-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OsUATz2PmNd8owphRYrfcenRsn66HWJ1VCRGlukvdz0iBzTOm2ILXJxoTQ4hJznm kahBgYpkpbdqqXK3/ffYvg== 0000950137-04-009174.txt : 20041029 0000950137-04-009174.hdr.sgml : 20041029 20041029092108 ACCESSION NUMBER: 0000950137-04-009174 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20041029 DATE AS OF CHANGE: 20041029 EFFECTIVENESS DATE: 20041029 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SPSS INC CENTRAL INDEX KEY: 0000869570 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 362815480 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-120066 FILM NUMBER: 041104361 BUSINESS ADDRESS: STREET 1: 233 S WACKER DR CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3123292400 MAIL ADDRESS: STREET 1: 233 SOUTH WACKER DRIVE CITY: CHICAGO STATE: IL ZIP: 60606 S-8 1 c88987sv8.txt REGISTRATION STATEMENT AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 29, 2004 REGISTRATION NO. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SPSS INC. --------------------------------------------------- (Exact name of Registrant as specified in its charter) DELAWARE 36-2815480 - ------------------------------- ------------------ (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 233 SOUTH WACKER DRIVE CHICAGO, ILLINOIS 60606 (312) 651-3000 ----------------------------------------------------------------------- (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) AMENDED AND RESTATED 2002 EQUITY INCENTIVE PLAN RAYMOND H. PANZA EXECUTIVE VICE PRESIDENT, CORPORATE OPERATIONS, CHIEF FINANCIAL OFFICER AND SECRETARY SPSS Inc. 233 South Wacker Drive 11th Floor Chicago, Illinois 60606 (312) 651-3000 -------------------------------------------------- (Name, address, including zip code, and telephone number, including area, code, of agent for service) Copies to: Lawrence R. Samuels, Esq. David S. Guin, Esq. McGuireWoods LLP 77 West Wacker Drive Suite 4100 Chicago, Illinois 60601 (312) 849-8100 CALCULATION OF REGISTRATION FEE
Proposed Amount maximum Proposed Amount of Title of to be offering price aggregate registration Securities to be registered registered(1) per share(2) offering price(3) fee - ---------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value 500,000 $12.705 $6,352,500 $804.86 ====================================================================================================
(1) The securities being registered include a maximum of 500,000 shares issuable upon the exercise of options under the Amended and Restated 2002 Equity Incentive Plan assuming full participation of employees under that plan. (2) Solely for the purpose of calculating the registration fee, the offering price per share, the aggregate offering price and the amount of the registration fee have been computed in accordance with Rule 457(c) under the Securities Act of 1933, as amended. Accordingly, the price per share of common stock has been calculated to be equal to the average of the high and low prices for a share of common stock as reported by the NASDAQ National Market on OCTOBER 26, 2004, which is a specified date within five business days prior to the original date of filing of this Registration Statement. (3) Solely for the purpose of calculating the registration fee, the proposed aggregate offering price has been estimated in accordance with Rule 457(h) promulgated under the Securities Act. EXPLANATORY NOTE This registration statement registers: - Shares of common stock that may be issued (when and if vested) under the SPSS Inc. Amended and Restated 2002 Equity Incentive Plan (we refer to it as the "2002 Plan"); - Certain resales of shares of common stock that may be issued (when and if vested) under the 2002 Plan. This registration statement contains two parts. The first part contains a reoffer prospectus prepared in accordance with Part I of Form S-3, pursuant to General Instruction C to Form S-8. The reoffer prospectus may be used for reoffers or resales of the shares that have been acquired by the selling stockholders. The second part contains information required in the registration statement under Part II of Form S-8. The information specified by Part I of Form S-8 is not being filed with the Securities and Exchange Commission as permitted by the Note in Part I of Form S-8. This information will be sent or given to the participants in the 2002 Plan as specified by Rule 428 under the Securities Act of 1933. REOFFER PROSPECTUS SPSS INC. Common Stock This reoffer prospectus relates to an offering of shares of SPSS common stock, which may be issued to certain selling stockholders upon the exercise of stock options granted under the SPSS Inc. Amended and Restated 2002 Equity Incentive Plan (we refer to it as the "2002 Plan"). The common stock being registered may be offered for the account of the stockholders who may from time to time be identified under the section heading "SELLING STOCKHOLDERS" in a supplement to this reoffer prospectus. The selling stockholders will receive all of the proceeds from any sales of the shares of our common stock offered under this reoffer prospectus. Although SPSS will not receive any proceeds from the selling stockholders' sale of shares of our common stock offered under this reoffer prospectus, we will receive proceeds from any cash exercises of the options by the selling stockholders under the 2002 Plan. All proceeds received as a result of the exercise of those options will be used as working capital for our operations. The shares of our common stock issued to the selling stockholders are being registered to permit the selling stockholders to sell the shares from time to time in the public market. The selling stockholders may sell the shares of common stock on the NASDAQ National Market, in negotiated transactions, or through a combination of these methods, at prevailing market prices or at privately negotiated prices either directly or through agents or broker-dealers, or through any other means described in the section "PLAN OF DISTRIBUTION," beginning on Page 10. Our common stock is quoted on the NASDAQ National Market under the symbol "SPSS". On OCTOBER 28, 2004, the last reported sale price of our common stock on the NASDAQ National Market was $13.82 per share. Our address is 233 South Wacker Drive, Chicago, Illinois 60606 and our phone number is (312) 651-3000. The shares offered by means of this reoffer prospectus involve a high degree of risk. You should purchase shares only if you can afford a loss of all or a portion of your investment. SEE "RISK FACTORS" BEGINNING ON PAGE 2. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE COMMON STOCK TO WHICH THIS REOFFER PROSPECTUS RELATES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS REOFFER PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this reoffer prospectus is OCTOBER 29, 2004. TABLE OF CONTENTS
Page ---- FORWARD-LOOKING STATEMENTS.......................................................... 2 RISK FACTORS........................................................................ 2 USE OF PROCEEDS..................................................................... 9 SELLING STOCKHOLDERS................................................................ 9 PLAN OF DISTRIBUTION................................................................ 10 LEGAL MATTERS....................................................................... 11 EXPERTS............................................................................. 11 WHERE YOU CAN FIND MORE INFORMATION................................................. 12 INFORMATION INCORPORATED BY REFERENCE............................................... 12
1 FORWARD-LOOKING STATEMENTS The following is a "safe harbor" statement under the Private Securities Litigation Reform Act of 1995. This reoffer prospectus contains forward-looking statements within the meaning of section 27A of the Securities Act of 1933 and section 21E of the Securities Exchange Act of 1934. We may also make written forward-looking statements in our periodic reports to the SEC, in our press releases and other written materials and in oral statements made by our officers, directors or employees to third parties. Statements that are not historical facts, including statements about our expectations, beliefs, intentions, or future strategies, are forward-looking statements. These statements are based on the beliefs and assumptions of our management and on information currently available to us. Forward-looking statements include statements preceded by, followed by or that include the words "believes," "expects," "anticipates," "intends," "plans," "estimates," "designed," "may," "could," "predicts" or similar language. Because we are unable to control or predict many factors that will determine our future performance, including financial results, forward-looking statements are not guarantees of future performance. They involve risks, uncertainties and assumptions. Our future results may differ materially from those expressed in the forward-looking statements contained in this reoffer prospectus and in the information incorporated by reference in this reoffer prospectus. See "WHERE YOU CAN FIND MORE INFORMATION." We caution you that a number of important factors could cause actual results to differ materially from those contained in any forward-looking statement. Specific factors that might cause these differences are discussed throughout this reoffer prospectus, including the section entitled "RISK FACTORS." The Company's management believes these forward-looking statements are reasonable. However, because these statements are based on current expectations, you should not place undue reliance on these forward-looking statements. Forward-looking statements speak only as of the date they are made, and we undertake no obligation to update publicly any of them in light of new information or future events. RISK FACTORS You should carefully consider the risks described below before making an investment decision. The risks and uncertainties described below are not the only ones facing SPSS. Additional risks and uncertainties not presently known to SPSS, or those it currently believes are immaterial, could also impair its business operations. If any of the following risks actually occurred, the business and financial conditions of SPSS or the results of its operations could be materially adversely affected, the trading price of SPSS common stock could decline, and you could lose all or part of your investment. OUR FINANCIAL RESULTS AND STOCK PRICE MAY BE AFFECTED BY QUARTERLY FLUCTUATIONS The quarterly revenue and operating results of SPSS have varied in the past and may continue to do so in the future. Future revenues and operating results will depend upon, among other factors: - the number and timing of product updates and new product introductions; - delays in product development and introduction; - purchasing schedules of its customers; - changes in foreign currency exchange rates; 2 - changes in prescribed accounting rules and practices; - product and market development expenditures; - the timing of product shipments; - changes in product mix; - timing, costs and effects of acquisitions; and - general economic conditions. Because expense levels are to a large extent based on its forecasts of future revenues, SPSS operating results may be adversely affected if our future revenues fall below expectations. Accordingly, SPSS believes that quarter-to-quarter comparisons of its results of operations may not be meaningful and should not be relied upon as an indication of future performance. SPSS has historically operated with very little backlog because its products are generally shipped as orders are received. As a result, revenues in any quarter are dependent on orders shipped and licenses renewed in that quarter. SPSS has experienced a seasonal pattern in its operating results, with the fourth quarter typically having the highest operating income. In addition, the timing and amount of the Company's revenues may be affected by a number of factors that make estimation of operating results before the end of a quarter uncertain. A significant portion of the Company's operating expenses are relatively fixed, and planned expenditures are based primarily on revenue forecasts. The variable profit margins on modest increases in sales volume at the end of the quarters are significant and should SPSS fail to achieve these revenue increases, net income could be materially affected. Generally, if revenues do not meet its expectations in any given quarter, SPSS operating results will be adversely affected. There can be no assurance that profitability on a quarterly or annual basis can be achieved or sustained in the future. SPSS MAY BE UNSUCCESSFUL IN INTEGRATING RECENT ACQUISITIONS In recent years, SPSS has made a significant number of acquisitions, including the acquisition of businesses based outside of the United States. SPSS faces challenges and business integration issues with its February 2001 merger of one of the wholly-owned subsidiaries of SPSS with and into ShowCase Corporation, a Minnesota corporation, the October 2001 purchase of specified assets of and strategic alliance with America Online, Inc., its December 2001 merger of one of the wholly-owned subsidiaries of SPSS with and into NetGenesis Corp., a Delaware corporation, its February 2002 acquisition of all of the outstanding shares of capital stock of LexiQuest, S.A., a corporation organized under the laws of France, its June 2002 acquisition of the assets of netExs, a Wisconsin limited liability company, and its November 2003 acquisition of all of the outstanding shares of capital stock of Data Distilleries B.V., a corporation organized under the laws of the Netherlands. SPSS MAY NOT RESPOND ADEQUATELY TO RAPID TECHNOLOGICAL CHANGES The computer software industry is characterized by rapid technological advances, changes in customer requirements, as well as frequent enhancements to and introductions of technologies. The future success of SPSS will depend upon its ability to enhance its existing software and introduce new software products that keep pace with technological developments, respond to evolving customer requirements and achieve market acceptance. In particular, SPSS believes it must continue to respond 3 quickly to users' needs for greater functionality, improved usability and support for new hardware and operating systems. Any failure by SPSS to respond adequately to technological developments and customer requirements, or any significant delays in software development or introduction, could result in loss of revenues. In the past, SPSS has, on occasion, experienced delays in the introduction of new software and enhancements to existing technology, primarily due to difficulties with particular operating environments and problems with software provided by third parties. The extent of these delays has varied depending upon the size and scope of the project and the nature of the problems encountered. These delays have most often resulted from "bugs" encountered in working with new versions of operating systems and other third party software, and "bugs" or unexpected difficulties in existing third party software which complicate integration with SPSS software. From time to time, SPSS has discovered "bugs" in its software that are resolved through maintenance releases or through periodic updates depending upon the seriousness of the defect. There can be no assurance that SPSS will be successful in developing and marketing new software or enhancements to existing technology on a timely basis or that SPSS will not experience significant delays or defects in its software in the future, which could have a material adverse effect on SPSS. In addition, there can be no assurance that new software or enhancements to existing technology developed by SPSS will achieve market acceptance or that developments by others will not render SPSS technologies obsolete or noncompetitive. SPSS MAY FACE BUSINESS DECLINES DUE TO OUR INTERNATIONAL OPERATIONS Revenues from operations outside of North America accounted for approximately 51% in 2001, 49% in 2002 and 51% in 2003. SPSS expects that revenues from international operations will continue to represent a large percentage of its net revenues and that this percentage may increase, particularly as SPSS further "localizes" products by translating them into additional languages and expands its operations through acquisitions of companies outside the United States. A number of risk factors may affect our international revenues, including: - greater difficulties in accounts receivable collection; - longer payment cycles; - exposure to currency fluctuations; - political and economic instability; and - the burdens of complying with a wide variety of foreign laws and regulatory requirements. SPSS also believes that it is exposed to greater levels of software piracy in certain international markets where weaker protection is afforded to intellectual property. As SPSS expands its international operations, the risks described above could increase and, in any event, could have a material adverse effect on SPSS. THE SPSS STOCK PRICE MAY EXPERIENCE VOLATILITY There has been significant volatility in the market prices of securities of technology companies, including SPSS, and, in some instances, this volatility has been unrelated to the operating performance of those companies. Market fluctuations may adversely affect the price of our common stock. SPSS also believes that, in addition to factors such as interest rates and economic conditions which affect 4 stock prices generally, some, but not all, of the factors which could result in fluctuations in our stock price include: - announcements of new products by SPSS or its competitors; - quarterly variations in financial results; - recommendations and reports of analysts; - acquisitions; and - other factors beyond the control of SPSS. SPSS RELIES ON THIRD PARTIES FOR CERTAIN SOFTWARE SPSS licenses software from third parties. Some of this licensed software is embedded in the products of SPSS, and some is offered as add-on products. If these licenses are discontinued, or become invalid or unenforceable, there can be no assurance that SPSS will be able to develop substitutes for this software independently or to obtain alternative sources in a timely manner. Any delays in obtaining or developing substitutes for licensed software could have a material adverse effect on SPSS. SPSS RELIES ON THIRD PARTIES FOR SOFTWARE DISTRIBUTION In January 1997, SPSS entered into a Banta Global Turnkey Software Distribution Agreement under which Banta Global Turnkey manufactures, packages and distributes the Company's software products to the Company's domestic and international customers and various international subsidiaries. The Banta agreement had an initial three-year term and automatically renews thereafter for successive periods of one year. The Banta agreement was renewed in January 2004. Either party may terminate the Banta agreement for cause by written notice if the other materially breaches its obligations. If Banta fails to perform adequately any of its obligations under the Banta agreement, the Company's operating results could be materially adversely affected. CHANGES IN PUBLIC EXPENDITURES MAY ADVERSELY AFFECT SPSS A significant portion of the revenues of SPSS comes from licenses of its software directly to government entities both internationally and in the United States. In addition, significant amounts of the revenues of SPSS come from licenses to academic institutions, healthcare organizations and private businesses that contract with or are funded by government entities. Government appropriations processes are often slow and unpredictable and may be affected by factors outside the Company's control. In addition, proposals are currently being made in various countries to reduce government spending. Reductions in government expenditures and termination or renegotiation of government-funded programs or contracts could have a material adverse effect on SPSS. In addition, declines in overall levels of economic activity could also have a material adverse impact on SPSS. SPSS MAY BE UNABLE TO CONTINUE TO COMPETE WITH COMPANIES IN ITS INDUSTRIES THAT HAVE FINANCIAL OR OTHER ADVANTAGES The Company's historical market for statistical software is both highly competitive and fragmented. SPSS is among the largest companies in the statistical software market, and, based upon sales and comparative assessments in trade publications, SPSS believes that it competes effectively 5 against its competitors. SPSS considers its primary worldwide competitor to be the larger and better-financed SAS Institute, although SPSS believes that the SAS Institute's revenues are derived principally from products for purposes other than statistical analysis. StatSoft Inc., STATA, and Minitab, Inc. are also competitors, although their annual revenues from statistical products are believed to be considerably less than the revenues of SPSS. In addition to competition from other statistical software companies, SPSS also faces competition from providers of software for specific statistical applications. In the data mining, customer relationship management and business performance measurement markets, SPSS faces competition from many larger and more well funded companies. These companies include the SAS Institute, IBM, Fair Isaacs/HNC Corporation, NCR, Oracle, and others, and recent entrants, like E.piphany and Net Perceptions, many of which specialize in customer relationship management in e-commerce settings. With the exception of the SAS Institute, these competitors do not currently offer the range of analytical capability SPSS offers and, as a result, are both competitors and potential partners for SPSS technology. In all markets, SPSS competes primarily on the basis of the usability, functionality, performance, reliability and connectivity of its software. The significance of each of these factors varies depending upon the anticipated use of the software and the analytical training and expertise of the customer. To a lesser extent, SPSS competes on the basis of price and thus maintains pricing and licensing policies to meet market demand. SPSS believes it is able to compete successfully because of the highly usable interfaces, comprehensive analytical capabilities, efficient performance characteristics, local language versions, consistent quality, and connectivity features of its software, as well as its worldwide distribution capabilities and widely recognized name. In the future, SPSS may face competition from new entrants into its markets. SPSS could also experience competition from companies in other sectors of the broader market for business intelligence software, like providers of OLAP (On-Line Analytical Processing) and analytical application software, as well as from companies in other sectors of the broader market for customer relationship management software, like providers of sales force automation and collaborative software, who could add advanced analytical functionality to their existing products. Some of these potential competitors have significantly more capital resources, marketing experience and research and development capabilities than SPSS. Competitive pressures from the introduction of new solutions and products by these companies or other companies could have a material adverse effect on SPSS. There can be no assurance that SPSS will be able to compete successfully in the future. SPSS DEPENDS ON KEY EXECUTIVES. A LOSS OF THESE EXECUTIVES AND OTHER PERSONNEL COULD NEGATIVELY IMPACT OUR OPERATIONS SPSS is dependent on the efforts of various executives and key employees, including its President and Chief Executive Officer, Jack Noonan. The continued success of SPSS will depend in part on its ability to attract and retain highly qualified technical, managerial, sales, marketing and other personnel. Competition for highly qualified personnel is intense. The inability of SPSS to continue to attract or retain highly qualified personnel could have a material adverse effect on its financial position and results of operation. No life insurance policies are maintained on SPSS key personnel. 6 SPSS MAY NOT RECEIVE THE FULL BENEFITS OF ITS INTELLECTUAL PROPERTY PROTECTIONS The analytical algorithms incorporated in SPSS software are not proprietary. SPSS believes that the proprietary technology constituting a portion of its software determines the speed and quality of displaying the results of computations, the ability of its software to work in conjunction with third party software, and the ease of use of its software. The success of SPSS will depend, in part, on its ability to protect the proprietary aspects of its software. Attempts by SPSS to protect its proprietary software with trade secret laws and internal nondisclosure safeguards, as well as copyright, trademark and patent laws and contractual restrictions on copying, disclosure and transferability that are incorporated into its software license agreements. SPSS licenses its software only in the form of executable code, with contractual restrictions on copying, disclosures and transferability. Except for licenses of its products to users of large system products and annual licenses of its desktop products, SPSS licenses its products to end-users by use of a "shrink-wrap" license, as is customary in the industry. The source code for all of SPSS software is protected as a trade secret and as unpublished copyrighted work or patents. In addition, SPSS has entered into confidentiality and nondisclosure agreements with its key employees. Despite these restrictions, the possibility exists for competitors or users to copy aspects of SPSS products or to obtain information which SPSS regards as a trade secret. Preventing unauthorized use of computer software is difficult, and software piracy is expected to be a persistent problem for the packaged software industry. These problems may be particularly acute in international markets. In addition, the laws of various countries in which SPSS software is or may be licensed do not protect its software and intellectual property rights to the same extent as the laws of the United States. Despite the precautions taken by SPSS, it may be possible for unauthorized third parties to reverse engineer or copy SPSS products or obtain and use information that SPSS regards as proprietary. There can be no assurance that the steps taken by SPSS to protect its proprietary rights will be adequate to prevent misappropriation of its technology. Although SPSS software has never been the subject of an infringement claim, there can be no assurance that third parties will not assert infringement claims against SPSS in the future or that any infringement assertion will not result in costly litigation or require SPSS to obtain a license to use the intellectual property of third parties. There can be no assurance that these licenses will be available on reasonable terms, or at all. There can also be no assurance that competitors of SPSS will not independently develop technologies that are substantially equivalent or superior to SPSS technologies. CERTAIN STOCKHOLDERS AND OFFICERS AND DIRECTORS MAY CONTROL CORPORATE ACTIONS DUE TO THEIR OWNERSHIP OF SPSS STOCK The executive officers and directors of SPSS beneficially own a significant percentage of its outstanding shares of common stock, currently estimated to be approximately 10.47%. As a result, the officers and directors may be able to influence important corporate decisions that require stockholder approval. The Norman H. Nie Revocable Trust Dated March 15, 1991 (a trust beneficially controlled by Norman H. Nie, the chairman of our board of directors) and affiliates of the Norman H. Nie Trust currently own approximately 4.25% of the outstanding shares of SPSS common stock. If the Norman H. Nie Trust and affiliates of the Norman H. Nie Trust own in the aggregate at least 12.5% of the outstanding shares of SPSS common stock, the Norman H. Nie Trust would be entitled to nominate a director for inclusion in the management slate for election to the Board of Directors of SPSS. 7 Because of the combined voting power of the officers and directors of SPSS, these individuals acting as a group may be able to influence its affairs and business, including any determination with respect to a change in control of SPSS, future issuances of SPSS common stock or other securities, declaration of dividends on SPSS common stock and the election of directors. This influence could have the effect of delaying, deferring or preventing a change of control of SPSS which could deprive SPSS stockholders of the opportunity to sell their shares of common stock at prices higher than prevailing market prices. ANTI-TAKEOVER PROTECTIONS MAY MAKE IT DIFFICULT FOR A THIRD PARTY TO ACQUIRE SPSS SPSS maintains a stockholder Rights Agreement which was adopted by the Board in 1998 and amended in June 2004. The Rights Agreement and common stock purchase rights issued in connection with the Right Agreement are intended to ensure that the Company's stockholders receive fair and equal treatment in the event of a proposed takeover of SPSS. The Rights Agreement may discourage a potential acquirer from acquiring control of SPSS. The SPSS Certificate of Incorporation and bylaws contain a number of provisions, including provisions requiring an 80% super-majority stockholder approval of specified actions and provisions for a classified Board of Directors, which would make the acquisition of SPSS, by means of an unsolicited tender offer, a proxy contest or otherwise, more difficult. The bylaws of SPSS provide for a staggered board of directors so that only one-third of the total number of directors are replaced or re-elected each year. Therefore, potential acquirers of SPSS may face delays in replacing the existing directors. Senior executives and other officers of SPSS may be entitled to substantial payments in the event of their termination without cause or constructive termination following a change of control of SPSS. These payments could have the effect of discouraging a potential acquirer from acquiring control of SPSS. SALES OF SPSS STOCK AVAILABLE FOR FUTURE USE COULD DEPRESS THE STOCK PRICE OF SPSS In addition to the shares of common stock which are outstanding, as of August 31, 2004, there were vested options outstanding held by management to purchase approximately 1,286,304 additional shares of common stock, with an average exercise price of $15.98 per share, and unvested options to purchase approximately 415,952 additional shares of common stock. SPSS has also established a stock purchase plan available to employees of SPSS, which permits employees to acquire shares of common stock at the end of each quarter at 85% of the market price of the common stock as of the day after the end of the quarter. No prediction can be made as to the effect, if any, that future sales, or the availability of shares of SPSS common stock for future sales, will have on the market price prevailing from time to time. Sales of substantial amounts of common stock by SPSS or by stockholders who hold "restricted securities," or the perception that these sales may occur, could adversely affect prevailing market prices for the common stock. 8 USE OF PROCEEDS All of the shares of common stock being offered by means of this reoffer prospectus will be sold by the selling stockholders, who will receive all proceeds from any sales. We will, however, receive proceeds from any cash exercises of the options by the selling stockholders under the 2002 Plan. All proceeds received as a result of the exercise of those options will be used as working capital for our operations. In addition, other than the completion and filing of this registration statement, we will not participate in the reoffering or sale of the shares of common stock by the selling stockholders. SELLING STOCKHOLDERS When an affiliate stockholder notifies SPSS that he or she intends to sell any shares of common stock issued to him or her upon the exercise of a stock option granted under the 2002 Plan, we intend to file a supplement to this reoffer prospectus to identify the name of each selling stockholder and the number of shares of common stock to be reoffered by that selling stockholder. Specifically, SPSS will update the following table to identify information with respect to the beneficial ownership of our common stock by each selling stockholder immediately before the offering and as adjusted to reflect the sale of shares of SPSS common stock under the reoffering. The selling stockholders identified in any supplement to this reoffer prospectus may from time to time offer the shares of common stock offered by means of this reoffer prospectus. We do not know when or in what amounts the selling stockholders may offer shares for resale and we cannot assure you that the selling stockholders will sell any or all of the shares offered by means of this reoffer prospectus.
Shares Beneficially Shares Beneficially Owned Before the Number of Shares Owned After the Offering(1) Available for Offering(2) ------------------- Reoffer and Sale ---------------------------- Selling Stockholders Number Percentage Hereby Number Percentage - -------------------- ------ ---------- ---------------- ------ ----------
(1) SPSS will rely on information provided by the selling stockholders to determine the number of shares of our common stock which the selling stockholders will own as of a particular date before the offering. (2) Assumes the sale of all shares that may be sold in the offering, and that no other shares beneficially owned by the selling stockholders are sold. 9 PLAN OF DISTRIBUTION The selling stockholders may, from time to time, sell all or a portion of the shares covered by this reoffer prospectus by one or more of the following methods: - on the NASDAQ National Market, or such other exchange on which the SPSS common stock may from time to time be trading; - in privately negotiated transactions or otherwise; - at fixed prices that may be changed; - at market prices prevailing at the time of the sale; - at prices related to such market prices or at prices otherwise negotiated; - block trades in which the broker or dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; - purchases by a broker or dealer as principal; - an exchange distribution in accordance with the rules of such exchange; - ordinary brokerage transactions and transactions in which the broker solicits purchasers; - short sales; or - a combination of any of the above methods of sale. In effecting sales, brokers and dealers engaged by the selling stockholders may arrange for other brokers or dealers to participate. Brokers or dealers may receive commissions or discounts from the selling stockholders, or, if any broker-dealer acts as agent for the purchaser of the shares, from the purchaser, in amounts to be negotiated which are not expected to exceed those customary in the types of transactions involved. Broker-dealers may agree with the selling stockholders to sell a specified number of shares at a stipulated price per share. To the extent a broker-dealer is unable to sell a specified number of shares acting as agent for the selling stockholders, it will purchase as principal any unsold shares at the price required to fulfill the broker-dealer commitment to the selling stockholders. Broker-dealers who acquire shares as principal may resell the shares from time to time in transactions that may involve block transactions of the nature described above, in the over-the-counter market, at prices and on terms then prevailing at the time of sale, at prices related to the then-current market price or in negotiated transactions. In connection with resales, broker-dealers may pay to or receive from the purchasers of the shares commissions as described above. The selling stockholders may be deemed "underwriters" as defined in the Securities Act of 1933 (the "Securities Act") in connection with the sale of the shares offered by this reoffer prospectus. Any broker-dealers or agents that participate with the selling stockholders in sales of the shares may be considered to be "underwriters" within the meaning of the Securities Act in connection with sales in which they participate. If any broker-dealers or agents are considered to be "underwriters," then any 10 commissions they receive and any profit on the resale of the shares purchased by them may be considered to be underwriting commissions or discounts under the Securities Act. The selling stockholders and any other persons participating in the sale or distribution of the shares will be subject to the Securities Exchange Act of 1934 (the "Exchange Act") and related rules and regulations, including Regulation M, to the extent it applies. The Exchange Act and related rules may limit the timing of purchases and sales of any of the shares by the selling stockholders, or any other person, that may affect the marketability of the shares. The selling stockholders also must comply with the applicable prospectus delivery requirements under the Securities Act in connection with the sale or distribution of the shares. We are required to pay certain fees and expenses incident to the registration of the shares for resale by the selling stockholders. We have agreed to indemnify the selling stockholders in certain circumstances against certain liabilities, including liabilities under the Securities Act. The selling stockholders have agreed to indemnify us in certain circumstances against certain liabilities, including liabilities under the Securities Act. This offering will terminate on the date on which the selling stockholders have sold all shares offered by means of this reoffer prospectus. LEGAL MATTERS The legality of the shares of our common stock being offered by means of this reoffer prospectus has been passed on for SPSS by McGuireWoods LLP, Chicago, Illinois. EXPERTS The consolidated financial statements and schedule of SPSS as of December 31, 2002 and 2003 and for each of the years in the three-year period ended December 31, 2003, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. 11 WHERE YOU CAN FIND MORE INFORMATION We have filed a registration statement on Form S-8 with the SEC under the Securities Act of 1933 to allow the selling stockholders to resell the common stock offered by means of this reoffer prospectus. This reoffer prospectus, which is a part of the registration statement, does not contain all of the information identified in the registration statement. For further information about us and the common stock offered by means of this reoffer prospectus, we refer you to the registration statement and the exhibits filed as a part of the registration statement. Statements contained in this reoffer prospectus as to the contents of any contract or other document filed as an exhibit to the registration statement are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, we refer you to the copy of the contract or document that has been filed. SPSS is subject to the information and periodic reporting requirements of the Exchange Act. In accordance with those requirements, we file annual, quarterly and special reports, proxy statements and other information with the SEC. You can read and copy any document we file at the SEC's public reference rooms at the following location: Judiciary Plaza 450 Fifth Street, N.W. Room 1024 Washington, D.C., 20549 You can request copies of these documents upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms and the procedure for obtaining copies. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The documents that SPSS files with the SEC, including the registration statement, are available to you on this web site. You can log onto the SEC's web site at http://www.sec.gov. Certain information may be available at the SPSS website at http://www.spss.com. INFORMATION INCORPORATED BY REFERENCE The SEC allows us to "incorporate by reference" the information that we file with it, which means that we can disclose important information to you by referring to those documents. As a result, you may need to review other documents filed by SPSS with the SEC to obtain more information. Information is incorporated into this reoffer prospectus in two ways. First, if information is contained in a document that SPSS filed with the SEC before the date of this reoffer prospectus, the document is specifically identified below. Second, all of the information provided in a periodic or other report or proxy statement filed by SPSS with the SEC after the date of this reoffer prospectus is incorporated by reference. The information contained in the documents we incorporate by reference is considered a part of this reoffer prospectus. Additionally, because information concerning SPSS, whether contained in this reoffer prospectus or in a document incorporated by reference, will be amended or superseded by more current information contained in later filed documents, the information that we file with the SEC after 12 the date of this reoffer prospectus will update and supersede older information contained in, or incorporated by reference into, this reoffer prospectus. We incorporate by reference into this reoffer prospectus all the documents listed below: - The annual report of SPSS Inc. on Form 10-K filed with the SEC on July 29, 2004 for the fiscal year ended December 31, 2003, as amended by that certain Amendment No. 1 to Annual Report on Form 10-K/A filed with the SEC on August 6, 2004; - The quarterly report of SPSS Inc. on Form 10-Q filed with the SEC on August 9, 2004 for the fiscal quarter ended June 30, 2004; - The quarterly report of SPSS Inc. on Form 10-Q filed with the SEC on July 29, 2004 for the fiscal quarter ended March 31, 2004; - The current report of SPSS Inc. on Form 8-K, dated October 21, 2004, filed with the SEC on October 22, 2004. The Form 8-K reported that SPSS had issued a press release announcing its preliminary results for the fiscal quarter ended September 30, 2004, and attached a copy of the press release as an exhibit. - The current report of SPSS Inc. on Form 8-K, dated August 11, 2004, filed with the SEC on August 12, 2004. The Form 8-K reported the resignation of Dr. Edward Hamburg as Chief Financial Officer of SPSS and hiring of Raymond H. Panza to replace Dr. Hamburg. - The current report of SPSS Inc. on Form 8-K, dated August 6, 2004, filed with the SEC on August 10, 2004. The Form 8-K reported that SPSS had held its Second Quarter 2004 Earnings Release Conference Call on August 6, 2004. The Form 8-K attached a transcript of the conference call as an exhibit. - The current report of SPSS Inc. on Form 8-K, dated August 5, 2004, filed with the SEC on August 6, 2004. The Form 8-K reported that SPSS had issued a press release announcing its preliminary results for the fiscal quarter ended June 30, 2004 and attached a copy of the press release as an exhibit. The report also described certain non-GAAP financial measures included in the release. - The current report of SPSS Inc. on Form 8-K, dated August 4, 2004, filed with the SEC on August 4, 2004. The Form 8-K reported that the NASDAQ will continue the listing of the SPSS common stock and will remove the fifth character "E" from the SPSS ticker symbol. - The current report of SPSS Inc. on Form 8-K, dated July 30, 2004, filed with the SEC on July 30, 2004. The Form 8-K reported that SPSS received a letter from the NASDAQ National Market stating that the NASDAQ Listing Qualifications Panel has determined to stay the delisting of the SPSS common stock that was to have been effective with the open of business on August 2, 2004. - The current report of SPSS Inc. on Form 8-K, dated July 22, 2004, filed with the SEC on July 23, 2004. The Form 8-K reported that SPSS had received a NASDAQ staff determination and the impact of this determination. 13 - The current report of SPSS Inc. on Form 8-K, dated July 1, 2004, filed with the SEC on July 2, 2004. The Form 8-K reported the resignation of Brian Zanghi as Executive Vice President and Chief Operating Officer of SPSS. - The current report of SPSS Inc. on Form 8-K, dated June 16, 2004, filed with the SEC on June 18, 2004. The Form 8-K reported the approval by the Board of Directors of amendments to the Company's Rights Agreement. - The current report of SPSS Inc. on Form 8-K, dated June 10, 2004, filed with the SEC on June 14, 2004. The Form 8-K reported that SPSS had received a NASDAQ staff determination and the impact of this determination. - The current report of SPSS Inc. on Form 8-K, dated May 14, 2004, filed with the SEC on May 20, 2004. The Form 8-K reported that a class action lawsuit has been filed against SPSS, Jack Noonan and Edward Hamburg alleging certain violations of the federal securities laws. The Form 8-K also reports that the Company and the other defendants believe that the suit is without merit and intend to defend vigorously against the allegations contained in the complaint. - The current report of SPSS Inc. on Form 8-K, dated May 5, 2004, filed with the SEC on May 6, 2004. The Form 8-K reported that SPSS had held its First Quarter 2004 Earnings Release Conference Call on May 5, 2004. The Form 8-K attached a transcript of the conference call as an exhibit. - The current report of SPSS Inc. on Form 8-K, dated May 4, 2004, filed with the SEC on May 6, 2004. The Form 8-K reported that SPSS had issued a press release announcing its preliminary results for its fiscal quarter ended March 31, 2004 and attached a copy of the press release as an exhibit. The report also described certain non-GAAP financial measures included in the release. - The current report of SPSS Inc. on Form 8-K, dated April 7, 2004, filed with the SEC on April 8, 2004. The Form 8-K reported that SPSS had received a NASDAQ Staff Determination, the impact of this determination and certain information regarding the review being conducted by the Audit Committee. - The current report of SPSS Inc. on Form 8-K, dated March 30, 2004, filed with the SEC on March 30, 2004. The Form 8-K reported the facts that have caused SPSS to further delay the filing of its Annual Report on Form 10-K for fiscal year 2003 with the SEC. - The current report of SPSS Inc. on Form 8-K, dated February 18, 2004, filed with the SEC on February 20, 2004. The Form 8-K reported that SPSS had held its Fourth Quarter 2003 Earnings Release Conference Call on February 18, 2004. The Form 8-K report attached a transcript of the conference call as an exhibit. - The current report of SPSS Inc. on Form 8-K, dated February 17, 2004, filed with the SEC on February 18, 2004. The Form 8-K reported that SPSS had issued a press release announcing its results for its fourth quarter and fiscal year ended December 31, 2003 and 14 attached a copy of the press release as an exhibit. The report also described certain non-GAAP financial measures included in the press release. - The current report of SPSS Inc. on Form 8-K, dated December 31, 2003, filed with the SEC on January 20, 2004. The Form 8-K reported that Mr. Patrick Dauga no longer serves as the Executive Vice President, Worldwide Sales of SPSS and that SPSS has hired Mr. John Shap as its new Senior Vice President, Worldwide Sales. - The current report of SPSS Inc. on Form 8-K/A (Amendment No. 1), dated November 5, 2003, filed with the SEC on January 20, 2004. The Report on Form 8-K/A (Amendment No. 1) amended the Report on Form 8-K filed with the SEC on November 18, 2003 announcing the acquisition of Data Distilleries B.V. The Report on Form 8-K contained the following financial information: (a) Financial Statements of Business Acquired including (i) Data Distilleries B.V. Audited Consolidated Financial Statements for the years ended December 31, 2002 and 2001 and (ii) Data Distilleries B.V. Unaudited Consolidated Financial Statements for the Nine Months Ended September 30, 2003 and 2002, and (b) Pro Forma Financial Information for the combined businesses. - The current report of SPSS Inc. on Form 8-K, dated December 29, 2003, filed with the SEC on January 6, 2004. The Form 8-K announced the consummation of an agreement by SPSS to grant to Systat Software, Inc., a subsidiary of Cranes Software International Ltd., an exclusive worldwide license to distribute the Sigma-series line of products for a three-year period, to sell to Systat certain related assets and to grant to Systat an option to purchase the licensed property. - The proxy statement, filed with the SEC on September 28, 2004, for the SPSS annual meeting of stockholders held on October 28, 2004, except for the compensation committee report contained therein; - The description of the common stock of SPSS Inc. contained in its registration statement filed with the SEC on a Form 8-A dated August 4, 1993, as amended by the Form 8-A12G/A dated August 31, 2004, pursuant to Section 12 of the Securities Exchange Act of 1934. In addition to the documents listed above, SPSS incorporates by reference into this reoffer prospectus all documents filed by SPSS with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this reoffer prospectus and until all of the common stock being offered by means of this reoffer prospectus have been sold by the selling stockholders or the registration statement which SPSS has filed with the SEC relating to the common stock ceases to be effective. We will deliver a free copy of any document incorporated by reference into this reoffer prospectus but not delivered with this reoffer prospectus to anyone who receives this reoffer prospectus. Exhibits filed with the documents that are incorporated by reference into this reoffer prospectus will be delivered only if the exhibits have been specifically incorporated by reference. Requests for any of these documents may be made in writing or orally and should be directed to: Chief Financial Officer, SPSS Inc., 233 South Wacker Drive, Chicago, Illinois 60606, (312) 651-3000. 15 No dealer, salesperson, or any other person has been authorized to give any information or to make any representation not contained in this reoffer prospectus. Any information or representation not contained herein must not be relied upon as having been authorized by SPSS or any selling stockholder. This reoffer prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities other than the securities covered by this reoffer prospectus; nor does it constitute an offer to sell, or a solicitation of an offer to buy, any of the securities covered by this reoffer prospectus by SPSS or any selling stockholder in any state where such offer or solicitation is not permitted. Neither the delivery of this reoffer prospectus nor any sale made hereunder shall, under any circumstances, create an implication that there has been no change in the affairs of SPSS since the date on the front of this document. All selling stockholders that effect transactions in the shares of common stock offered by means of this prospectus are required to deliver a copy of their prospectus to any purchaser of the shares of common stock at or before the time a certificate representing the shares of common stock is delivered to the purchaser. 16 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference The SEC allows us to "incorporate by reference" the information that we file with it, which means that we can disclose important information to you by referring to those documents. As a result, you may need to review other documents filed by SPSS with the SEC to obtain more information. The information contained in the documents we incorporate by reference is considered a part of this registration statement. Additionally, because information concerning SPSS, whether contained in this registration statement or in a document incorporated by reference, will be amended or superseded by more current information contained in later filed documents, the information that we file with the SEC after the date of this registration statement will update and supersede older information contained in, or incorporated by reference into, this registration statement. SPSS hereby incorporates by reference the following documents previously filed with the SEC: (a) The annual report of SPSS Inc. on Form 10-K filed with the SEC on July 29, 2004 for the fiscal year ended December 31, 2003, as amended by that certain Amendment No. 1 to Annual Report on Form 10-K/A filed with the SEC on August 6, 2004; (b) The quarterly report of SPSS Inc. on Form 10-Q filed with the SEC on August 9, 2004 for the fiscal quarter ended June 30, 2004; (c) The quarterly report of SPSS Inc. on Form 10-Q filed with the SEC on July 29, 2004 for the fiscal quarter ended March 31, 2004; (d) The current report of SPSS Inc. on Form 8-K, dated October 21, 2004, filed with the SEC on October 22, 2004. The Form 8-K reported that SPSS had issued a press release announcing its preliminary results for the fiscal quarter ended September 30, 2004, and attached a copy of the press release as an exhibit. (e) The current report of SPSS Inc. on Form 8-K, dated August 11, 2004, filed with the SEC on August 12, 2004. The Form 8-K reported the resignation of Dr. Edward Hamburg as Chief Financial Officer of SPSS and hiring of Raymond H. Panza to replace Dr. Hamburg. (f) The current report of SPSS Inc. on Form 8-K, dated August 6, 2004, filed with the SEC on August 10, 2004. The Form 8-K reported that SPSS had held its Second Quarter 2004 Earnings Release Conference Call on August 6, 2004. The Form 8-K attached a transcript of the conference call as an exhibit. (g) The current report of SPSS Inc. on Form 8-K, dated August 5, 2004, filed with the SEC on August 6, 2004. The Form 8-K reported that SPSS had issued a press release announcing its preliminary results for the fiscal II-1 quarter ended June 30, 2004 and attached a copy of the press release as an exhibit. The report also described certain non-GAAP financial measures included in the release. (h) The current report of SPSS Inc. on Form 8-K, dated August 4, 2004, filed with the SEC on August 4, 2004. The Form 8-K reported that the NASDAQ will continue the listing of the SPSS common stock and will remove the fifth character "E" from the SPSS ticker symbol. (i) The current report of SPSS Inc. on Form 8-K, dated July 30, 2004, filed with the SEC on July 30, 2004. The Form 8-K reported that SPSS received a letter from the NASDAQ National Market stating that the NASDAQ Listing Qualifications Panel has determined to stay the delisting of the SPSS common stock that was to have been effective with the open of business on August 2, 2004. (j) The current report of SPSS Inc. on Form 8-K, dated July 22, 2004, filed with the SEC on July 23, 2004. The Form 8-K reported that SPSS had received a NASDAQ staff determination and the impact of this determination. (k) The current report of SPSS Inc. on Form 8-K, dated July 1, 2004, filed with the SEC on July 2, 2004. The Form 8-K reported the resignation of Brian Zanghi as Executive Vice President and Chief Operating Officer of SPSS. (l) The current report of SPSS Inc. on Form 8-K, dated June 16, 2004, filed with the SEC on June 18, 2004. The Form 8-K reported the approval by the Board of Directors of amendments to the Company's Rights Agreement. (m) The current report of SPSS Inc. on Form 8-K, dated June 10, 2004, filed with the SEC on June 14, 2004. The Form 8-K reported that SPSS had received a NASDAQ staff determination and the impact of this determination. (n) The current report of SPSS Inc. on Form 8-K, dated May 14, 2004, filed with the SEC on May 20, 2004. The Form 8-K reported that a class action lawsuit has been filed against SPSS, Jack Noonan and Edward Hamburg alleging certain violations of the federal securities laws. The Form 8-K also reports that the Company and the other defendants believe that the suit is without merit and intend to defend vigorously against the allegations contained in the complaint. (o) The current report of SPSS Inc. on Form 8-K, dated May 5, 2004, filed with the SEC on May 6, 2004. The Form 8-K reported that SPSS had held II-2 its First Quarter 2004 Earnings Release Conference Call on May 5, 2004. The Form 8-K attached a transcript of the conference call as an exhibit. (p) The current report of SPSS Inc. on Form 8-K, dated May 4, 2004, filed with the SEC on May 6, 2004. The Form 8-K reported that SPSS had issued a press release announcing its preliminary results for its fiscal quarter ended March 31, 2004 and attached a copy of the press release as an exhibit. The report also described certain non-GAAP financial measures included in the release. (q) The current report of SPSS Inc. on Form 8-K, dated April 7, 2004, filed with the SEC on April 8, 2004. The Form 8-K reported that SPSS had received a NASDAQ Staff Determination, the impact of this determination and certain information regarding the review being conducted by the Audit Committee. (r) The current report of SPSS Inc. on Form 8-K, dated March 30, 2004, filed with the SEC on March 30, 2004. The Form 8-K reported the facts that have caused SPSS to further delay the filing of its Annual Report on Form 10-K for fiscal year 2003 with the SEC. (s) The current report of SPSS Inc. on Form 8-K, dated February 18, 2004, filed with the SEC on February 20, 2004. The Form 8-K reported that SPSS had held its Fourth Quarter 2003 Earnings Release Conference Call on February 18, 2004. The Form 8-K report attached a transcript of the conference call as an exhibit. (t) The current report of SPSS Inc. on Form 8-K, dated February 17, 2004, filed with the SEC on February 18, 2004. The Form 8-K reported that SPSS had issued a press release announcing its results for its fourth quarter and fiscal year ended December 31, 2003 and attached a copy of the press release as an exhibit. The report also described certain non-GAAP financial measures included in the press release. (u) The current report of SPSS Inc. on Form 8-K, dated December 31, 2003, filed with the SEC on January 20, 2004. The Form 8-K reported that Mr. Patrick Dauga no longer serves as the Executive Vice President, Worldwide Sales of SPSS and that SPSS has hired Mr. John Shap as its new Senior Vice President, Worldwide Sales. (v) The current report of SPSS Inc. on Form 8-K/A (Amendment No. 1), dated November 5, 2003, filed with the SEC on January 20, 2004. The Report on Form 8-K/A (Amendment No. 1) amended the Report on Form 8-K filed with the SEC on November 18, 2003 announcing the acquisition of Data Distilleries B.V. The Report on Form 8-K contained the following financial information: (a) Financial Statements of Business Acquired II-3 including (i) Data Distilleries B.V. Audited Consolidated Financial Statements for the years ended December 31, 2002 and 2001 and (ii) Data Distilleries B.V. Unaudited Consolidated Financial Statements for the Nine Months Ended September 30, 2003 and 2002, and (b) Pro Forma Financial Information for the combined businesses. (w) The current report of SPSS Inc. on Form 8-K, dated December 29, 2003, filed with the SEC on January 6, 2004. The Form 8-K announced the consummation of an agreement by SPSS to grant to Systat Software, Inc., a subsidiary of Cranes Software International Ltd., an exclusive worldwide license to distribute the Sigma-series line of products for a three-year period, to sell to Systat certain related assets and to grant to Systat an option to purchase the licensed property. (x) The proxy statement, filed with the SEC on September 28, 2004, for the SPSS annual meeting of stockholders held on October 28, 2004, except for the compensation committee report contained therein; (y) The description of the common stock of SPSS Inc. contained in its registration statement filed with the SEC on a Form 8-A dated August 4, 1993, as amended by the Form 8-A12G/A dated August 31, 2004, pursuant to Section 12 of the Securities Exchange Act of 1934. In addition to the documents listed above, SPSS incorporates by reference into this registration statement all documents filed by SPSS with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this registration statement and 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. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Officers and Directors The SPSS Certificate of Incorporation provides for indemnification to the full extent permitted by the laws of the State of Delaware against, and with respect to, threatened, pending or completed actions, suits or proceedings arising from, or alleged to arise from, a party's actions or omissions as a director, officer, employee or agent of SPSS or of any other corporation, partnership, joint venture, trust or other enterprise which has served in such capacity at the request of SPSS if the acts or omissions occurred, or were or alleged to have occurred, while such party was a director or officer of SPSS; provided, however, that SPSS shall not indemnify II-4 any director or officer in an action against SPSS unless SPSS shall have consented to the action. Generally, under Delaware law, indemnification will only be available where an officer or director can establish that he or she acted in good faith and in a manner which was reasonably believed to be in, or not opposed to, the best interests of SPSS. Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any person made a party to an action, suit or proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. In addition, Section 145 provides that a corporation may indemnify any person made a party to an action, suit or proceeding by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation, against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 also provides that to the extent a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above, or defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonable incurred in connection therewith. Under the applicable provisions of the Delaware General Corporation Law, any indemnification described above shall be made by the corporation only as authorized in the specific case upon a determination that the indemnification of the director, officer, employee or agent is proper under the circumstances because he or she has met the applicable standard of conduct. Such determination shall be made: (1) by the Board of Directors by a majority vote of directors who are not parties to such action, suit or proceeding, even though less than a quorum; or II-5 (2) by a committee of directors who are not parties to the action, suit or proceeding, as designated by a majority vote of such directors, even though less than a quorum; or (3) if no directors who are not parties to the action, suit, or proceeding exist, or if such directors so direct, by independent legal counsel in a written opinion; or (4) by the affirmative vote of a majority of the shares entitled to vote thereon. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits.
Exhibit Incorporation Number Description by Reference ------ ----------- ------------ 5.1 Opinion of McGuireWoods LLP regarding legality of shares of Common Stock. 10.47 SPSS Inc. Amended and Restated 2002 Equity Incentive Plan. 23.1 Consent of KPMG LLP. 23.2 Consent of PricewaterhouseCoopers Accountants N.V. 23.3 Consent of McGuireWoods LLP (contained in opinion filed as Exhibit 5.1). 24.1 Power of Attorney. (1)
(1) Power of attorney is contained within the signature page. Item 9. Undertakings. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: 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 the registration statement. (2) 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. (3) 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. II-6 (4) 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 Securities 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) 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 Act and will be governed by the final adjudication of such issue. II-7 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 Chicago, State of Illinois, on OCTOBER 29, 2004. SPSS Inc. By: /s/ JACK NOONAN -------------------------------------- Jack Noonan President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Jack Noonan and Raymond H. Panza, and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, 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 other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in furtherance of the foregoing, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, 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 indicated on OCTOBER 29, 2004.
Signature Title(s) --------- -------- /s/ NORMAN H. NIE Chairman of the Board of Directors - --------------------------- Norman H. Nie /s/ JACK NOONAN President, Chief Executive Officer and Director - --------------------------- Jack Noonan /s/ RAYMOND H. PANZA Executive Vice President, Corporate Operations, - --------------------------- Chief Financial Officer and Secretary Raymond H. Panza
II-8 /s/ ROBERT BRINKMANN Corporate Controller - --------------------------- Robert Brinkmann /s/ MICHAEL BLAIR Director - --------------------------- Michael Blair /s/ CHARLES R. WHITCHURCH Director - --------------------------- Charles R. Whitchurch /s/ MERRITT LUTZ Director - --------------------------- Merritt Lutz /s/ PROMOD HAQUE Director - --------------------------- Promod Haque /s/ WILLIAM BINCH Director - --------------------------- William Binch /s/ KENNETH HOLEC Director - --------------------------- Kenneth Holec II-9 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 EXHIBITS FILED WITH FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SPSS INC. SPSS INC. EXHIBIT INDEX
Exhibit No. Description - ------- ----------- 5.1 Opinion of McGuireWoods LLP regarding legality of shares of Common Stock. 10.47 SPSS Inc. Amended and Restated 2002 Equity Incentive Plan 23.1 Consent of KPMG LLP. 23.2 Consent of PricewaterhouseCoopers Accountants N.V. 23.3 Consent of McGuireWoods LLP (contained in opinion filed as Exhibit 5.1). 24.1 Power of Attorney (contained within the signature page to the Registration Statement on Form S-8).
2 EX-5.1 2 c88987exv5w1.txt OPINION Exhibit 5.1 [Letterhead of McGuireWoods LLP] October 29, 2004 SPSS Inc. 233 South Wacker Drive Chicago, Illinois 60601 Re: Registration Statement on Form S-8 Ladies and Gentlemen: You have requested our opinion with respect to the registration by SPSS Inc. ("SPSS" or the "Company") pursuant to a registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"), of an aggregate of 500,000 shares of the Company's Common Stock, $0.01 par value per share (the "Common Stock") issuable upon the exercise of options (the "Options") to purchase Common Stock as issued pursuant to the SPSS Inc. Amended and Restated 2002 Equity Incentive Plan (the "2002 Plan"). In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments and have conducted such other investigations of fact and law as we have deemed relevant and necessary to form a basis for the opinions hereinafter expressed. In conducting such examination, we have assumed (i) that all signatures are genuine, (ii) that all documents and instruments submitted to us as copies conform with the originals, and (iii) the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to any facts material to this opinion, we have relied upon statements and representations of officers and other representatives of the Company and certificates of public officials and have not independently verified such facts, but have no actual knowledge of the inaccuracy or incompleteness of the same. Based upon the foregoing, it is our opinion that the Common Stock issuable upon the proper exercise of Options granted pursuant to the 2002 Plan will be validly issued, fully paid and non-assessable when issued in accordance with the 2002 Plan. We express no opinion as to the laws of any jurisdiction other than the State of Illinois, the United States of America, and, solely with respect to matters of corporate organization and authority, the General Corporation Law of the State of Delaware. We are not admitted to the practice of law in the State of Delaware. Accordingly, any opinion herein as to the corporation laws of the State of Delaware is based solely upon the last general available compilation of the statutes of State Law of Delaware published by Prentice Hall Law & Business. Insofar as the foregoing opinion relates to matters that would be controlled by the substantive laws of any jurisdiction other than the United States of America, the General Corporation Law of the State of Delaware, with respect to matters of corporate organization and authority, or the State of Illinois, we have assumed that the substantive laws of such jurisdiction conform in all respects to the internal laws of the State of Illinois. We hereby consent to the reference to our firm in the Registration Statement relating to the registration of the 500,000 shares of Common Stock issuable upon exercise of the Options described above. Very truly yours, /s/ McGuireWoods LLP EX-10.47 3 c88987exv10w47.txt AMENDED AND RESTATED EQUITY INCENTIVE PLAN Exhibit 10.47 AMENDED AND RESTATED 2002 EQUITY INCENTIVE PLAN 1. PURPOSE. The purpose of this Amended and Restated 2002 Equity Incentive Plan (the "Plan") is to promote the interests of the stockholders of SPSS Inc., a Delaware corporation (the "Company") by providing the Company's directors, officers, employees and independent contractors with an incentive to achieve, and a reward for achieving, increases in stockholder value. 2. DEFINITIONS. For purposes of this Plan, the following words and phrases will have the meanings ascribed to them below: (a) "Appreciation Right" means a right granted pursuant to Section 8 hereof. (b) "Appreciation Right Agreement" means an agreement executed pursuant to Section 8(a) hereof. (c) "Board" means the Company's Board of Directors. (d) "Change in Control" shall be defined, with respect to each Participant; as such term is defined in the Participant's employment agreement with the Company, if any. With respect to any Participant who has no employment agreement with the Company, or whose employment agreement does not contain a definition of "Change in Control," such phrase shall mean the occurrence of any one of the following: (i) Consummation of the acquisition by any person (as such term is defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act")) of beneficial ownership (within the meaning of Rule l3d-3 promulgated under the 1934 Act) of 40 percent (40%) or more of the combined voting power of the then outstanding voting securities of the Company; or (ii) The individuals who, as of the date hereof, are members of the Board cease for any reason to constitute a majority of the Board, unless the election, or nomination for election by the Stockholders of the Company, of any new director or directors was approved by a vote of a majority of the Board, in which case such new director or directors shall, for purposes of this Agreement, be considered as a member or members of the Board; or (iii) Approval by Stockholders of the Company of (A) a merger or consolidation of the Company if the Stockholders immediately before such merger or consolidation do not, as a result of such merger or consolidation, own, directly or indirectly, more than 60 percent (60%) of the combined voting power of the then outstanding voting securities of the entity resulting from such merger or consolidation in substantially the same proportion as their ownership of the combined voting power of the voting securities of the Company outstanding immediately before such merger or consolidation; or (B) a complete liquidation or dissolution, or an agreement for the sale or other disposition, of all or substantially all of the assets of the Company. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because 40 percent (40%) or more of the combined voting power of the then outstanding securities is acquired by (i) a trustee or other fiduciary holding securities under one or more employee benefit plans maintained for employees of the Company, or (ii) any corporation that, immediately prior to such acquisition, is owned directly or indirectly by the Stockholders of the Company in the same proportion as their ownership of stock of the Company immediately prior to such acquisition. (e) "Code" means the Internal Revenue Code of 1986, as amended from time to time. (f) "Common Shares" means shares of common stock of the Company, $0.01 par value per share, or any security into which such Common Shares may be changed by reason of any transaction or event of the type referred to in Section 4(c). (g) "Compensation Committee" means a committee appointed by the Board comprised solely of three or more members of the Board who qualify as "independent" under the NASDAQ National Market listing standards. (h) "Date of Grant" means the date determined in accordance with the Board's authorization on which a grant of Option Rights, Appreciation Rights, or Restricted Shares, becomes effective. (i) "Director" means a member of the Board. (j) "Exchange Act" means the Securities Exchange Act of 1934. (k) "Incentive Stock Option" means an Option Right granted pursuant to Section 6 hereof that is intended to qualify as an "incentive stock option" as that term is defined in Section 422 of the Code or any successor provision and which conforms to the applicable provisions of Section 422 of the Code or any successor provision. (l) "Market Value", as applied to any date, means the price per share of the Common Shares in an amount equal to the closing price of the last sale of the Common Shares as reported by the NASDAQ National Market or the principal securities exchange or automated quotation system on which Common Shares were sold on the date when the Market Value per Common Share is to be determined or, if the date is a date on which the Common Shares did not trade, the closing price on the immediately preceding day on which the stock traded. (m) "Non-Employee Director" shall have the meaning ascribed to such term in Rule 16b-3. (n) "Nonqualified Stock Option" means an Option Right other than an Incentive Stock Option. 2 (o) "Optionee" means the optionee named in an Option Agreement with the Company. (p) "Option Agreement" means an agreement executed pursuant to Section 6 hereof. (q) "Option Price" means the purchase price payable on exercise of an Option Right. (r) "Option Right" means the right to purchase Common Shares granted pursuant to Section 6. (s) "Participant" means a person who is approved by the Board to receive benefits under this Plan and who is at the time an officer, executive, Director or other employee (including, without limitation, officers and directors who are employees) or independent contractor of the Company or any one or more of its Subsidiaries, or who has agreed to commence serving in any of such capacities. (t) "Restricted Shares" means Common Shares issued pursuant to Section 9 as to which neither the substantial risk of forfeiture nor the prohibition on transfers referred to in Section 9 has expired. (u) "Restricted Share Agreement" means an agreement executed pursuant to Section 9(a) hereof. (v) "Restricted Share Right" means the right to obtain ownership of Common Shares granted pursuant to Section 9. (w) "Right" or "Rights" means one or more Appreciation Right, Option Right and Restricted Share Right, either individually or collectively, as the case may be. (x) "Rule 16b-3" means rule 16b-3 promulgated under the Exchange Act (the "Exchange Act") (or any successor rule substantially to the same effect), as in effect from time to time. (y) "Spread" means (i) the excess of the Market Value of the Common Shares on the date when an Appreciation Right is exercised, over the price at which the Appreciation Right was granted, as set forth in the applicable Appreciation Right Agreement, or (ii) the excess of the Market Value of the Common shares on the date when an Option Right is exercised over the Option Price, as set forth in the applicable Option Agreement. (z) "Stockholders" shall mean the owners of the issued and outstanding Common Shares of SPSS. 3 (aa) "Subsidiary" means any corporation with respect to which the Company directly or indirectly owns stock possessing 50% or more of the voting power as described in Section 424(f) of the Code. 3. PLAN ADMINISTRATION. (a) Administration. This Plan will be administered by the Board or, if and to the extent that the Board has delegated this authority to the Compensation Committee, by the Compensation Committee. For avoidance of doubt, it is understood that by adopting this Plan, the Board has expressly delegated exclusive authority to administer this Plan to the Compensation Committee and such delegation shall be effective unless and until the Board shall by resolution approved after the adoption of this Plan specifically rescind such delegation of authority. When used in this Plan, the term "Board" shall mean the Board or the Compensation Committee, if the Board has delegated the applicable power to the Compensation Committee pursuant to this Section 3(a). (b) Authority of the Board. (i) The Board will take such actions as are required to be taken by it hereunder, may take the actions permitted to be taken by it hereunder, and will have the authority, subject to the provisions of the Plan, to establish, adopt and revise such rules and regulations relating to the Plan as it may deem necessary or advisable for the administration of the Plan. The Board's decisions and determinations under the Plan need not be uniform and may be made selectively among Participants, whether or not such Participants are similarly situated. Each determination, interpretation or other action made or taken by the Board pursuant to the provisions of the Plan or any agreement, notification, or document evidencing the grant of an Option Right, Appreciation Right or Restricted Share will be conclusive and binding for all purposes and on all persons, including, without limitation, the Company and its Subsidiaries, the Stockholders, the Compensation Committee, the Board and each of its respective members, the directors, officers and employees of the Company and its Subsidiaries, and the Participants and their respective successors in interest. Without limiting the generality or effect of any provision of the Certificate of Incorporation of the Company, no member of the Board will be liable for any action or determination made in good faith with respect to the Plan or any Option Right, Appreciation Right or Restricted Share granted under the Plan. (ii) The provisions of Sections 6, 8 and 9 will be interpreted as authorizing the Board, in taking any action under or pursuant to this Plan, to take any action it determines in its sole discretion to be appropriate subject only to the express limitations therein contained and no authorization in any such Section or other provision of this Plan is intended or may be deemed to constitute a limitation on the authority of the Board. (iii) The existence of this Plan or any right granted or other action taken pursuant hereto will not affect the authority of the Board or the Company to take any other action, including in respect of the grant or award of any option, security, or other right or benefit, whether or not authorized by this Plan, subject only to limitations imposed by applicable law as from time to time applicable thereto. 4 4. SHARES AVAILABLE UNDER THE PLAN. (a) Authorized Number of Common Shares. Subject to adjustment as provided in Section 4(c) hereof: (i) The number of Common Shares that may be issued or transferred under this Plan upon the exercise of Option Rights that qualify as Incentive Stock Options may not exceed a maximum of 79,646. (ii) The number of Common Shares that may be issued or transferred under this Plan upon the exercise of Option Rights that qualify as Nonqualified Stock Options, Appreciation Rights or as Restricted Shares and released from substantial risks of forfeiture thereof, may not exceed a maximum of 2,420,354. Common Shares issued under this Plan may be shares of original issuance or treasury shares or a combination of the foregoing. (b) Reservation and Reuse of Common Shares. Upon the grant of any Right pursuant to this Plan, there shall be reserved such number of Common Shares as would be necessary to fully satisfy such Right (assuming for this purpose that all Option Rights and Appreciation Rights become fully vested and exercisable, all forfeiture restrictions lapse with respect to Restricted Stock Rights and that all Appreciation Rights are satisfied by the issuance of Common Shares). If, following such reservation, any Right shall be exercised or shall terminate, be cancelled or otherwise expire without requiring the Company to use all of the Common Shares reserved with respect to such Right to satisfy its obligations there under, the Common Shares that were reserved, but were not used to satisfy the Company's obligation, with respect to the exercised, terminated, cancelled or otherwise expired Right shall again become available for reservation with respect to the grant of additional Rights pursuant to this Plan. (c) Adjustments. If the Board determines that (a) any stock dividend, stock split, combination of shares, recapitalization, or other change in the capital structure of the Company, (b) any merger, consolidation, spin-off, split-off, spin-out, split-up, reorganization, partial or complete liquidation, or other distribution of assets or issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing, would result in the dilution or enlargement of the rights of Participants, then the Board may make or provide for adjustments in (i) the number of shares specified in Section 4(a) as the Board may determine is appropriate to reflect any transaction or event described in this Section 4(c), or (ii) the number of Common Shares covered by outstanding Option Rights or Appreciation Rights granted hereunder, the prices per share applicable to such Option Rights and Appreciation Rights and the kind of shares covered thereby. Notwithstanding the foregoing, any adjustment which by reason of this Section 4(c) is not required to be made currently will be carried forward and taken into account in any subsequent adjustment. In the event of any such transaction or event, the Board may provide in substitution for any or all outstanding awards under this Plan such alternative consideration as it may determine to be equitable in the circumstances and may require in connection therewith the surrender of all awards so replaced. 5 5. ELIGIBILITY. Option Rights, Appreciation Rights and Restricted Shares may be granted under the Plan to those Participants as the Board from time to time selects. 6. OPTION RIGHTS. The Board may from time to time authorize the grant to Participants of Option Rights upon such terms and conditions as it may determine in accordance with the following provisions set forth below. Option Rights may be granted either in connection with, or independently of, the grant of any Appreciation Rights or Restricted Share Rights. (a) Form of Option Rights. Option Rights granted under this Plan may be (i) Incentive Stock Options, (ii) Nonqualified Stock Options, or (iii) a combination of the foregoing. An Incentive Stock Option may be granted only to a Participant who, at the time the Incentive Stock Option is granted, is approved by the Board to receive an Incentive Stock Option and, at the time, is an employee of the Company or of one or more of its Subsidiaries. An Incentive Stock Option may be granted only as permitted by the Code and pursuant to the conditions set forth in this Section 6 and Section 7 hereto. (b) Option Agreements. Each grant of Option Rights will be evidenced by an Option Agreement executed on behalf of the Company by any officer, director, or, if authorized by the Board, employee of the Company and delivered to the Optionee, containing such terms and provisions as the Board may approve, except that in no event will any such Option Agreement include any provision prohibited by the express terms of this Plan. The Option Agreement shall be consistent with the form of Option Agreement adopted by the Board and amended from time to time, for the purpose of granting Option Rights. Option Agreements evidencing Incentive Stock Options shall contain such terms and conditions as may be necessary to meet the applicable provisions of Section 422 of the Code. (c) Option Grants. (i) Discretionary Grants. A Participant, other than a Non-Employee Director who shall receive grants exclusively pursuant to Section 6(c)(ii) hereof, may be granted one or more Option Rights under the Plan, and such Option Rights will be subject to such terms and conditions, consistent with the other provisions of the Plan, as are determined by the Board in its sole discretion. For each grant of an Option Right, the Board will specify (A) the number of Common Shares to which the grant pertains and (B) whether the grant consists of Incentive Stock Options, Nonqualified Stock Options or both Incentive Stock Options and Nonqualified Stock Options. Notwithstanding the foregoing, no Participant may receive, in any single calendar year, a grant of an Option Right to purchase more than 150,000 Common Shares. (ii) Formula Grants. Effective upon stockholder approval, an Option Right to purchase 10,000 Common Shares shall be automatically granted to each Non-Employee Director on the initial date that each such Non-Employee Director is first elected as a new director of the Company at an annual meeting of the Company's stockholders held for the purpose of electing directors or appointed to the Company's Board. In addition, for each year that a Non-Employee Director serves following the initial one-year term of such Non-Employee 6 Director, an Option Right to purchase 5,000 Common Shares shall be automatically granted to each Non-Employee Director on an annual basis with each such grant being effective as of the 1st day of July of such calendar year. Notwithstanding any other provision of this Plan relating to the discretion of the Board to determine the terms of the Option Rights granted pursuant hereto, each Option Right granted pursuant to this Section 6(c)(ii) shall (A) be granted with an exercise price equal to the Market Value on the date of grant, (B) be a Nonqualified Stock Option and (C) (i) with respect to the option granted to purchase 10,000 Common Shares, shall vest ratably over a three year period and (ii) with respect to the option granted to purchase 5,000 Common Shares vest in full immediately upon the date of grant. (d) Option Exercise Price. (i) Incentive Stock Options. The per share price to be paid by the Participant at the time an Incentive Stock Option is exercised will be determined by the Board in its sole discretion at the Date of Grant; provided, however, that such price will not be less than (i) 100% of the Market Value of one Common Share on the Date of Grant, or (ii) 110% of the Market Value of one Common Share on the Date of Grant if, at that time the Option Right is granted, the Participant owns, directly or indirectly (as determined pursuant to Section 424(d) of the Code), more than 10% of the total combined voting power of all classes of stock of the Company or any subsidiary or parent corporation of the Company (within the meaning of Sections 424(f) and 424(e), respectively, of the Code). (ii) Nonqualified Stock Options. The per share price to be paid by the Participant at the time a Nonqualified Stock Option is exercised will be determined by the Board in its sole discretion at the Date of Grant; provided, however, that such price will not be less than 85% of the Market Value of one Common Share on the Date of Grant. (e) Term of Option Rights. (i) Incentive Stock Options. The period during which an Incentive Stock Option may be exercised will be fixed by the Board in its sole discretion at the time such Option Right is granted; provided, however, that in no event will such period exceed ten (10) years from its Date of Grant or, in the case of a Participant who owns, directly or indirectly (as determined pursuant to Section 424(d) of the Code), more than 10% of the total combined voting power of all classes of stock of the Company or any subsidiary or parent corporation of the Company (within the meaning of Sections 424(f) and 424(e), respectively, of the Code), five (5) years from its Date of Grant. (ii) Nonqualified Stock Options. The period during which a Nonqualified Stock Option may be exercised will be fixed by the Board in its sole discretion at the time such Option Right is granted; provided, however, that in no event will such period exceed ten (10) years from its Date of Grant. (f) Exercise of Options. Each grant of an Option Right will specify the period or periods of continuous service by the Participant with the Company or any Subsidiary which is necessary before the Option Right or installments thereof will vest and become exercisable and 7 may provide for the earlier exercise of such Option Right in the event of a Change in Control or other event. To the extent that the right to purchase Common Shares has accrued thereunder, an Option Right may be exercised, in whole or in part, from time to time by written notice to the Company, in accordance with the procedures set forth in the Option Agreement. (g) Payment of Exercise Price. (i) Each grant will specify whether the Option Price is payable (A) in cash, (B) by the actual or constructive transfer to the Company of nonforfeitable, unrestricted Common Shares already owned by the Optionee (or other consideration authorized pursuant to Section 6(g)(ii)) having an actual or constructive value as of the time of exercise as determined by the Board or in accordance with the applicable Option Agreement referred to in Section 6(b), equal to the total Option Price, (C) by having the Company reduce the number of Common Shares distributed to the Optionee by a number of Common Shares with a Market Value per Common Share, as of the date of exercise, equal to the Option Price of the Common Shares, (D) by deferred payment of the full purchase price of the Common Shares from the proceeds of a sale, through a bank or broker, on the exercise date of some or all of the Common Shares underlying the Option Right to which such exercise relates, or (E) by a combination of such methods of payment. In connection with a constructive transfer pursuant to Section 6(g)(i)(B) hereof, a Participant may provide an attestation letter in form acceptable to the Company requesting that the Company issue and transfer to the Participant, in full satisfaction of such exercise, Common Shares having a value net of the exercise price and any applicable withholding taxes. (ii) The Board may determine, at or after the Date of Grant, that payment of the Option Price of any option (other than an Incentive Stock Option) may also be made in whole or in part in the form of Restricted Shares or other Common Shares that are forfeitable or subject to restrictions on transfer, or other Option Rights (based on the Spread on the date of exercise). Unless otherwise determined by the Board at or after the Date of Grant, whenever any Option is exercised in whole or in part by means of any of the forms of consideration specified in this Section 6(g), the Common Shares received upon the exercise of the Option Rights will be subject to such risk of forfeiture or restrictions on transfer as may correspond to any that apply to the consideration surrendered, but only to the extent of (i) the number of shares surrendered in payment of the Option Price or (ii) the Spread of any unexercisable portion of Option Rights surrendered in payment of the Option Price. (iii) Any grant may provide for deferred payment of the Option Price from the proceeds of sale through a bank or broker on the exercise date of some or all of the shares to which such exercise relates. (h) Reload Policy. In the event that a Participant serving in a management position at the Company tenders by attestation Common Shares in payment or partial payment of either the Option Price or any withholding taxes, additional Option Rights may be granted to such Participant, subject to Board approval. The number of additional Option Rights shall equal the number of Common Shares constructively tendered in payment or partial payment of either the Option Price or any withholding taxes. 8 (i) Successive Grants. Successive grants of Option Rights may be made to the same Participant whether or not any Option Rights or other Rights previously granted to such Participant remain unexercised. (j) Post-Termination Exercises. The Board shall establish and set forth in each Option Agreement that evidences an Option Right whether the Option will continue to be exercisable, and the terms and conditions of such exercise, if a Participant ceases to be employed by, or to provide services to, the Company or its Subsidiaries, which provisions may be waived by the Board at any time. 7. ADDITIONAL INCENTIVE STOCK OPTION LIMITATIONS. (a) Dollar Limitation. To the extent the aggregate Market Value (determined as of the Date of Grant) of Common Shares with respect to which Incentive Stock Options are exercisable for the first time during any calendar year (under the Plan and all other stock option plans of the Company) exceeds $100,000, such portion in excess of $100,000 shall be treated as a Nonqualified Stock Option. In the event the Optionee holds two or more such Options that become exercisable for the first time in the same calendar year, such limitation shall be applied on the basis of the order in which such Options are granted. (b) Eligible Employees. Individuals who are not employees of the Company or one of its parent corporations or subsidiary corporations may not be granted Incentive Stock Options. For purposes of this Section 7(b), "parent corporation" and "subsidiary corporation" shall have the meanings attributed to those terms for purposes of Section 424(e) and 424(f) of the Code. (c) Exercisability. An Option designated as an Incentive Stock Option must be exercised within three months after termination of employment for reasons other than death, except that, in the case of termination of employment due to disability, as defined in Section 22(e)(3), such Option must be exercised within one year after such termination. In the case of termination of employment due to the death of the employee, such Option must be exercised within one year after such termination. Employment shall not be deemed to continue beyond the first 90 days of a leave of absence unless the Optionee's reemployment rights are guaranteed by statute or contract. (d) Taxation of Incentive Stock Options. In order to obtain certain tax benefits afforded to Incentive Stock Options under Section 422 of the Code, the Optionee must hold the shares issued upon the exercise of an Incentive Stock Option for two years after the Date of Grant of the Incentive Stock Option and one year from the date of exercise. An Optionee may be subject to the alternative minimum tax at the time of exercise of an Incentive Stock Option. The Board may require an Optionee to give the Company prompt notice of any disposition of shares acquired by the exercise of an Incentive Stock Option prior to the expiration of such holding periods. 9 8. APPRECIATION RIGHTS. The Board may from time to time authorize the grant to Participants of Appreciation Rights upon such terms and conditions as it may determine in accordance with the provisions set forth below. Appreciation Rights may be granted either in connection with, or independently of, the grant of any Option Rights or Restricted Share Rights. (a) Form of Appreciation Right. An Appreciation Right shall be expressed as the right to receive from the Company consideration with a value equal to the Spread for a specified number of Common Shares between the measurement or base price of a Common Share stated in the Appreciation Right Agreement and the Market Value of a Common Share on the date the Appreciation Right is exercised. (b) Appreciation Right Agreement. Each grant of Appreciation Rights will be evidenced by an Appreciation Right Agreement executed on behalf of the Company by an officer, director, or, if authorized by the Board, employee of the Company and delivered to and accepted by the Participant, which agreement will describe such Appreciation Rights, state that such Appreciation Rights are subject to all the terms and conditions of this Plan, and contain such other terms and provisions as the Board may approve, except that in no event will such Appreciation Right Agreement include any provision prohibited by the express terms of this Plan. The Appreciation Right Agreement shall be consistent with the form of Appreciation Right Agreement adopted by the Board and amended from time to time, for the purpose of granting Appreciation Rights. (c) Measurement or Base Price. The measurement or base price used to determine the value of an Appreciation Right at the time an Appreciation Right is exercised will be determined by the Board in its sole discretion at the Date of Grant; provided, however, that such price shall not be less than 85% of the Market Value of one Common Share on the Date of Grant. (d) Term of Appreciation Rights. The term during which an Appreciation right may be exercised will be fixed by the Board in its sole discretion at the time such Appreciation Right is granted; provided, however, that in not event will such period exceed ten (10) years from its Date of Grant. (e) Exercise of Appreciation Rights. Each grant of an Appreciation Right shall specify the period or periods of continuous service by the Participant with the Company or any subsidiary which is necessary before the Appreciation Right or installments thereof will vest and become exercisable and may provide for the earlier exercise of such Appreciation Right in the event of a Change in Control or other event. To the extent that the Appreciation Right has become exercisable, an Appreciation Right may be exercised, in whole or in part, from time to time by written notice to the Company in accordance with the procedures set forth in the Appreciation Right Agreement. (f) Terms of Grant. (i) Any grant may provide that the amount payable on exercise of an Appreciation Right may be paid by the Company in cash, in Common Shares, or in any 10 combination thereof and may either grant to the Participant or retain in the Board the right to elect among those alternatives. (ii) Any grant may specify that the amount payable on exercise of an Appreciation Right may not exceed a maximum specified by the Board as of the Date of Grant. (g) Successive Grants. Successive grants of Appreciation Rights may be made to the same Participant whether or not any Appreciation Rights or other Rights previously granted to such Participant remain unexercised. (h) Post-Termination Exercise. The Board shall establish and set forth in each Appreciation Right Agreement that evidences an Appreciation Right whether the Appreciation Right will continue to be exercisable, and the terms and conditions of such exercise, if a Participant ceases to be employed by, or to provide services to, the Company or its subsidiaries, which provisions may be waived by the Board at any time. 9. RESTRICTED SHARES. The Board may from time to time authorize the transfer or issuance to Participants of Restricted Shares upon such terms and conditions it may determine in accordance with the provisions set forth below. Restricted Shares may be granted either in connections with, or independently of, the grant of any Option Rights or Appreciation Rights. The Board may also authorize the issuance or transfer of Restricted Shares to Participants in accordance with the provisions set forth below. (a) Ownership of Restricted Shares. All Restricted Shares transferred or issued to a Participant will be legally and beneficially owned by the Participant from the date of transfer or issuance (entitling such Participant to voting, dividend and other ownership rights), but subject to the risk of forfeiture as provided below, unless and until such shares are forfeited by the Participant in accordance with the Restricted Share Agreement applicable to such Restricted Shares. (b) Restricted Share Agreement. Each issuance or transfer of Restricted Shares will be evidenced by a Restricted Share Agreement executed on behalf of the Company by any officer, director, or, if authorized by the Board, employee of the Company and delivered to and accepted by the Participant and containing such terms and provisions as the Board may approve, except that in no event will any such Restricted Share Agreement include any provision prohibited by the express terms of the Plan. The Restricted Share Agreement shall be consistent with the form of Restricted Share Agreement adopted by the Board and amended from time to time, for the purpose of issuing Restricted Shares. (c) Share Certificates. All certificates representing Restricted Shares will be held in custody by the Company until all restrictions thereon have lapsed, together with a stock power executed by the Participant in whose name such certificates are registered, endorsed in blank and covering determination by the Board that an event causing the forfeiture of the Restricted Shares has occurred. 11 (d) Consideration. Each such issuance or transfer may be made without additional consideration. (e) Substantial Risk of Forfeiture, Restrictions and Forfeiture. (i) The Restricted Share Agreement applicable to each transfer or issuance of Restricted Shares shall specify the period or periods and/or event or events during and/or as a result of which the Restricted Shares, will be subject to forfeiture. Such period or periods and/or event or events shall be determined by the Board at the Date of Grant in its sole discretion; provided, however, that the Restricted Share must be subject to a "substantial risk of forfeiture "within the meaning of Section 83 of the Code. (ii) During the period when any Common Shares transferred or issued as Restricted Shares remain subject to a substantial risk of forfeiture, the Participant to whom such Common Shares were transferred or issued may not transfer or otherwise dispose of such Common Shares and any attempt by a Participant to transfer or otherwise dispose of Common Shares that remain subject to a substantial risk of forfeiture will result in the immediate forfeiture of such Common Shares. (iii) In the event that any Restricted Shares are forfeited pursuant to Subsection (ii) above or the provisions of the applicable Restricted Share Agreement, the Company may cancel, reacquire or otherwise transfer the forfeited Common Shares without payment of any consideration to the Participant with respect to such forfeited Common Shares. In the event that the Company is, at the time a forfeiture occurs, holding a certificate representing both Common Shares that have been forfeited and Common Shares as to which the risk of forfeiture has lapsed, the Company shall issue a new certificate in the name of the Participant representing the number of Common Shares as to which the risk of forfeiture has lapsed as soon a practicable following the event of forfeiture. (f) Successive Grants. Successive Grants of Restricted Shares may be made to the same Participant whether or not any Restricted Share Rights or other Rights previously granted to such Participant remain outstanding and/or unexercised. 10. TRANSFERABILITY. (a) No Option Right or Appreciation Right granted under this Plan will be transferable by a Participant other than by will or the laws of descent and distribution except (in the case of a Participant who is not a Director or officer of the Company) to a fully revocable trust of which the Optionee is treated as the owner for federal income tax purposes. Option Rights and Appreciation Rights will be exercisable during the Optionee's life only by him or by his guardian or legal representative. The Board may impose additional restrictions on transfer as well. (b) The Board may specify at the Date of Grant that part or all of the Common Shares that are (i) to be issued or transferred by the Company upon the exercise of Option Rights or Appreciation Rights or (ii) no longer subject to the substantial risk of forfeiture and 12 restrictions on transfer referred to in Section 9(e), will be subject to further restrictions on transfer. 11. FRACTIONAL SHARES. The Company will not be required to issue any fractional Common Shares pursuant to this Plan. The Board may provide for the elimination of fractions and for the settlement of fractions in cash. 12. WITHHOLDING TAXES. To the extent that the Company is required to withhold federal, state, local, or foreign taxes in connection with any payment made or benefit realized by a Participant or other person under this Plan, and the amounts available to the Company for such withholding are insufficient, it will be a condition to the receipt of such payment or the realization of such benefit that the Participant or such other person make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld, which arrangements may include relinquishment of a portion of such benefit. 13. CANCELLATIONS, SUSPENSION AND AMENDMENT. (a) Cancellation and Suspension. The Board, in its sole discretion may cancel or suspend this Plan; provided, however, that no such cancellation or suspension shall effect the continuation or validity of any Right arising pursuant to this Plan prior to such cancellation or suspension. (b) Amendments. Subject to the limitations set forth below, this Plan may be amended as follows: (i) Except for Material Amendments (as defined in Section 13(d) below), the Board, in its sole discretion, may amend this Plan in such respects as the Board deems advisable. (ii) With respect to Material Amendments, such amendments must first be adopted by the Board and then submitted for approval by the Company's Stockholders in accordance with all applicable laws, regulations and rules. No Material Amendment will be effective without, or prior to obtaining, stockholder approval. (c) Prohibited Amendments. Notwithstanding the provisions of Subsection (b) above, no amendment to this Plan will be effective if such Amendment would cause Rule 16b-3 to become inapplicable to the Plan during any period which the Company has any class of equity Securities registered pursuant to Section 13 or 15 of the Exchange Act. (d) Definition of Material Amendment. For purposes of this Section, the term "Material Amendment" shall mean any material modification of the terms of the Plan, including without imitation (a) any increase in the number of shares to be issued under the Plan (other than as authorized by Section 4(c) hereof); (b) any material increase in the benefits to Participants, including any change in the Plan to (i) permit a repricing (or decrease in exercise price) of outstanding Option Rights or Appreciation Rights, (ii) reduce the price at which Option Rights, Appreciation Rights or Restricted Shares may be offered or (iii) extend the duration of the Plan; 13 (c) any modification of the class of Participants eligible to participate in the Plan, (d) any expansion in the types of awards provided under the Plan and (e) any other amendment that would qualify as a "material amendment" under the NASDAQ National Market listing standards, as amended from time to time. (e) Death, Disability or Retirement. In case of termination of employment by reason of death, disability or normal or early retirement, or in the case of hardship or other special circumstances, of a Participant who holds an Option Right or Appreciation Right not immediately exercisable in full or any Restricted Shares as to which the substantial risk of forfeiture or the prohibition or restriction on transfer has not lapsed, or who holds Common Shares subject to any transfer restriction imposed pursuant to Section 10(b), the Board may take such action as it deems equitable in the circumstances or in the best interests of the Company including without limitation waiving or modifying any other limitation or requirement under any such award. 14. MISCELLANEOUS. (a) Continued Employment or Service. This Plan will not confer upon any Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate or modify the terms of such Participant's employment or other service at any time. (b) Non-Exclusivity of the Plan. Nothing contained in the Plan is intended to amend, modify or rescind any previously approved compensation plans or programs entered into by the Company. The Plan will be construed to be in addition to any and all such other plans or programs. Neither the adoption of the Plan nor the submission of the Plan to the Stockholders for approval will be construed as creating any limitations on the power of authority of the Board to adopt such additional or other compensation arrangements as the Board may deem necessary or desirable. (c) Severability. To the extent that any provision of this Plan would prevent any Option Right that was intended to qualify an Incentive Stock Option from qualifying as such, that provision will be null and void with respect to such Option Right, but will remain in effect for other Option Rights and there will be no further effect on any provision of this Plan. (d) Governing Law. This Plan will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflict of laws thereof. If any provision of this Plan is held to be invalid or unenforceable, no other provision of this Plan will be affected thereby. (e) Compliance with Laws. The Plan is intended to conform to the extent necessary with Code, the Securities Act, the Exchange Act, all rules and regulations promulgated by the SEC pursuant to the Securities Act and the Exchange Act and the listing standards of the NASDAQ National Market. The Plan will be administered, and the awards granted and exercised, only in such a manner as to conform to these laws, rules and regulations. Any 14 Common shares delivered under the Plan shall be subject to such restrictions, and the participant acquiring such securities shall, if requested by the Company, provide such assurances and representations to the Company as the Company deems necessary or desirable to assure compliance with all applicable legal requirements. To the extent permitted by applicable law, the Amended and Restated Plan and the awards granted thereunder shall be deemed amended to the extent necessary to conform to such laws, rules and regulations. (f) Effective Date. The effective date of the 2002 Equity Incentive Plan (the "Original Plan") was January 1, 2002 (the "Original Plan Effective Date"). The Original Plan Effective Date applies to any Rights issued pursuant to the Original Plan prior to the adoption of this Plan. This Plan shall be effective only upon the approval by the Company's Stockholders in accordance with all applicable laws, regulations and rules. Subject to the foregoing condition, Rights may be granted pursuant to this Plan from time to time within the period commencing upon adoption of this Plan by the Company's Stockholders and ending ten (10) years after the adoption of this Plan by the Company's stockholders. A failure of the Company's stockholders to approve this Plan shall not affect any Rights issued under the Original Plan. 15 EX-23.1 4 c88987exv23w1.txt CONSENT Exhibit 23.1 [LETTERHEAD of KPMG LLP] CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors SPSS Inc.: We consent to the use of our report dated July 23, 2004, with respect to the consolidated balance sheets of SPSS Inc. and subsidiaries as of December 31, 2002 and 2003, and the related consolidated statements of operations, comprehensive income (loss), stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2003, and the related consolidated financial statement schedule, incorporated herein by reference and to the reference to our firm under the heading "Experts" in the prospectus. Our report dated July 23, 2004, contains an explanatory paragraph that refers to the Company's restatement of the consolidated financial statements as of and for each of the years in the two-year period ended December 31, 2002, a change in the Company's method of accounting for goodwill and other intangible assets upon the adoption of Statement of Financial Accounting Standards (SFAS) No. 142, "Goodwill and Other Intangible Assets" effective January 1, 2002, and the Company's adoption of SFAS No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity" effective July 1, 2003. /s/ KPMG LLP -------------------------- Chicago, Illinois OCTOBER 26, 2004 EX-23.2 5 c88987exv23w2.txt CONSENT Exhibit 23.2 [LETTERHEAD OF PRICEWATERHOUSECOOPERS ACCOUNTANTS N.V.] CONSENT OF INDEPENDENT AUDITORS We hereby consent to the incorporation by reference in this Registration Statements on Form S-8 of SPSS Inc. of our report dated April 17, 2003, except for Notes 17 and 18 for which the date of our report is December 17, 2003, relating to the consolidated financial statements of Data Distilleries B.V. which appear in SPSS Inc.'s Form 8K/A dated January 19, 2004. PricewaterhouseCoopers Accountants N.V. /s/ PRICEWATERHOUSECOOPERS ACCOUNTANTS N.V. Amsterdam, the Netherlands OCTOBER 27, 2004 -----END PRIVACY-ENHANCED MESSAGE-----