As filed with the Securities and Exchange Commission on February 10, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
 
 
Delaware
76-0168604
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer Identification No.)
 
 
3100 MAIN STREET, SUITE 900
HOUSTON, TEXAS
77002
(Address of Principal Executive Offices)
(Zip Code)
 
 
PROS HOLDINGS, INC. 2007 EQUITY INCENTIVE PLAN
PROS 2013 EMPLOYEE STOCK PURCHASE PLAN

(Full title of the plans)
 
 
ANDRES REINER
CHIEF EXECUTIVE OFFICER AND PRESIDENT
PROS HOLDINGS, INC.
3100 MAIN STREET, SUITE 900
HOUSTON, TEXAS 77002
(Name and address of agent for service)
(713) 335-5151
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.: (Check one)
Large accelerated filer x
Accelerated filer ¨
Non-accelerated filer ¨  
(Do not check if a smaller reporting company)
Smaller reporting company ¨


CALCULATION OF REGISTRATION FEE
Title of securities to be registered
 
Amount to be
registered (1)
 
Proposed maximum
offering price
per share (2)
 
Proposed maximum
aggregate offering
price (2)
 
Amount of
registration fee
Common Stock,
$0.001 par value
 
 
 
 
 
 
 
 
2007 Equity Incentive Plan
 
900,000
 
$36.25
 
$32,625,000
 
$4,202.10
2013 Employee Stock Purchase Plan
 
500,000
 
$36.25
 
$18,125,000
 
$2,334.50
TOTAL
 
1,400,000
 
$36.25
 
$50,750,000
 
$6,536.60
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act” ), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the 2013 Employee Stock Purchase Plan.
(2)    Calculated solely for purposes of this offering under Rule 457(c) and (h) of the Securities Act on the basis of the average of the high and low selling price per share of Registrant’s Common Stock as reported by the New York Stock Exchange on February 7, 2014.




























    


PART I
Information Required in the Section 10(a) Prospectus
The documents containing the information specified in Part I, Items 1 and 2, have been or will be delivered to participants in accordance with Form S-8 and Rule 428 under the Securities Act of 1933, as amended (the “1933 Act” ).
PART II
Information Required in the Registration Statement
Item 3.    Incorporation of documents by reference
PROS Holdings, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
a.
The Registrant’s latest Annual Report on Form 10-K containing audited financial statements for the fiscal year ended December 31, 2012, filed with the Commission on February 22, 2013.
b.
All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”) since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and
c.
The Registrant’s Registration Statement No. 001-33554 on Form 8-A filed with the Commission on June 21, 2007 pursuant to Section 12(b) of the 1934 Act, which describes the terms, rights and provisions applicable to the Registrant’s outstanding Common Stock.
All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Item 4.    Description of securities
The class of securities to be offered is registered under Section 12 of the 1934 Act.
Item 5.    Interests of named experts and counsel
None.
Item 6.    Indemnification of directors and officers
Section 102(b) of the Delaware General Corporation Law authorizes a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach or alleged breach of the director’s “duty of care.” While this statute does not change directors’ duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. The statute has no effect on a director’s duty of loyalty or liability for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, illegal payment of dividends or stock redemptions or repurchases, or for any transaction from which the director derives an improper personal benefit. As permitted by the statute, the Registrant has adopted provisions in its certificate of incorporation that eliminate to the fullest extent permissible under Delaware



law the personal liability of its directors to the Registrant and its stockholders for monetary damages for breach or alleged breach of their duty of care. The Registrant’s certificate of incorporation eliminates the personal liability of each of its directors for monetary damages resulting from any breach of his fiduciary duty as a director, except for liability:
•
for any breach of the director’s duty of loyalty to the Registrant or its stockholders;
•
for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
•
under Section 174 of the Delaware General Corporation Law regarding unlawful dividends, stock purchases and redemptions; or
•
for any transaction from which the director derived an improper personal benefit.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other individuals against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
The Registrant’s bylaws provide that:
•
the Registrant is required to indemnify its directors and officers, subject to limited exceptions in which such directors or officers are adjudged to be liable to the Registrant;
•
the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and
•
the rights conferred in the bylaws are not exclusive.
In addition, the Registrant has entered or will enter in the future into indemnity agreements with each of its current directors and officers. These agreements provide for the indemnification of the Registrant’s officers and directors for all expenses and liabilities incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were agents of the Registrant. At present, there is no pending litigation or proceeding involving a director, officer or employee of the Registrant regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification.
The Registrant also has obtained directors’ and officers’ insurance to cover its directors, officers and some of the Registrant’s employees for liabilities, including coverage for public securities matters.
Reference is made to the underwriting agreement filed as Exhibit 1.1 to Registrant’s Registration Statement on Form S-1 (Registration No. 333-141884), as amended, pursuant to which the underwriters have agreed to indemnify the Registrant’s officers and directors against certain liabilities under the 1933 Act.
Item 7.    Exemption from registration claimed
Not applicable.

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Item 8.    Exhibits
Number
 
Exhibit
4.1
 
Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1.1 of the Registrant’s Form S-1 Registration Statement (Registration No. 333-141884), declared effective by the Securities and Exchange Commission on June 27, 2007).
4.2
 
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on January 7, 2008).
4.3
 
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.3 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on August 27, 2008).
4.4
 
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on August 21, 2013).
4.5
 
Specimen certificate for shares of common stock (incorporated by reference to the exhibit of the same number to the Registrant’s Form S-1 Registration Statement (Registration No. 333-141884), declared effective by the Securities and Exchange Commission on June 27, 2007).
4.6
 
Registration Statement No. 001-33554 on Form 8-A filed with the Securities and Exchange Commission on June 21, 2007 which is incorporated herein by reference pursuant to Item 3(c).
4.7
 
2007 Equity Incentive Plan (which is incorporated herein by reference to Exhibit 10.3 to the Registration Statement on Form S-1 (Registration No. 333-141884), as amended).
4.8
 
PROS 2013 Employee Stock Purchase Plan (which is incorporated herein by reference to Exhibit 10.1 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on June 7, 2013).
5.1*
 
Opinion and consent of DLA Piper LLP (US).
23.1*
 
Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2*
 
Consent of DLA Piper LLP (US) is contained in Exhibit 5.1.
24.1*
 
Power of Attorney. Reference is made to page II-5 of this Registration Statement.
* Filed herewith
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 (i) to include any prospectus required by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) above shall not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d)

II-3

of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (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.
B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into 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.
C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers, or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue.

II-4

SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Houston, State of Texas on this 10th day of February, 2014.
PROS HOLDINGS, INC.
By: /s/ Andres Reiner

Andres Reiner
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, the administrator of the 2013 Employee Stock Purchase Plan has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas on this 10th day of February, 2014.
PROS 2013 EMPLOYEE STOCK
PURCHASE PLAN
By: /s/ Andres Reiner

Andres Reiner
President and Chief Executive Officer

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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of PROS Holdings, Inc., a Delaware corporation, do hereby constitute and appoint Andres Reiner, Charles H. Murphy, and Damian Olthoff and each of them, the lawful attorneys-in-fact and agents with full power of substitution, each with power to act alone, and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated on this 10 th day of February, 2014.
Signature
 
Title
 
 
 
/s/ Andres Reiner
 
President, Chief Executive Officer and Director
Andres Reiner
 
(Principal Executive Officer)
 
 
 
/s/ Charles H. Murphy
 
Executive Vice President and Chief Financial Officer
Charles H. Murphy
 
(Principal Financial and Accounting Officer)
 
 
 
/s/ Ronald Woestemeyer
 
Executive Vice President, Strategic Business Planning and
Ronald Woestemeyer
 
Director
 
 
 
/s/ William Russell
 
Chairman of the Board
William Russell
 
 
 
 
 
/s/ Ellen Keszler
 
Director
Ellen Keszler
 
 
 
 
 
/s/ Greg B. Petersen
 
Director
Greg B. Petersen
 
 
 
 
 
/s/ Timothy V. Williams
 
Director
Timothy V. Williams
 
 
 
 
 
/s/ Mariette M. Woestemeyer
 
Director
Mariette M. Woestemeyer
 
 

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EXHIBIT INDEX
Number
 
Exhibit
4.1
 
Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1.1 of the Registrant’s Form S-1 Registration Statement (Registration No. 333-141884), declared effective by the Securities and Exchange Commission on June 27, 2007).
4.2
 
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on January 7, 2008).
4.3
 
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.3 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on August 27, 2008).
4.4
 
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on August 21, 2013).
4.5
 
Specimen certificate for shares of common stock (incorporated by reference to the exhibit of the same number to the Registrant’s Form S-1 Registration Statement (Registration No. 333-141884), declared effective by the Securities and Exchange Commission on June 27, 2007).
4.6
 
Registration Statement No. 001-33554 on Form 8-A filed with the Securities and Exchange Commission on June 21, 2007 which is incorporated herein by reference pursuant to Item 3(c).
4.7
 
2007 Equity Incentive Plan (which is incorporated herein by reference to Exhibit 10.3 to the Registration Statement on Form S-1 (Registration No. 333-141884), as amended).
4.8
 
PROS 2013 Employee Stock Purchase Plan (which is incorporated herein by reference to Exhibit 10.1 of the Registrant’s Form 8-K filed with the Securities and Exchange Commission on June 7, 2013).
5.1*
 
Opinion and consent of DLA Piper LLP (US).
23.1*
 
Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2*
 
Consent of DLA Piper LLP (US) is contained in Exhibit 5.1.
24.1*
 
Power of Attorney. Reference is made to page II-5 of this Registration Statement.
* Filed herewith



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EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 22, 2013 relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting, which appears in PROS Holdings, Inc.'s Annual Report on Form 10‑K for the year ended December 31, 2012.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
February 10, 2014



EXHIBIT 5.1

 
DLA Piper LLP (US)
401 Congress Avenue, Suite 2500
Austin, Texas 78701-3799
T  512.457.7000
F  512.457.7001
W  www.dlapiper.com
February 10, 2014
PROS Holdings, Inc.
3100 Main Street, Suite 900
Houston, Texas 77002
Ladies and Gentlemen:
As legal counsel for PROS Holdings, Inc., a Delaware corporation (the “Company”), we are rendering this opinion in connection with the registration on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended, of up to 1,400,000 shares (the “Shares”) of Common Stock, $0.001 par value, of the Company which may be issued pursuant to the awards granted under the Company’s 2007 Equity Incentive Plan and 2013 Employee Stock Purchase Plan (collectively, the “Plans”).
We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of Texas and we express no opinion concerning any law other than the law of the State of Texas, the corporation laws of the State of Delaware and the federal law of the United States. As to matters of Delaware corporation law, we have based our opinion solely upon our examination of such laws and the rules and regulations of the authorities administering such laws, all as reported in standard, unofficial compilations. We have not obtained opinions of counsel licensed to practice in jurisdictions other than the State of Texas.
Based on such examination, we are of the opinion that the Shares which may be issued under the Plans are duly authorized shares of the Company’s Common Stock, and, when issued against receipt of the consideration therefore in accordance with the provisions of the Plans, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in such Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, the rules and regulations of the Securities and Exchange Commission promulgated thereunder or Item 509 of Regulation S-K.
This opinion letter is given to you solely for use in connection with the issuance of the Shares in accordance with the Registration Statement and is not to be relied on for any other purpose. Our opinion is expressly


limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Shares or the Registration Statement.
Very truly yours,
/s/ DLA PIPER LLP (US)