SEC Comment Letter for PROGRESS SOFTWARE (PRGS) — Jun 4, 2009
PROGRESS SOFTWARE CORP /MA
Date: June 4, 2009 · CIK: 0000876167 · Accession: 0000000000-09-029640
AI Filing Summary & Sentiment
File numbers found in text: 000-19417
Referenced dates: February 25, 2009
Letter
Mail Stop 4561 May 7, 2009 Via U.S. Mail and Facsimile (781) 280-4901 Norman R. Robertson Chief Financial Officer Progress Software Corporation 14 Oak Park Bedford, Massachusetts 01730
Re: Progress Software Corporation Amendment No. 1 to Form 10-K for the Fiscal Year Ended November 30, 2008 Filed March 27, 2009 Form 10-Q for the Fiscal Quarter Ended February 28, 2009 Filed April 9, 2009 Definitive Proxy Statement Filed April 10, 2009 File No. 033-41752
Dear Mr. Robertson:
We have limited our review of your filing to those issues contained in our letter dated February 25, 2009. All of our comment s pertain to our letter and the above- referenced filings. Should you have any ques tions concerning our co mments or any other aspect of our review, please feel free to call us at the te lephone numbers listed at the end of this letter. Amendment No. 1 to Annual Report on Form 10-K for fiscal year ended November 30,
General
1. We note that you are filing your Exchange Act re ports on EDGAR using an incorrect file number (033-41752), although the correct file number appears on the facing page of your Form 10-K/A (000-19417). Please advise.
Norman R. Robertson Progress Software Corporation May 7, 2009 Page 2 Part III
Item 11. Executive Compensation, page 6
Compensation Discussion and Analysis, page 6
Administration and Objectives of our Executive Compensation Program, page 6
2. We note your disclosure on page 7 that you use peer and industry group data prepared by Radford Surveys and C onsulting, analyzing the compensation practices of 14 other software companie s, to assist you in making decisions on executive compensation. Please tell us the extent to which you considered the comparative performance of these companies when making executive compensation decisions, and, if you did, how your performance compares to theirs. Please confirm that you will provide similar disclosure in future filings.
Executive Compensation Components, page 7
3. We note from your disclosure on page 8 that your compensation committee decided to increase the base salaries of Messrs. Ireland, Reidy and Robertson in 2008 and to keep Mr. Stamen’s salary at it s 2007 level. In yo ur response letter, please explain in more specific detail how your compensation committee reached these compensation decisions. Please id entify the specific factors that the compensation committee considered in determining each officer’s base salary in 2008 and explain how the company evaluated and weighed each factor. For example, please tell us the weight th e compensation committee assigned to Mr. Alsop’s recommendations regarding base salary levels. Also, we note your disclosure that salary in creases were based upon a revi ew of individual, business unit and/or departmental c ontribution and performance by your officers. Please describe the specific items of corporat e and individual performance that were taken into account in making decisions re garding base salary levels. See Item 402(b)(2)(v) and (vii) of Regulation S-K. Please confirm that you will provide similar disclosure in future filings.
4. We note your disclosure on page 9 th at in April 2008 your Compensation Committee increased the target incentive bonus of each of Messrs. Ireland, Reidy, Robertson and Stamen by between 4% and 25%. In your resp onse letter, please explain why the compensation committee decided to increase the target incentive bonuses. Please identify the factors that the Compensation Committee considered in making this change. See Item 402(b)(ix) of Regulation S-K.
Norman R. Robertson Progress Software Corporation May 7, 2009 Page 3 Definitive Proxy Statement filed on April 10, 2009
5. We note that the proxy statement was not filed in preliminary form with the Commission. Given that the proxy statement is soliciting proxies, in part, to fix the number of the company’s directors at six, it does not ap pear that the proxy statement qualifies under Rule 14a-6 for the exclusion from filing in preliminary form. Please advise. Form 10-Q for the quarter ended February 28, 2009
Item 4. Controls and Procedures, page 22
6. You do not appear to fully address wh ether your disclosu re controls and procedures, as defined in Rule 13a-15(e) under the Exchange Act, are effective. The rule requires that the disclosure c ontrols and procedures be “designed to ensure that information required to be disc losed by the issuer in the reports that it files or submits under the Act…is recorded, processed, summarized and reported, within the time frames specified in th e Commission’s rules and forms,” and that they also be designed to ensure that “i nformation required to be disclosed by an issuer . . . is accumulated and communicated to the issuer's management . . . as appropriate to allow timely decisions regarding required disclosure.” Please confirm, if true, that your disclosure c ontrols and procedures for the relevant annual and quarterly periods met all of the requirements of Rule 13a-15(e). Additionally, tell us how you intend to co mply with this requirement in your future reports by including a complete statement in your controls and procedures section or, alternatively, by referring to the definition c ontained in Rule 13a-15(e).
* * * * * You may contact Ryan Houseal, Attorn ey-Advisor at (202) 551-3105, or in his absence, Matthew Crispino, Staff Attorney, at (202) 551-3456. If you require further assistance, please contact me, at (202) 551-3735. Sincerely,
Barbara C. Jacobs Assistant Director
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Mail Stop 4561 May 7, 2009 Via U.S. Mail and Facsimile (781) 280-4901 Norman R. Robertson Chief Financial Officer Progress Software Corporation 14 Oak Park Bedford, Massachusetts 01730 Re: Progress Software Corporation Amendment No. 1 to Form 10-K for the Fiscal Year Ended November 30, 2008 Filed March 27, 2009 Form 10-Q for the Fiscal Quarter Ended February 28, 2009 Filed April 9, 2009 Definitive Proxy Statement Filed April 10, 2009 File No. 033-41752 Dear Mr. Robertson: We have limited our review of your filing to those issues contained in our letter dated February 25, 2009. All of our comment s pertain to our letter and the above- referenced filings. Should you have any ques tions concerning our co mments or any other aspect of our review, please feel free to call us at the te lephone numbers listed at the end of this letter. Amendment No. 1 to Annual Report on Form 10-K for fiscal year ended November 30, 2008 General 1. We note that you are filing your Exchange Act re ports on EDGAR using an incorrect file number (033-41752), although the correct file number appears on the facing page of your Form 10-K/A (000-19417). Please advise. Norman R. Robertson Progress Software Corporation May 7, 2009 Page 2 Part III Item 11. Executive Compensation, page 6 Compensation Discussion and Analysis, page 6 Administration and Objectives of our Executive Compensation Program, page 6 2. We note your disclosure on page 7 that you use peer and industry group data prepared by Radford Surveys and C onsulting, analyzing the compensation practices of 14 other software companie s, to assist you in making decisions on executive compensation. Please tell us the extent to which you considered the comparative performance of these companies when making executive compensation decisions, and, if you did, how your performance compares to theirs. Please confirm that you will provide similar disclosure in future filings. Executive Compensation Components, page 7 3. We note from your disclosure on page 8 that your compensation committee decided to increase the base salaries of Messrs. Ireland, Reidy and Robertson in 2008 and to keep Mr. Stamen’s salary at it s 2007 level. In yo ur response letter, please explain in more specific detail how your compensation committee reached these compensation decisions. Please id entify the specific factors that the compensation committee considered in determining each officer’s base salary in 2008 and explain how the company evaluated and weighed each factor. For example, please tell us the weight th e compensation committee assigned to Mr. Alsop’s recommendations regarding base salary levels. Also, we note your disclosure that salary in creases were based upon a revi ew of individual, business unit and/or departmental c ontribution and performance by your officers. Please describe the specific items of corporat e and individual performance that were taken into account in making decisions re garding base salary levels. See Item 402(b)(2)(v) and (vii) of Regulation S-K. Please confirm that you will provide similar disclosure in future filings. 4. We note your disclosure on page 9 th at in April 2008 your Compensation Committee increased the target incentive bonus of each of Messrs. Ireland, Reidy, Robertson and Stamen by between 4% and 25%. In your resp onse letter, please explain why the compensation committee decided to increase the target incentive bonuses. Please identify the factors that the Compensation Committee considered in making this change. See Item 402(b)(ix) of Regulation S-K. Norman R. Robertson Progress Software Corporation May 7, 2009 Page 3 Definitive Proxy Statement filed on April 10, 2009 5. We note that the proxy statement was not filed in preliminary form with the Commission. Given that the proxy statement is soliciting proxies, in part, to fix the number of the company’s directors at six, it does not ap pear that the proxy statement qualifies under Rule 14a-6 for the exclusion from filing in preliminary form. Please advise. Form 10-Q for the quarter ended February 28, 2009 Item 4. Controls and Procedures, page 22 6. You do not appear to fully address wh ether your disclosu re controls and procedures, as defined in Rule 13a-15(e) under the Exchange Act, are effective. The rule requires that the disclosure c ontrols and procedures be “designed to ensure that information required to be disc losed by the issuer in the reports that it files or submits under the Act…is recorded, processed, summarized and reported, within the time frames specified in th e Commission’s rules and forms,” and that they also be designed to ensure that “i nformation required to be disclosed by an issuer . . . is accumulated and communicated to the issuer's management . . . as appropriate to allow timely decisions regarding required disclosure.” Please confirm, if true, that your disclosure c ontrols and procedures for the relevant annual and quarterly periods met all of the requirements of Rule 13a-15(e). Additionally, tell us how you intend to co mply with this requirement in your future reports by including a complete statement in your controls and procedures section or, alternatively, by referring to the definition c ontained in Rule 13a-15(e). * * * * * You may contact Ryan Houseal, Attorn ey-Advisor at (202) 551-3105, or in his absence, Matthew Crispino, Staff Attorney, at (202) 551-3456. If you require further assistance, please contact me, at (202) 551-3735. Sincerely, Barbara C. Jacobs Assistant Director