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As filed with the Securities and Exchange Commission on April 28, 1999
Registration No. 333-______
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UNITED STATES
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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NET PERCEPTIONS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
DELAWARE 7372 41-1844584
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
7901 FLYING CLOUD DRIVE
MINNEAPOLIS, MINNESOTA 55344
(612) 903-9424
(Address of principal executive offices) (Zip Code)
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NET PERCEPTIONS, INC. 1999 EQUITY
INCENTIVE PLAN
NET PERCEPTIONS, INC. EMPLOYEE STOCK
PURCHASE PLAN
NET PERCEPTIONS, INC. 1999 NON-EMPLOYEE
DIRECTOR OPTION PLAN
(Full title of the Plans)
-------------------
STEVEN J. SNYDER
PRESIDENT, CHIEF EXECUTIVE OFFICER
NET PERCEPTIONS, INC.
7901 FLYING CLOUD DRIVE
MINNEAPOLIS, MINNESOTA 55344
(Name and address of agent for service)
(612) 903-9424
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share Price (2) Fee
---------- ---------- --------- ----- ---
<S> <C> <C> <C> <C>
1999 EQUITY INCENTIVE PLAN
Options N/A N/A N/A
Common Stock (par value $.001) 3,103,952 SHARES $14.00 (2) $43,455,328 (2) $12,081
EMPLOYEE STOCK PURCHASE PLAN
Rights to Purchase 500,000 N/A N/A N/A
Common Stock (par value $.001) 500,000 SHARES $14.00 (2) $7,000,000 (2) $ 1,946
1999 Non-Employee Director Option Plan
Options 250,000 N/A N/A N/A
Common Stock (par value $.001) 250,000 SHARES $14.00 (2) $3,500,000 (2) $ 973
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Equity Incentive
Plan, the Employee Stock Purchase Plan, and the 1999 Non-Employee
Director Option Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of Net Perceptions, Inc.
(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 fair market
value per share of Common Stock of Net Perceptions, Inc. on April 22,
1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Net Perceptions, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's prospectus filed with the SEC pursuant to
Rule 424(b) of the Securities Act of 1933, as amended (the
"1933 Act"), in connection with the Registration Statement No.
333-71919 on Form S-1 filed with the SEC on February 5, 1999,
together with any and all amendments thereto, in which there
is set forth audited financial statements for the Registrant's
fiscal year beginning July 3, 1996 through December 31, 1996
and the Fiscal years ended December 31, 1997 and 1998; and
(b) The Registrant's Registration Statement No. 000-25781 on
Form 8-A filed with the SEC on April 15, 1999, together with
all amendments thereto, pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "34 Act") in
which there is described 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 deregisters 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
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court
to award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the 1933 Act. Article VII,
Section 6, of the Registrant's Bylaws provides for mandatory indemnification of
its directors and officers and permissible indemnification of employees and
other agents to the maximum extent permitted by the Delaware General Corporation
Law. The Registrant's Certificate of Incorporation provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages for breach
of their fiduciary duty as directors to the Registrant and its stockholders.
This provision in the Certificate of Incorporation does not eliminate the
fiduciary duty of the directors, and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant for acts or omissions 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 unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
The Registrant has entered into Indemnification Agreements with its officers and
directors. The Indemnification Agreements provide the
II-1
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Registrant's officers and directors with further indemnification to the
maximum extent permitted by the Delaware General Corporation Law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
Exhibit Number Exhibit
- -------------- -------
4 Instrument Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 000-25781 on
Form 8-A, together with all amendments thereto, which is
incorporated herein by reference pursuant to Item 3(d) of this
Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
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 paragraphs is contained in
periodic reports filed with or furnished to the SEC by the Registrant
pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated
by reference in 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
Registrant's 1999 Equity Incentive Plan, Employee Stock Purchase Plan, and
the 1999 Non- Employee Director Option 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 in 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 SEC, 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.
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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 Minneapolis, State of
Minnesota on this 26th day of April, 1999.
NET PERCEPTIONS, INC.
By: /s/ Steven J. Snyder
-------------------------------------
Steven J. Snyder
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Net Perceptions,
Inc., a Delaware corporation, do hereby constitute and appoint Steven J.
Snyder and Thomas M. Donnelly, and either of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys
and agents, and either 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 all that
said attorneys and agents, or either one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power
of Attorney as of the date indicated.
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 and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Steven J. Snyder President, Chief Executive Officer and Director April 26, 1999
- ------------------------------ (Principal Executive Officer)
Steven J. Snyder
/s/ Thomas M. Donnelly Chief Financial Officer (Principal Financial and April 26, 1999
- ------------------------------ Accounting Officer) and Secretary
Thomas M. Donnelly
Director
- ------------------------------
John T. Riedl
/s/ Ann L. Winblad Director April 26, 1999
- ------------------------------
Ann L. Winblad
/s/ Douglas J. Burgum Director April 26, 1999
- ------------------------------
Douglas J. Burgum
</TABLE>
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EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 000-25781 on Form
8-A, together with all amendments thereto, which is
incorporated herein by reference pursuant to Item 3(d) of this
Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
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EXHIBIT 5
April 26, 1999
Net Perceptions, Inc.
7901 Flying Cloud Drive
Minneapolis, Minnesota 55344
Re: Net Perceptions, Inc. (the "Company")
Registration Statement for
an aggregate of 3,853,952 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 3,103,952
shares of Common Stock available for issuance under the Company's 1999 Equity
Incentive Plan, (ii) 500,000 shares of Common Stock available for issuance
under the Company's Employee Stock Purchase Plan and (iii) 250,000 shares of
Common Stock available for issuance under the Company's 1999 Non-Employee
Director Option Plan. We advise you that, in our opinion, when such shares
have been issued and sold pursuant to the applicable provisions of the 1999
Equity Incentive Plan, the Employee Stock Purchase Plan, and the 1999
Non-Employee Director Option Plan and in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of Net Perceptions, Inc.'s Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated February 4, 1999, except as to Note 10 which
is as of March 22, 1999, which appears on page F-2 of the Company's Form S-1
(No. 333-71919), as amended.
Minneapolis, Minnesota /s/ PricewaterhouseCoopers LLP
April 27, 1999 ------------------------------
PricewaterhouseCoopers LLP
