As filed with the Securities and Exchange Commission on July 31, 2000.
Registration Statement 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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PERFICIENT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2853258
- ---------------------------------- -----------------------------------
(State or other jurisdiction I.R.S. Employer Identification No.)
of incorporation or organization)
7600-B NORTH CAPITAL OF TEXAS HIGHWAY 07083
SUITE 340, AUSTIN, TEXAS -----
- ---------------------------------------- (Zip Code)
(Address of principal executive offices)
PERFICIENT, INC. 1999 STOCK OPTION/STOCK ISSUANCE PLAN
AND
STOCK OPTIONS GRANTED TO CERTAIN OFFICERS, CONSULTANTS AND ADVISORS OUTSIDE THE
OPTION PLAN
(Full title of the plans)
MR. JOHN T. MCDONALD
CHIEF EXECUTIVE OFFICER
PERFICIENT, INC.
7600-B NORTH CAPITAL OF TEXAS HIGHWAY SUITE 340
AUSTIN, TEXAS 78731
(Name and address of agent for service)
(512) 531-6000
(Telephone number, including area code, of agent for service)
Copy to:
JEFFREY A. BAUMEL, ESQ.
GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE
ONE RIVERFRONT PLAZA
NEWARK, NEW JERSEY 07102-5497
(973) 596-4500
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE(1)
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Common Stock, $.001 par value per share 1,850,000(2) $10.00 $18,500,000 $4,884.00
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Common Stock, $.001 par value per share 376,042(3) $10.00 $ 3,760,420 $992.75
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Total 2,226,042 $10.00 $22,260,420 $5,876.75
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(1) Estimated in accordance with Rule 457(c) solely for the
purposes of calculating the registration fee, based on $10.00 per share the
closing price per share of the Registrant's Common Stock as reported on The
Nasdaq SmallCap Market System on July 27, 2000.
(2) Includes 1,850,000 shares subject to issuance upon the
exercise of stock options granted or to be granted under the Perficient, Inc.
1999 Stock Option/Stock Issuance Plan. Pursuant to Rule 416(c) under the
Securities Act of 1933, as amended, this registration statement also covers
additional shares of Common Stock pursuant to the anti-dilution provisions of
the Plan.
(3) Includes 376,042 shares subject to issuance upon the
exercise of stock options granted to certain officers, employees, consultants,
and advisors to the Company that are not subject to the Perficient, Inc. 1999
Stock Option/Stock Issuance Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Perficient, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-KSB (File No.
001-15169) filed March 31, 2000 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), Registration
Statement on Form SB-2 (File No. 333-78337) filed under the
Securities Act of 1933, as amended (the "Securities Act") and
declared effective July 28, 1999 by the Securities and
Exchange Commission (the "Commission"), Registration Statement
on Form SB-2 (File No. 333-35948) filed April 28, 2000 under
the Securities Act, Amendment No. 1 to Registration Statement
on Form SB-2 (File No. 333-35948) filed June 23, 2000 under
the Securities Act, Current Report on Form 8-K for the event
dated January 3, 2000, Amendment No. 1 to Current Report on
Form 8-K for the event dated January 3, 2000, Current Report
on Form 8-K for the event dated February 7, 2000, Current
Report on Form 8-K for the event dated May 1, 2000, Amendment
No. 1 to Current Report on Form 8-K for the event dated May 1,
2000, Amendment No. 2 to Current Report on Form 8-K for the
event dated May 1, 2000, and Quarterly Report on Form 10-QSB
(File No. 001-15169) filed May 15, 2000 under the Exchange
Act;
(2) The description of the Company's common stock, $.001 par value
per share (the "Common Stock"), contained in the foregoing
Registration Statement on Form SB-2 (File No. 333-35948) and
the Company's Registration Statement on Form 8-A (File No.
001-15169) filed on July 22, 1999 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(3) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, 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, shall
be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the respective date of
filing of such documents. Any statement contained in a
document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement
contained in this Registration Statement or in any other
subsequently filed document which is incorporated by reference
modifies or replaces such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law provides, in effect, that
we may, and in certain cases must, indemnify any person made a party to any
action by reason of the fact that he is or was one of our directors, officers,
employees, or agents against, in the case of a non-derivative action,
judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees) incurred by him as a result of such action, and in
the case of a derivative action, against expenses (including attorney's fees),
if in either type of action he acted in good faith and in a manner he
reasonably believed to be in or not opposed to our best interests. This
indemnification does not apply, in a derivative action, to matters as to which
it is adjudged that the director, officer, employee or agent is liable to us,
unless upon court order it is determined that, despite such adjudication of
liability, but in view of all the circumstances of the case, he is fairly and
reasonably entitled to indemnity for expenses, and, in a non-derivative
action, to any criminal proceeding in which such person had reasonable cause
to believe his conduct was unlawful.
Article VI of our certificate of incorporation provides that no
director shall be liable to us or our stockholders for monetary damages for
breach of fiduciary duty as a director to the fullest extent permitted by
Delaware law.
Article XI of our bylaws provide that we shall indemnify, to the
fullest extent permitted by Delaware law, any and all of our directors and
officers, or former directors and officers, or any person who may have served
at our request as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise.
We have entered into Indemnity Agreements with each of our directors
and officers, a form of which was filed as Exhibit 10.6 to our previous
Registration Statement on Form SB-2 (File No. 333-78337) declared effective by
the Securities and Exchange Commission on July 28, 1999. Under these
agreements, we will be obligated, to the extent permitted by Delaware Law, to
indemnify such directors and officers against all expenses, judgments, fines
and penalties incurred in connection with the defense or settlement of any
actions brought against them by reason of the fact that they served as
directors or officers or assumed certain responsibilities at our direction. We
have purchased directors and officers liability insurance in order to limit
our exposure to liability for indemnification of directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers or
persons controlling our company pursuant to the foregoing provisions, we have
been informed that in the opinion of the Securities and Exchange 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 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Perficient, Inc. 1999 Stock Option/Stock Issuance Plan, as
amended
4.2 The Company's Certificate of Incorporation, in effect as of the
date of this Registration Statement (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form
SB-2 (File No. 333-78337), declared effective on July 28, 1999 by
the Securities and Exchange Commission).
4.3 By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement on Form SB-2 (File
No. 333-78337), declared effective on July 28, 1999 by the
Securities and Exchange Commission).
4.4 Form of Stock Option Agreement for Officers, Employees,
Consultants, and Advisors.
5.1 Opinion of Gibbons, Del Deo, Dolan, Griffinger & Vecchione.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Gibbons, Del Deo, Dolan, Griffinger & Vecchione
(included in Exhibit 5.1)
24.1 Power of Attorney (included as part of signature page)
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes to:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3)
of the Securities Act of 1933, as amended;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental change in the
information 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 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 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement;
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(iii) Include any additional or changed material
information on the plan of distribution.
Provided, however, that paragraphs (1)(i) and (1)(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 the Commission
by the Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in this
registration statement.
(2) For determining liability under the Securities Act, treat
each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering;
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company 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 Austin, State of Texas, on this 28th
day of July, 2000.
PERFICIENT, INC.
By: /s/ John T. McDonald
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John T. McDonald
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints John T. McDonald {why
Bryan?}, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution for him 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 sign any
registration statement for the same offering covered by this registration
statement that is to be effective upon filing pursuant to Rule 462(b)
promulgated under the Securities Act of 1933, as amended, and all
post-effective amendments thereto, 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 full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN ACCORDANCE WITH 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 STATED.
SIGNATURE TITLE DATE
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/s/ Steven G. Papermaster Chairman of the Board July 28, 2000
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Steven G. Papermaster
/s/ John T. McDonald Chief Executive Officer and July 28, 2000
- -------------------------- and Director
John T. McDonald (principal executive officer)
/s/ Sam J. Fatigato Chief Operating Officer and July 28, 2000
- -------------------------- Director
Sam J. Fatigato
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/s/ John A. Hinners Chief Financial Officer and July 28, 2000
- -------------------------- Secretary
John A. Hinners (principal financial and
accounting officer)
/s/ David S. Lundeen Director July 28, 2000
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David S. Lundeen
/s/ Dr. W. Frank King Director July 28, 2000
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Dr. W. Frank King
/s/ Philip J. Rosenbaum Director July 28, 2000
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Philip J. Rosenbaum
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EXHIBIT INDEX
NO. DESCRIPTION METHOD OF FILING
4.1 Perficient, Inc. 1999 Stock Filed with this registration statement.
Option/Stock Issuance Plan, as
Amended
4.2 Certificate of Incorporation Filed by reference to Exhibit 3.1 to
the Company's Registration
Statement on Form SB-2 (File No.
333-78337), declared effective on
July 28, 1999 by the Securities and
Exchange Commission.
4.3 By-Laws Filed by reference to Exhibit 3.2 to
the Company's Registration
Statement on Form SB-2 (File No.
333-78337), declared effective on
July 28, 1999 by the Securities and
Exchange Commission.
4.4 Form of Stock Option Agreement Filed with this Registration Statement
for Officers, Consultants and
Advisors
5.1 Opinion of Gibbons, Del Deo, Filed with this Registration Statement
Dolan, Griffinger & Vecchione
23.1 Consent of Ernst & Young LLP Filed with this Registration Statement
23.3 Consent of Gibbons, Del Deo, Included in Exhibit 5.1
Dolan, Griffinger & Vecchione
23.4 Power of Attorney Included on signature page of this
Registration Statement