S-8

As filed with the Securities and Exchange Commission on June 20, 2023

Registration No. 333-            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

PEGASYSTEMS INC.

(Exact name of registrant as specified in its charter)

Massachusetts	04-2787865
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

One Main Street

Cambridge, Massachusetts 02142

(617) 374-9600

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

PEGASYSTEMS INC. 2004 LONG-TERM INCENTIVE PLAN

PEGASYSTEMS INC. 2006 EMPLOYEE STOCK PURCHASE PLAN

(Full title of plan)

Matthew J. Cushing

Vice President, Chief Commercial Officer, General Counsel and Secretary

Pegasystems Inc.

One Main Street

Cambridge, Massachusetts 02142

(617) 374-9600

(Name, address and telephone number, including area code, of agent for service)

copy to:

John R. Pitfield

Choate, Hall & Stewart LLP

Two International Place

Boston, Massachusetts 02110

(617) 248-5000

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☒	Accelerated filer	☐
Non-accelerated filer	☐	Smaller reporting company	☐
		Emerging growth company	☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

EXPLANATORY NOTE

This registration statement on Form S-8 is filed by Pegasystems Inc., a Massachusetts corporation (the “Company”), to register (a) an additional 6,000,000 shares of its common stock, $0.01 par value per share (“Common Stock”), for issuance pursuant to the Pegasystems Inc. 2004 Long-Term Incentive Plan (the “LTIP”), and (b) an additional 1,00,000 shares of its Common Stock, for issuance pursuant to the Pegasystems Inc. 2006 Employee Stock Purchase Plan (the “ESPP”). Each of the LTIP and the ESPP was described in the Company’s definitive Proxy Statement for its 2023 Annual Meeting of Stockholders held on June 20, 2023 and was approved by the Company’s stockholders at that meeting.

With respect to the LTIP, the 6,000,000 shares being registered hereby are in addition to the shares of Common Stock registered by the Company’s prior registration statements on Form S-8 filed on June 18, 2004 (File No. 333-116660), September 13, 2011 (File No. 333-176810), on October 4, 2016 (File No. 333-213953), as amended October 6, 2016 (File No. 333-213953), and on July 16, 2020 (File No. 333-239889) (collectively, the “Prior LTIP Registration Statements”). After giving effect to the additional shares registered under this registration statement, the aggregate number of shares registered for issuance under the LTIP will be 42,000,000.

With respect to the ESPP, the 1,000,000 shares being registered are in addition to the shares of Common Stock registered by the Company’s prior registration statement on Form S-8 filed on July 5, 2006 (File No. 333-135596) (the “Prior ESPP Registration Statement” and, collectively with the Prior LTIP Registration Statements, the “Prior Registration Statements”).

This registration statement relates to securities of the same class as that to which the Prior Registration Statements relate and is submitted in accordance with General Instruction E to Form S-8 as promulgated by the Securities and Exchange Commission (the “Commission”) regarding Registration of Additional Securities. Pursuant to such instruction, the contents of the Prior Registration Statements are incorporated herein by reference and made part of this registration statement to the extent not modified or superseded hereby or by a subsequently filed document that is incorporated by reference herein or therein. In accordance with the instructional note to Part I of Form S-8, the information specified by Part I of Form S-8 has been omitted from this registration statement. The document(s) containing the information specified by Part I of Form S-8 will be sent or given to participants as specified by Securities Act Rule 428(b)(1).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference

The following documents of the Company filed with the Commission are hereby incorporated by reference in this registration statement:

(a) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022 filed on February 15, 2023 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”);

(b) The Company’s Quarterly Report on Form 10-Q filed with the Commission on April 26, 2023;

(c) The Company’s Current Reports on Form 8-K filed with the Commission on January 3, 2023, February  7, 2023, February  13, 2023 and March 10, 2023;

(d) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2022; and

(e) The description of the Company’s Common Stock contained in Exhibit 4.4 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022 filed on February 15, 2023 under the Securities Exchange Act.

In addition, all documents filed by the Company after the initial filing date of this registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and prior to the filing of a post-effective amendment which indicates that all shares registered hereunder have been sold or which deregisters all shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be 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 herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4. Description of Securities

Not applicable.

Item 5. Interests of Named Experts and Counsel

Not applicable.

Item 6. Indemnification of Officers and Directors

Article VII of the Company’s Amended and Restated By-Laws provides for indemnification of the Company’s directors and officers to the fullest extent permitted under the Massachusetts Business Corporation Act (the “MBCA”). Section 8.51 of the MBCA provides that a corporation may indemnify a director who is a party to a proceeding because he is a director against liability incurred in the proceeding if he conducted himself in good faith and he reasonably believed that his conduct was in the best interests of the corporation or that his conduct was at least not opposed to the best interests of the corporation, and, in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. Section 8.52 of the MBCA requires corporations to indemnify any director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding. Section 8.53 of the MBCA provides that a corporation may advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding because he is a director under certain circumstances. Section 8.54 of the MBCA provides that a director who is a party to a proceeding because he is a director may apply for indemnification or an advance of expenses to the court conducting the proceeding or to another court of competent jurisdiction.

Section 8.56 of the MBCA provides that a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he is an officer of the corporation to the same extent as a director, and, if he is an officer but not a director (or if he is both an officer and a director but the basis on which he is made a party to the proceeding is an act or omission solely as an officer), to such further extent as may be provided by the articles of organization, the bylaws, a resolution of the board of directors or contract, except for liability arising out of acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law. Section 8.56 of the MBCA also provides that an officer of the corporation who is not a director is entitled to mandatory indemnification under Section 8.52, and may apply to a court for indemnification or an advance for expenses under Section 8.54, in each case to the same extent to which a director may be entitled to indemnification or advance under those provisions.

In accordance with Section 2.02(b)(4) of the MBCA, Article VI(4) of the Company’s Restated Articles of Organization (as amended) provides that no director of the Company shall be liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Company or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for improper distributions under Section 6.40 of the MBCA or (iv) for any transaction in which the director derived an improper personal benefit.

The Company has also entered into a Director Indemnification Agreement with each of its directors (collectively, the “Director Indemnification Agreements”), pursuant to which the Company has agreed to indemnify each director against certain liabilities that may arise by reason of such director’s status or service as a director of the Company, and to advance such director the expenses incurred as a result of a proceeding as to which such director may be indemnified. The Director Indemnification Agreements are intended to provide rights of indemnification to the fullest extent permitted under the MBCA and are in addition to any other rights such directors may have under the Company’s Restated Articles of Organization (as amended), its Amended and Restated By-laws and applicable law.

Section 8.57 of the MBCA contains provisions authorizing a corporation to obtain insurance on behalf of any director or officer of the corporation against liabilities, whether or not the corporation would have the power to indemnify against such liabilities. The Director Indemnification Agreements require the Company to maintain directors’ and officers’ liability insurance with respect to each director for so long as such director continues to serve as a director of the Company and for six (6) years thereafter. The Company also maintains directors’ and officers’ liability insurance for the benefit of certain of its officers who are not also directors.

Item 7. Exemption from Registration Claimed

Not applicable.

Item 8. Exhibits

Exhibit No.	Description	Incorporation by Reference			Filed Herewith
		Form	Location	Filing Date
4.1	Restated Articles of Organization of the Registrant and Amendments thereto	10-Q	3.1	11/4/14
4.2	Amended and Restated Bylaws of Pegasystems Inc	8-K	3.2	6/15/20
4.3	Specimen Certificate Representing the Common Stock	S-1	4.1	6/19/96
4.4	Indenture, dated as of February 24, 2020, between Pegasystems Inc. and U.S. Bank National Association, as trustee	8-K	4.1	2/24/20
4.5	Form of certificate representing the 0.75% Convertible Senior Notes due 2025	8-K	Exhibit A to 4.4	2/24/20
4.6	Description of Common Stock	10-K	4.2	2/12/20
5.1	Opinion of Choate, Hall & Stewart LLP				x
23.1	Consent of Deloitte & Touche LLP				x
24.1	Power of Attorney (included in the signature page hereto)				x
99.1	Pegasystems Inc. 2004 Long-Term Incentive Plan	Def 14A	Appendix A	4/28/23
99.2	Pegasystems Inc. 2006 Employee Stock Purchase Plan	Def 14A	Appendix B	4/28/23
107	Filing Fee Table				x

Item 9. Undertakings

(a) The Company hereby undertakes:

(1) To file, during any period in which offers or sales of the securities offered hereby 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;

(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. 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 prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 this registration statement or any material change to such information in this registration statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.

(2) That, for the purpose of determining any liability under the Securities 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.

(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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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.

(h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing a Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Cambridge, Massachusetts on June 20, 2023.

	PEGASYSTEMS INC.
By:	/s/ Matthew J. Cushing
	Matthew J. Cushing
	Vice President, Chief Commercial Officer, General Counsel and Secretary

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Alan Trefler, Kenneth Stillwell, and Matthew J. Cushing, jointly and severally, his or her true and lawful attorneys-in-fact and agents with full powers of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be in and about the premises, as fully to all intents and purposes as he or she 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 thereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below on the dates indicated by the following persons in the capacities indicated.

Name	Title	Date
/s/ Alan Trefler Alan Trefler	Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)	June 20, 2023
/s/ Kenneth Stillwell Kenneth Stillwell	Senior Vice President, Chief Financial Officer (Principal Financial Officer)	June 20, 2023
/s/ Efstathios Kouninis Efstathios Kouninis	Chief Accounting Officer, Vice President of Finance, and Treasurer (Principal Accounting Officer)	June 20, 2023
/s/ Peter Gyenes Peter Gyenes	Director	June 20, 2023
/s/ Richard Jones Richard Jones	Director	June 20, 2023
/s/ Christopher Lafond Christopher Lafond	Director	June 20, 2023
/s/ Dianne Ledingham Dianne Ledingham	Director	June 20, 2023
/s/ Sharon Rowlands Sharon Rowlands	Director	June 20, 2023
/s/ Larry Weber Larry Weber	Director	June 20, 2023

EX-5.1

Exhibit 5.1

June 20, 2023

Pegasystems Inc.

One Main Street

Cambridge, MA 02142

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

This opinion is delivered to you in connection with the registration statement on Form S-8 (the “Registration Statement”) to be filed by Pegasystems Inc. (the “Company”) on the date hereof with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), for registration under the Securities Act of (a) 6,000,000 additional shares of the Company’s common stock, $0.01 par value per share (the “LTIP Shares”), issuable pursuant to the Pegasystems Inc. 2004 Long-Term Incentive Plan (the “LTIP”) and (b) 1,000,000 additional shares of the Company’s common stock, $0.01 par value per share (the “ESPP Shares” and, collectively with the LTIP Shares, the “Shares”), issuable pursuant to the Pegasystems Inc. 2006 Employee Stock Purchase Plan (the “ESPP” and, collectively with the “LTIP”, the “Plans”).

We have examined the Restated Articles of Organization of the Company (including Articles of Amendment thereto), the corporate minute books, the Amended and Restated By-Laws of the Company, the Plans and the Registration Statement. We have also examined such other documents, records and certificates and made such further investigation as we have deemed necessary for the purposes of this opinion and have assumed, without independent inquiry, the accuracy of these documents. In that examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed as copies, the authenticity and completeness of all original documents reviewed in original form and the legal competence of each individual executing such documents.

Based upon and subject to the foregoing, we are of the opinion that the Shares to be sold by the Company under the Plans, each as in effect on the date hereof, when issued in accordance with the terms of the applicable Plan will be legally issued, fully paid and nonassessable.

We understand that this opinion is to be used in connection with the Registration Statement and consent to the filing of this opinion as an exhibit to the Registration Statement.

Very truly yours,

/s/ Choate, Hall & Stewart LLP

CHOATE, HALL & STEWART LLP

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 15, 2023 relating to the financial statements of Pegasystems Inc. and the effectiveness of Pegasystems Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Pegasystems Inc. for the year ended December 31, 2022.

/s/ Deloitte & Touche LLP

Boston, Massachusetts

June 20, 2023

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

Pegasystems Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, par value $0.01 per share, Pegasystems Inc. 2006 Employee Stock Purchase Plan	Rule 457(c) and Rule 457(h)	1,000,000	$43.44(2)	$43,440,000.00	$0.0001102	$4,787.09
Equity	Common Stock, par value $0.0 per share, Pegasystems Inc. 2004 Long-Term Incentive Plan	Rule 457(h)	1,224,473	$47.27(3)	$57,880,838.71	$0.0001102	$6,378.47
Equity	Common Stock, par value $0.01 per share, Pegasystems Inc. 2004 Long-Term Incentive Plan	Rule 457(c) and Rule 457(h)	4,775,527	$51.10(4)	$244,029,429.70	$0.0001102	$26,892.04
Total Offering Amounts					$345,350,268.41		$38,057.60
Total Fees Previously Paid							$—
Total Fee Offsets							$—
Net Fee Due							$38,057.60

(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Registrant’s common stock that become issuable under the Registrant’s 2004 Long-Term Incentive Plan (the “LTIP”) and the Registrant’s 2006 Employee Stock Purchase Plan (the “ESPP”) by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Registrant’s common stock, as applicable.

(2) Such shares are issuable upon exercise of outstanding options with fixed exercise prices. Pursuant to Rule 457(h), the aggregate offering price and the fee have been computed upon the basis of the price at which the options may be exercised.

(3) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of $43.44 per share of common stock, the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Global Select Market on June 13, 2023, multiplied by 85%, which is the percentage of the price per share applicable to purchases under the ESPP.

(4) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of $51.10 per share of common stock, the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Global Select Market on June 13, 2023.