Subsidiary
Corporations shall be eligible to participate in the Plan on
any Offering Period commencement date, as hereafter
identified, following the completion of three months of
continuous service with the Company and/or its Subsidiary
Corporations; provided, however, that no Employee shall be
granted an option under the Plan:
<PAGE> 2
(i) if, immediately after the grant, such Employee
would own stock, and/or hold outstanding options to
purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of
stock of the Company or any Subsidiary Corporation;
for purposes of this Paragraph the rules of Section
424(d) of the Code shall apply in determining stock
ownership of any employee; or
(ii) which permits his/her rights to purchase stock
under all Section 423 employee stock purchase plans
of the Company and its Subsidiary Corporations to
exceed US $25,000 of the fair market value of the
stock (determined at the time such option is granted)
for each calendar year in which such option is
outstanding; for purposes of this Paragraph, the
rules of Section 423 (b)(8) of the Code shall apply.
4. OFFERING PERIOD / EXERCISE PERIOD
The right to purchase stock hereunder shall be made available by a
series of "Exercise Periods" during an "Offering Period" to employees
eligible in accordance with Paragraph 3 hereof.
Offering Period. Each participant in the Plan will be enrolled in an
Offering Period. An Offering Period has a duration of 27 consecutive
months unless a participant: withdraws from the Plan, ceases to be an
eligible employee, or is automatically transferred to a new Offering
Period. Offering Periods commence on each of the following dates:
January 1, April 1, July 1, or October 1.
Exercise Period. Each 27-month Offering Period consists of nine
consecutive Exercise Periods lasting three months each. Exercise
Periods start on January 1, April 1, July 1, and October 1.
Exercise Date. During each 27-month Offering Period there will be nine
Exercise Dates. An Exercise Date is the last date of each Exercise
Period. Therefore, Exercise Dates will be as follows: March 31, June
30, September 30, and December 31.
5. PARTICIPATION
Any eligible employee may become a participant by completing a payroll
deduction authorization form provided by the Company and filing it with
their payroll department and the Plan administrator 20 days prior to an
Offering Period commencement date.
A participant may be enrolled in only one Offering Period at a time. A
participant will be re-enrolled automatically as a participant in
future Offering Periods when an Offering Period in which such
participant is currently enrolled ends, unless such participant
withdraws from participation, is terminated or terminates employment,
becomes ineligible to participate for any reason, or the Plan
terminates.
6. PAYROLL DEDUCTIONS
(a) At the time a participant files his/her authorization for
a payroll deduction, he/she shall specify a percentage of
his/her Eligible Compensation to be deducted from his/her pay
on each payday during any Offering Period in which he/she is a
participant in the Plan. Such percentage shall be in
increments of one percent (1%) up to a maximum percentage to
be established for each Offering Period by the Committee.
(b) Payroll deductions for participants shall commence on the
Offering Period commencement date following the effective date
of his/her authorization for such payroll deductions.
(c) A participant may, at any time, reduce the percentage (but
not below 1%) of his/her Eligible Compensation to be deducted
on each payday that he/she participates in the Plan. A
reduction in
<PAGE> 3
payroll deductions will be effective on the seventh business
day following receipt of notice by the Company and will apply
to the first full pay period commencing after such date.
(d) A participant may, at any time, increase the percentage
(but not above the maximum established by the Committee) of
his/her Eligible Compensation to be deducted on each payday
that the he/she participates in the Plan. An increase in
payroll deductions will be effective on the seventh business
day following receipt of notice by the Company and will apply
to the first full Exercise Period commencing after such date.
(e) All payroll deductions made for a participant shall be
credited to his/her account under the Plan. A participant may
not make any separate cash payment into such account.
7. GRANTING OF OPTION / EXERCISE PRICE
(a) On the commencement date of each Offering Period, a
participant in such Offering Period shall be deemed to have
been granted an option to purchase on each Exercise Date
during such Offering Period (at the per share exercise price)
up to a number of shares of the Company's Common Stock
determined by dividing such participant's payroll deductions
accumulated during the applicable Exercise Period by
eighty-five (85%) of the market value per share of the
Company's Common Stock on the Offering Period commencement
date or on the Exercise Date, whichever is lower, provided
that the number of shares subject to the option shall not
exceed 200% of the number of shares determined by dividing 10%
of the participant's Eligible Compensation over the Offering
Period (determined as of the Offering Period commencement
date) by 85% of the market value per share of the Company's
Common Stock on the Offering Period commencement date, subject
to the limitations set forth in Section 3 (b) and 12 hereof.
The Market value per share of the Company's Common Stock shall
be determined as provided in Section 7(b) herein.
(b) The exercise price per share to be paid for Common Stock
purchased under the Plan shall be equal to the lower of 85% of
the market value per share of the Common Stock on the first
day of the Offering Period in which the Exercise Date falls,
or 85% of the market value per share of the Common Stock on
the Exercise Date. Market value per share of the Common Stock
on a particular date is the closing price (or closing bid, if
no sales were reported) of the Common Stock on the National
Association of Securities Dealers Automated Quotation System,
Inc. ("NASDAQ"), or, in the event the Common Stock is listed
on a stock exchange, the market value per share shall be the
closing price on such exchange, for that date, as reported in
the Wall Street Journal. If a closing price is not available
for a particular date, then the market value per share to be
used for that date will be the closing stock price as of the
last preceding trading day on the NASDAQ or a stock exchange
for which a closing price is available. If the Common Stock is
not listed on the NASDAQ or a stock exchange then the market
value per share will be determined by the Committee.
For purpose of calculating the number of shares of Common
Stock to be purchased with payroll deductions from
participants outside of the United States, the Company will
use the exchange rate published in the Wall Street Journal on
the Exercise Date.
8. EXERCISE OF OPTION
Unless a participant withdraws from the Plan or is terminated from
participating in the Plan pursuant to paragraph 10 hereof, his/her
option for the purchase of Common Stock will be deemed to have been
exercised automatically on each Exercise Date for the purchase of the
number of full shares of Common Stock which the accumulated payroll
deductions in his/her account at that time will purchase at the price
of the Common Stock as determined in Paragraph 7 (b). Fractional shares
will not be issued under the Plan and any excess funds in a
participant's account representing any fractional shares after Common
Stock
<PAGE> 4
purchases made on each Exercise Date will be automatically carried
forward to the next Exercise Period unless the participant elects, by
written notice to their payroll department, to have the excess returned
to him/her.
9. NEW OFFERING PERIOD
If the market value of the Common Stock is lower on an Exercise Date
than it was on the first day of the Offering Period, then all
participants in such Offering Period will be automatically withdrawn
from that Offering Period immediately after the participants' exercise
of the option on such Exercise Date, and such participants will be
automatically re-enrolled in a new Offering Period commencing
immediately after that Exercise Date. The old Offering Period
terminates upon such automatic re-enrollment.
10. WITHDRAWAL AND TERMINATION
(a) Prior to the Exercise Date for each Exercise Period, any
participant may withdraw all but not less than all of his/her
payroll deductions under the Plan for such Exercise Period by
giving written notice to his/her payroll department. All of
the participant's payroll deductions credited to such account
will be paid to him/her after receipt of notice of withdrawal,
without interest, and no future payroll deductions will be
made. Withdrawal from an Exercise Period will be deemed to be
a withdrawal from the Offering Period which includes such
Exercise Period. The Company will treat any attempt to borrow
by a participant on the security of accumulated payroll
deductions as an election to withdraw such deductions.
(b) A participant may elect not to exercise an option by
giving written notice to their payroll department no less than
seven (7) business days prior to the applicable Exercise Date.
Any such election will be treated as a withdrawal pursuant to
section (a) above.
(c) A participant's election not to participate in, or
withdrawal from, any Offering Period or Exercise Period within
such Offering Period will not have any effect upon his/her
eligibility to participate in any succeeding Offering Period
or in any similar plan which may hereafter be adopted by the
Company.
(d) Upon termination of the participant's employment for any
reason, including retirement but excluding death, all of
his/her payroll deductions accrued during the relevant
Exercise Period will be returned to the participant.
(e) Upon termination of the participant's employment because
of death, the participant's beneficiary (as defined in
Paragraph 14) shall have the right to elect, by written notice
given to the participant's former payroll department prior to
the expiration of a period of 90 days commencing with the date
of the death of the participant but in no event later than the
applicable Offering Period, either
(i) to withdraw all of the payroll deductions
credited to the participant's account under the Plan;
or
(ii) to exercise the participant's option for the
purchase of stock on the Exercise Date next following
the date of the participant's death for the purchase
of the number of full shares which the participant's
accumulated payroll deductions, at the date of the
participant's death, will purchase at the applicable
price, and any excess deductions will be returned to
said beneficiary. In the event that no such written
notice of election shall be duly received by the
appropriate payroll department of the Company, the
beneficiary shall automatically be deemed to have
elected to withdraw the payroll deductions credited
to the participant at the date of the participant's
death and the same will be paid promptly to said
beneficiary.
<PAGE> 5
11. INTEREST
No interest will be paid or allowed on any money paid into the Plan or
credited to any participant.
12. STOCK
(a) The maximum number of shares of Common Stock available for
issuance and purchase by participants under the Plan, subject
to adjustment upon changes in capitalization of the Company as
provided in Paragraph 17, shall be 500,000 shares of Common
Stock, par value $.01 per share, of the Company. If on a given
Exercise Date the number of shares with respect to which
options are to be exercised exceeds the number of shares then
available, the Company shall make a pro rata allocation of the
shares available for delivery and distribution in an equitable
manner, with the balances of payroll deductions credited to
each participant under the Plan carried forward to the next
Exercise Period in the applicable Offering Period or returned
to the participant if the participant so chooses, by giving
written notice to their payroll department to this effect.
(b) The participant will have no interest in stock underlying
his/her option until such option has been exercised.
(c) The Committee, in its sole discretion, may establish a
minimum holding period, if any, for shares of stock acquired
pursuant hereto by any participant or his beneficiary pursuant
to Paragraph 14 hereof. Certificates representing said shares
of stock issued pursuant to this Plan may bear legends to that
effect.
13. ADMINISTRATION
The Plan shall be administered by the Committee. The interpretation and
construction of any provision of the Plan and adoption of rules and
regulations for administering the Plan shall be made by the Committee.
Determinations made by the Committee with respect to any matter or
provision contained in the Plan shall be final, conclusive and binding
upon the Company and upon all participants, their heirs or legal
representatives. Any rule or regulation adopted by the Committee shall
remain in full force and effect unless and until altered, amended, or
repealed by the Committee.
14. DESIGNATION OF BENEFICIARY
A participant shall file with their payroll department a written
designation of a beneficiary who is to receive any Common Stock and/or
cash under the Plan. Such designation of beneficiary may be changed by
the participant at any time by written notice. Upon the death of a
participant and upon receipt by the Company of proof of the identity
and existence at the participant's death of a beneficiary validly
designated by him under the Plan, the Company shall deliver such Common
Stock and/or cash to such beneficiary validly designated under the Plan
who is living at the time of such participant's death, the Company
shall deliver such Common Stock and/or cash to the executor or
administrator of the estate of the participant. No beneficiary shall
prior to the death of the participant by whom he has been designated,
acquire any interest in the Common Stock and/or cash credited to the
participant under the Plan.
15. TRANSFERABILITY
Neither payroll deductions credited to a participant nor any rights
with regard to the exercise of an option or to receive Common Stock
under the Plan may be assigned, transferred, pledged, or otherwise
disposed of in any way by the participant other than by will or the
laws of descent and distribution. Any such attempted assignment,
transfer, pledge, or other disposition shall be without effect, except
that the Company may treat such act as an election to withdraw funds in
accordance with Paragraph 10(a).
<PAGE> 6
16. USE OF FUNDS
All payroll deductions received or held by the Company under this Plan
may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such payroll deductions.
17. EFFECT OF CHANGES OF COMMON STOCK
If the Company shall subdivide or reclassify the Common Stock which has
been or may be optioned under this Plan, or shall declare thereon any
dividend payable in shares of such Common Stock, or shall take any
other action of a similar nature affecting such Common Stock, then the
number and class of shares of Common Stock which may thereafter be
optioned (in the aggregate and to any participant) shall be adjusted
accordingly and in the case of each option outstanding at the time of
any such action, the number and class of shares which may thereafter be
purchased pursuant to such option and the option price per share shall
be adjusted to such extent as may be determined by the Committee, with
the approval of independent public accountants and counsel, to be
necessary to preserve the rights of the holder of such option.
18. AMENDMENT OR TERMINATION
The Board may at any time terminate or amend the Plan. No such
termination shall affect options previously granted, nor may an
amendment make any change in any option theretofore granted which would
adversely affect the rights of any participant holding options under
the Plan.
19. NOTICES
All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly
given when received by the participant's payroll department.
20. MERGER OR CONSOLIDATION
If the Company shall at any time merge into or consolidate with another
corporation, the holder of each option then outstanding will thereafter
be entitled to receive at the next Exercise Date upon the exercise of
such option for each share as to which such option shall be exercised,
the securities or property which a holder of one share of the Common
Stock was entitled to upon and at the time of such merger or
consolidation. In accordance with this Paragraph and Paragraph 17, the
Committee shall determine the kind and amount of such securities or
property which such holder of an option shall be entitled to receive. A
sale of all or substantially all of the assets of the Company shall be
deemed a merger or consolidation for the foregoing purposes.
21. APPROVAL OF STOCKHOLDERS
The Plan is subject to the approval of the stockholders of the Company
at their next annual meeting or at any special meeting of the
stockholders for which one of the purposes of such a special meeting
shall be to act upon the Plan.
22. GOVERNMENTAL AND OTHER REGULATIONS
The Plan, and the grant and exercise of the rights to purchase shares
hereunder, and the Company's obligation to sell and deliver shares upon
the exercise of rights to purchase shares, shall be subject to all
applicable federal, state and foreign laws, rules and regulations, and
to such approvals by any regulatory or governmental agency as may, in
the opinion of counsel for the Company, be required. The Plan shall be
governed by, and construed and enforced in accordance with, the
provisions of Sections 421, 423 and 424
<PAGE> 7
of the Code and the substantive laws of the Commonwealth of
Massachusetts. In the event of any inconsistency between such
provisions of the Code and any such laws, said provisions of the Code
shall govern to the extent necessary to preserve favorable federal
income tax treatment afforded employee stock purchase plans under
Section 423 of the Code.
<PAGE> 1
EXHIBIT 5.1
Opinion of Counsel
FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-2170
TELEPHONE 617-832-1000 1615 L STREET, N.W., SUITE 850
FACSIMILE WASHINGTON, D.C. 20036
617-832-7000http://www.fhe.com TEL: 202-775-0600
FAX: 202-857-0140
June 11, 1999
Progress Software Corporation
14 Oak Park
Bedford, MA 01730
Ladies and Gentlemen:
We have acted as counsel for Progress Software Corporation, a
Massachusetts corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the offering of up to 300,000 shares (the "Shares") of
the Company's common stock, $.01 par value ("Common Stock"), issuable, either
under awards currently issued and outstanding or under awards issuable
subsequent to the date hereof, pursuant to the Progress Software Corporation
1991 Employee Stock Purchase Plan (the "Plan").
In arriving at the opinions expressed below, we have examined and
relied on the following documents:
(i) the Registration Statement;
(ii) the Plan;
(iii) the Restated Articles of Organization of the Company, as
amended as of the date hereof;
(iv) the By-Laws of the Company, as amended as of the date hereof;
and
(v) the records of meetings and consents of the Board of Directors
and stockholders of the Company provided to us by the Company.
<PAGE> 2
In addition, we have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such other records, documents
and instruments of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below. We have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all documents submitted to us as certified or
photostatic copies.
We express no opinion other than as to the laws of The Commonwealth of
Massachusetts.
Based upon the foregoing, we are of the opinion that the Company has
the corporate power necessary for the issuance of the Shares under the Plan, as
contemplated by the Registration Statement. The Shares have been duly authorized
and, when issued against payment of the agreed consideration therefor in
accordance with the respective exercise prices therefor as described in the
awards relating thereto and the Plan, will be validly issued, fully paid and
non-assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By /s/ Robert W. Sweet, Jr.
------------------------------------
A Partner
<PAGE> 1
EXHIBIT 23.1
Consent of Deloitte & Touche, LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Progress Software Corporation on Form S-8 of our report dated December 18, 1998,
appearing in the Annual Report on Form 10-K of Progress Software Corporation for
the year ended November 30, 1998.
/s/ DELOITTE & TOUCHE LLP
- -------------------------------
Boston, Massachusetts
June 11, 1999
