As filed with the Securities and Exchange Commission on March 13, 2000
Registration No. 333-_________________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
PREDICTIVE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3808483
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
145 HUDSON STREET
NEW YORK, NEW YORK 10013
(Address of principal executive offices) (Zip Code)
----------
PREDICTIVE SYSTEMS, INC.
1999 STOCK INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
----------
GARY N. PAPILSKY, ESQ.
VICE PRESIDENT AND
GENERAL COUNSEL
PREDICTIVE SYSTEMS, INC.
145 HUDSON STREET
NEW YORK, NEW YORK 10013
(Name and address of agent for service)
(212) 219-4400
(Telephone number, including area code, of agent for service)
----------
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed
Title of Maximum Proposed
Securities Amount Offering Maximum Amount of
to be to be Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price Fee
---------- ------------- ------------ -------------- ------------
1999 STOCK INCENTIVE PLAN
Common Stock, $0.001 par value 6,655,600 shares $57.00 $379,369,200 $100,153.47
1999 EMPLOYEE STOCK PURCHASE PLAN
Common Stock, $0.001 par value 650,000 $57.00 $37,050,000 $1,504.80
INTERNATIONAL EMPLOYEE STOCK
PURCHASE PLAN
Common Stock, $0.001 par value 100,000 shares $57.00 $5,700,000 $1,504.80
7,405,600 shares AGGREGATE AMOUNT OF
--------- REGISTRATION FEE $111,439.47
---------
==================================================================================================================================
(1) This Registration Statement shall also cover any additional shares of
the Registrant's Common Stock which become issuable under the
Registrant's 1999 Stock Incentive Plan, 1999 Employee Stock Purchase
Plan or International Employee Stock Purchase Plan with respect to the
securities registered hereunder by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the Registrant's receipt of consideration which results in an increase
in the number of the Registrant's outstanding shares of Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average
of the high and low selling prices per share of the Registrant's
Common Stock on March 6, 2000, as reported, by the Nasdaq
National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Predictive Systems, 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 prospectus filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act
of 1933, as amended (the "1933 Act"), in connection with the
Registrant's Registration Statement No. 333-84045, in which
there is set forth the audited financial statements for the
Registrant's fiscal year ended December 31, 1998.
(b) The Registrant's Quarterly Report on Form 10-Q for the
period ended September 30, 1999 filed with the Commission
November 15, 1999.
(c) The Registrant's Registration Statement on Form 8-A12G/A filed
with the Commission on October 26, 1999, including any
amendments or reports filed for the purpose of updating such
description, in which there is described the terms, rights and
provisions applicable to the Registrant's Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (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. 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 DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Certificate of
Incorporation in effect as of the date hereof (the "Certificate") provides that,
except to the extent prohibited by the Delaware General Corporation Law, as
amended (the "DGCL"), the Registrant's directors shall not be personally liable
to the Registrant or its stockholders for monetary damages for any breach of
fiduciary duty as directors of the Registrant. Under the DGCL, the directors
have a fiduciary duty to the Registrant which is not eliminated by this
provision of the Certificate and, inappropriate circumstances, equitable
remedies such as injunctive or other forms of nonmonetary relief will remain
available. In addition, each director will continue to be subject to liability
under the DGCL for breach of the director's duty of loyalty to the Registrant,
for acts or omissions which are found by a court of competent jurisdiction to be
not in good faith or involving intentional misconduct, for knowing violations of
law, for actions leading to improper personal benefit to the director, and for
payment of dividends or approval of stock repurchases or redemptions that are
prohibited by the DGCL. This provision also does not affect the directors'
responsibilities
II-1
under any other laws, such as the Federal securities laws or state or Federal
environmental laws. The Registrant has applied for liability insurance for its
officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify
its directors and officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers, provided that
this provision shall not eliminate or limit the liability of a director: (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest extent
permitted by Section 102(b)(7) of the DGCL and provides that the Registrant may
fully indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that such person is or was a director or officer of the Registrant, or is or was
serving at the request of the Registrant as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statement on Form 8-A12G/A, together with any amendments and exhibits
thereto, which are incorporated herein by reference pursuant to Item 3(c).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Predictive Systems, Inc. 1999 Stock Incentive Plan.
99.2 Predictive Systems, Inc. 1999 Employee Stock Purchase Plan.
99.3 Predictive Systems, Inc. International Employee Stock Purchase Plan.
II-2
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) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) 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 Predictive
Systems, Inc. 1999 Stock Incentive Plan, 1999 Employee Stock Purchase Plan or
International Employee Stock Purchase Plan.
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-3
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 New York, State of New York on this 13th day
of March, 2000.
PREDICTIVE SYSTEMS, INC.
By: /s/ RONALD G. PETTENGILL, JR.
-----------------------------
Ronald G. Pettengill, Jr.
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Ronald G. Pettengill, Jr., Chief Executive
Officer, and Robert L. Belau, President, and each of them, as such person's true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for such person and in such person's 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 same, with all exhibits
thereto, and other 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 done in connection therewith, as fully to all
intents and purposes as such person 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 or her substitutes, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
Signature Title Date
- --------- ----- ----
/s/ RONALD G. PETTENGILL, JR. Chief Executive Officer and Chairman of March 13, 2000
- -------------------------------------- the Board of Directors
Ronald G. Pettengill, Jr. (Principal Executive Officer)
/S/ ROBERT L. BELAU
- -------------------------------------- President and Director March 13, 2000
Robert L. Belau
/S/ GERARD E. DORSEY
- -------------------------------------- Chief Financial Officer March 13, 2000
Gerard E. Dorsey (Principal Financial and Accounting)
Officer
/S/ PETER L. BLOOM
- -------------------------------------- Director March 13, 2000
Peter L. Bloom
II-4
Signature Title Date
- --------- ----- ----
/s/ Donald J. Duffy
- -------------------------------------- Director March 13, 2000
Donald J. Duffy
/s/ Braden R. Kelly
- -------------------------------------- Director March 13, 2000
Braden R. Kelly
/s/ Eric Meyer
- -------------------------------------- Director March 13, 2000
Eric Meyer
- -------------------------------------- Director
Inder Sidhu
/s/ William W. Wyman
- -------------------------------------- Director March 13, 2000
William W. Wyman
II-5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
PREDICTIVE SYSTEMS, INC.
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statement on Form 8-A12G/A, together with any amendments and exhibits
thereto, which are incorporated herein by reference pursuant to Item 3(c).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Predictive Systems, Inc. 1999 Stock Incentive Plan.
99.2 Predictive Systems, Inc. 1999 Employee Stock Purchase Plan.
99.3 Predictive Systems, Inc. International Employee Stock Purchase Plan.