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As filed with the Securities and Exchange Commission on February 15, 2000
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)
DELAWARE 7372 41-1844584
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or) Classification Code Number) Identification No.)
organization
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)
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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 1,501,285 N/A N/A N/A
Common Stock (par value $.001) 1,501,285 shares $54.3125(2) $81,538,541.56(2) $21,526.1750
Employee Stock Purchase Plan
- ---------------------------------
Rights to Purchase 940,514 N/A N/A N/A
Common Stock (par value $.001) 940,514 shares $54.3125(2) $51,081,666.63(2) $13,485.5600
1999 Non-Employee Director Option
Plan
- ----------------------------------
Options 250,000 N/A N/A N/A
Common Stock (par value $0.001) 250,000 shares $54.3125(2) $13,578,125.00(2) $3,584.6250
</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 average of
the high and low prices per share of Common Stock of Net Perceptions,
Inc. on February 11, 2000.
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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;
(b) The Registrant's Quarterly Report on Form 10-Q filed with the
SEC for the fiscal quarter ended September 30, 1999;
(c) The Registrant's Quarterly Report on Form 10-Q filed with the
SEC for the fiscal quarter ended June 30, 1999;
(d) The Registrant's Quarterly Report on Form 10-Q filed with the
SEC for the fiscal quarter ended March 31, 1999; and
(e) 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
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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 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 and the 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.
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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 14th day of February, 2000.
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Steven J. Snyder
- ---------------------- President, Chief Executive Officer and Director February 14, 2000
Steven J. Snyder (Principal Executive Officer)
/s/ Thomas M. Donnelly
- ---------------------- Chief Financial Officer (Principal Financial and February 14, 2000
Thomas M. Donnelly Accounting Officer) and Secretary
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Signature Title Date
- --------- ----- ----
/s/ John T. Riedl
- ------------------------
John T. Riedl Director February 14, 2000
/s/ Ann L. Winblad
- ------------------------
Ann L. Winblad Director February 14, 2000
/s/ Douglas J. Burgum
- ------------------------
Douglas J. Burgum Director February 14, 2000
/s/ Will Lansing
- ------------------------
Will Lansing Director February 14, 2000
</TABLE>
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EXHIBIT INDEX
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.
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EXHIBIT 5
February 14, 2000
Net Perceptions, Inc.
7901 Flying Cloud Drive
Minneapolis, Minnesota 55344
Re: Net Perceptions, Inc. (the "Company")
Registration Statement for
an aggregate of 2,691,799 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) 1,501,285
shares of Common Stock available for issuance under the Company's 1999 Equity
Incentive Plan, (ii) 940,514 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,
/s/ Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
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
February 11, 2000 -------------------------------
PricewaterhouseCoopers LLP
