-----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, Am14IS6bs7ND5nP5GZ0Jz5xrKEXbr6kZPG4UI+OWpSClXW6jjoVJ84FbxMSeDudO 7/s8GU4/6YPbY84Reb/8HA== 0000950137-06-005040.txt : 20060427 0000950137-06-005040.hdr.sgml : 20060427 20060427135745 ACCESSION NUMBER: 0000950137-06-005040 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20060427 DATE AS OF CHANGE: 20060427 EFFECTIVENESS DATE: 20060427 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: 333-133587 FILM NUMBER: 06784386 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 c04601sv8.txt REGISTRATION STATEMENT AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 27, 2006 REGISTRATION NO. 333-________ ================================================================================ UNITED STATES 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 (Address of Principal Executive Offices) (Zip Code) SECOND AMENDED AND RESTATED 2002 EQUITY INCENTIVE PLAN (Full title of plan) RAYMOND H. PANZA EXECUTIVE VICE PRESIDENT, CORPORATE OPERATIONS, CHIEF FINANCIAL OFFICER AND SECRETARY SPSS Inc. 233 South Wacker Drive Chicago, Illinois 60606 (312) 651-3000 (Name and address of agent for service) (Telephone number, including area code, of agent for service) Copies to: David A. Schuette, Esq. Mayer Brown Rowe & Maw LLP 71 South Wacker Drive Chicago, Illinois 60606 (312) 782-0600 CALCULATION OF REGISTRATION FEE
=============================================================================================================== Proposed maximum Proposed maximum Title of securities to be Amount to be offering price per aggregate offering Amount of registered registered (1) share (2) price (3) registration fee - --------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value (4) 2,000,000 $33.52 $67,040,000 $7,173.28 ===============================================================================================================
(1) Also registered hereby pursuant to Rule 416 of the Securities Act of 1933 are such additional and indeterminable number of shares as may be issuable due to the anti-dilution provisions of the plan. (2) In accordance with Rule 457(c) under the Securities Act of 1933, 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 April 24, 2006, which is a specified date within five business days prior to the date of filing of this registration statement. (3) Solely for the purpose of calculating the registration fee, the proposed aggregate offering price has been computed in accordance with Rule 457(h) under the Securities Act of 1933. (4) Including the related common stock purchase rights. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference The following documents, which have been filed by SPSS Inc., a Delaware corporation ("SPSS" or the "Registrant"), with the Securities and Exchange Commission (the "SEC" or "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference herein and shall be deemed to be a part hereof: (a) The annual report of SPSS Inc. on Form 10-K filed with the SEC on March 6, 2006 for the fiscal year ended December 31, 2005; (b) The current report of SPSS Inc. on Form 8-K filed with the SEC on March 17, 2006. (c) The current report of SPSS Inc. on Form 8-K filed with the SEC on February 2, 2006. (d) The current report of SPSS Inc. on Form 8-K/A (Amendment No. 2) filed with the SEC on January 20, 2006. (e) The current report of SPSS Inc. on Form 8-K filed with the SEC on January 17, 2006. (f) The description of the common stock of SPSS Inc. contained in its registration statement filed with the SEC on Form 8-A dated August 4, 1993, as amended by 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 Exchange Act 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; provided, however, that unless otherwise stated, nothing contained herein shall be deemed to incorporate by reference into this registration statement information furnished to, but not filed with, the SEC. Any statement contained in any document, all or a portion of which is incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained or incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. II-1 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. 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 II-2 indemnified against expenses (including attorneys' fees) actually and reasonably 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 (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. See Exhibit Index which is incorporated herein by reference. Item 9. Undertakings. SPSS hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of II-3 prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. Provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by SPSS pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference 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. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of SPSS's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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. (5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of SPSS pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, SPSS will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of SPSS relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of SPSS or used or referred to by SPSS; (iii) The portion of any other free writing prospectus relating to the offering containing material information about SPSS or its securities provided by or on behalf of SPSS; and II-4 (iv) Any other communication that is an offer in the offering made by SPSS to the purchaser. (6) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling SPSS pursuant to the foregoing provisions or otherwise, SPSS has been advised that in the opinion of the Commission this indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of SPSS in the successful defense of any action, suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, SPSS will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether this indemnification by SPSS is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of the issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, SPSS 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 April 27, 2006. SPSS INC. By: /s/ Jack Noonan --------------------------------------- Jack Noonan President and Chief Executive Officer POWER OF ATTORNEY KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears immediately below constitutes and appoints Jack Noonan and Raymond H. Panza, or any one of them, his true and lawful attorney-in-fact and agent, each with full power of substitution for such person and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent 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 and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Norman H. Nie Chairman of the Board of Directors April 27, 2006 - ----------------------------------- Norman H. Nie /s/ Jack Noonan President, Chief Executive Officer and Director April 27, 2006 - ----------------------------------- Jack Noonan /s/ Raymond H. Panza Executive Vice President, Corporate Operations, Chief April 27, 2006 - ----------------------------------- Financial Officer Raymond H. Panza and Secretary /s/ Marc D. Nelson Vice President, Corporate Controller April 27, 2006 - ----------------------------------- and Principal Accounting Officer Marc D. Nelson
/s/ Charles R. Whitchurch Director April 27, 2006 - ----------------------------------- Charles R. Whitchurch /s/ Merritt Lutz Director April 27, 2006 - ----------------------------------- Merritt Lutz /s/ Michael Blair Director April 27, 2006 - ----------------------------------- Michael Blair /s/ William B. Binch Director April 27, 2006 - ----------------------------------- William B. Binch /s/ Kenneth H. Holec Director April 27, 2006 - ----------------------------------- Kenneth H. Holec /s/ Michael E. Lavin Director April 27, 2006 - ----------------------------------- Michael E. Lavin
SPSS INC. EXHIBIT INDEX
Incorporation Exhibit by Reference Number Description of Document (if applicable) - ------- ----------------------- --------------- 4.1 Certificate of Incorporation of SPSS. (a), Ex. 3.2 4.2 By-Laws of SPSS. (a), Ex. 3.4 4.3 Amended and Restated Rights Agreement, dated as of August 31, 2004, by and (b), Ex. 4.2 between SPSS Inc. and Computershare Investor Services LLC, as Rights Agent. 4.4 Second Amended and Restated 2002 Equity Incentive Plan. (c), Appendix B 5.1 Opinion of Mayer, Brown, Rowe & Maw LLP. 23.1 Consent of Grant Thornton LLP. 23.2 Consent of KPMG LLP. 23.3 Consent of Mayer, Brown, Rowe & Maw LLP (included in Exhibit 5.1). 24.1 Power of Attorney (included in the signature page to this Registration Statement).
- ---------- (a) Previously filed with Amendment No. 2 to the Registration Statement on Form S-1 of SPSS Inc. filed on August 4, 1993 (File No. 33-64732). (b) Previously filed with Form 8-A12G/A of SPSS Inc. filed on August 31, 2004 (File No. 000-22194). (c) Previously filed with the 2006 Proxy Statement of SPSS Inc., filed on March 28, 2006 (File No. 000-22194). EX-5.1 2 c04601exv5w1.txt OPINION OF MAYER, BROWN, ROWE & MAW LLP Exhibit 5.1 [Mayer Brown Rowe & Maw LLP Letterhead] April 27, 2006 Mayer, Brown, Rowe & Maw LLP 71 South Wacker Drive Chicago, Illinois 60606-4637 SPSS Inc. Main Tel (312) 782-0600 233 South Wacker Drive Main Fax (312) 701-7711 Chicago, Illinois 60606 www.mayerbrownrowe.com Re: SPSS Inc. Registration Statement on Form S-8 Dear Ladies and Gentlemen: We have acted as special counsel to SPSS Inc., a Delaware corporation (the "Company"), in connection with the offer and sale of up to 2,000,000 shares of the Company's common stock, par value $0.01 per share (the "Shares"), pursuant to the Company's Second Amended and Restated 2002 Equity Incentive Plan (the "Plan"), as described in the Form S-8 Registration Statement filed with the Securities and Exchange Commission on the date hereof (the "Registration Statement"). As special counsel to the Company, we have examined originals or copies certified or otherwise identified to our satisfaction of the Company's Restated Certificate of Incorporation, the Company's By-laws, the Plan, resolutions of the Company's Board of Directors and such Company records, certificates and other documents and such questions of law as we considered necessary or appropriate for the purpose of this opinion. In rendering this opinion, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as copies. Based upon and subject to the foregoing, we are of the opinion that the issuance of the Shares has been duly authorized by all necessary corporate action and the Shares, when issued in conformity with the provisions of the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Mayer, Brown, Rowe & Maw LLP MAYER, BROWN, ROWE & MAW LLP Berlin Brussels Charlotte Chicago Cologne Frankfurt Houston London Los Angeles New York Palo Alto Paris Washington, D.C. Independent Mexico City Correspondent: Jauregui, Navarrete y Nader S.C. Mayer, Brown, Rowe & Maw LLP operates in combination with our associated English limited liability partnership in the offices listed above. EX-23.1 3 c04601exv23w1.txt CONSENT OF GRANT THORNTON LLP Exhibit 23.1 [Grant Thornton Letterhead] CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We have issued our reports dated March 3, 2006, accompanying the consolidated financial statements and schedules, management's assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial reporting included on the Form 10-K of SPSS Inc. for the year ended December 31, 2005. We hereby consent to the incorporation by reference of said reports in the Registration Statement of SPSS Inc. on this Form S-8. /s/ GRANT THORNTON LLP Chicago, Illinois April 27, 2006 EX-23.2 4 c04601exv23w2.txt CONSENT OF KPMG LLP Exhibit 23.2 [KPMG Letterhead] CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Board of Directors SPSS Inc.: We hereby consent to the incorporation by reference in the registration statement on Form S-8 of SPSS Inc. of our report dated March 16, 2005, with respect to the consolidated balance sheet of SPSS Inc. and subsidiaries as of December 31, 2004, and the related consolidated statements of income, comprehensive income, stockholders' equity, and cash flows for each of the years in the two-year period ended December 31, 2004, and the related consolidated financial statement schedule, which report appears in the Annual Report on Form 10-K of SPSS Inc. for the fiscal year ended December 31, 2005. Our report dated March 16, 2005, contains an explanatory paragraph that refers to the Company's adoption of Statement of Financial Accounting Standards No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity" effective July 1, 2003. /s/ KPMG LLP Chicago, Illinois April 25, 2006 -----END PRIVACY-ENHANCED MESSAGE-----