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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 1999
REGISTRATION NO. 333-78337
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PERFICIENT, INC.
(Name of Small Business Issuer in Its Charter)
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DELAWARE 7371 74-2853258
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification Number)
incorporation or organization) Classification Code Number)
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7600-B NORTH CAPITAL OF TEXAS HIGHWAY, SUITE 220
AUSTIN, TEXAS 78731
(512) 306-7337
(Address and telephone number of principal executive offices and principal place
of business)
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JOHN T. MCDONALD
CHIEF EXECUTIVE OFFICER
PERFICIENT, INC.
7600-B NORTH CAPITAL OF TEXAS HIGHWAY, SUITE 220
AUSTIN, TEXAS 78731
(512) 306-7337
(Name, address and telephone number of agent for service)
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COPIES TO:
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J. MATTHEW LYONS JEFFREY A. BAUMEL
PHILIP W. RUSSELL GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE
BROBECK, PHLEGER & HARRISON LLP A PROFESSIONAL CORPORATION
301 CONGRESS AVENUE, SUITE 1200 125 WEST 55TH STREET
AUSTIN, TEXAS 78701 NEW YORK, NEW YORK 10019-5368
PHONE: (512) 477-5495 PHONE: (212) 649-4700
FACSIMILE: (512) 477-5813 FACSIMILE: (212) 333-5980
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General 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 Registrant's 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 attorneys' 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 Registrant's 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 Registrant, 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 Registrant's certificate of incorporation provides that no
director shall be liable to Registrant or Registrant's stockholders for monetary
damages for breach of fiduciary duty as a director to the fullest extent
permitted by Delaware law.
Article XI of Registrant's bylaws provide that Registrant 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 Registrant's request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise.
Reference is made to Section 7(b) of the Underwriting Agreement filed as
Exhibit 1.1 hereto, pursuant to which the Underwriters have agreed to indemnify
officers and directors of Registrant against certain liabilities under the
Securities Act.
Registrant has entered into Indemnity Agreements with each of its directors
and officers, a form of which is filed as Exhibit 10.6 to this Registration
Statement. Under these agreements, Registrant 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
Registrant's direction. Registrant has purchased directors and officers
liability insurance in order to limit its exposure to liability for
indemnification of directors and officers.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than the
underwriting discount, payable by the registrant in connection with the sale of
common stock being registered. All amounts
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are estimates except the SEC registration fee, the NASD filing fee, the Nasdaq
SmallCap Market listing fee and the Boston Stock Exchange listing fee.
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SEC registration fee.............................................. $ 2,824
NASD fee.......................................................... 1,516
Nasdaq SmallCap Market listing fee................................ 8,500
Boston Stock Exchange listing fee................................. 7,500
Non-accountable expenses fee to be paid to Underwriters'
Representative.................................................. 258,750
Printing and engraving expenses................................... 85,000
Legal fees and expenses........................................... 225,000
Accounting fees and expenses...................................... 100,000
Blue sky fees and expenses........................................ 45,000
Transfer agent fees............................................... 1,500
Miscellaneous..................................................... 64,410
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Total............................................................. $ 800,000
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* To be included by amendment.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
Within the last three years, Registrant made the following sales of its
common stock in transactions that were not registered under the Securities Act
of 1933:
(1) On September 17, 1997, Registrant sold 1,000,000 shares to Mr.
Menell for $50,000.
(2) On April 15, 1998, Registrant sold an aggregate of 340,000 shares to
Powershift Ventures, LLC and Mr. Lundeen for an aggregate purchase price of
$34,000.
(3) On June 10, 1998, Registrant sold an aggregate of 330,000 shares to
Powershift Ventures, LLC and Mr. Lundeen for an aggregate purchase price of
$33,000.
(4) On July 15, 1998, Registrant sold an aggregate of 330,000 shares to
Powershift Ventures, LLC and Mr. Lundeen for an aggregate purchase price of
$33,000.
(5) On January 12, 1999, Registrant sold an aggregate of 500,000 shares
to Beekman Ventures, Inc.; Thomas H. Walker; Mr. Hinners; David May; Sanford
Prater; and Mr. Lundeen, respectively, for an aggregate purchase price of
$250,000.
These sales were conducted in reliance upon exemptions from registration
under Section 4(2) of the Securities Act of 1933, as transactions not involving
a public offering.
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ITEM 27. EXHIBITS.
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1.1+ Form of Underwriting Agreement.
3.1+ Certificate of Incorporation of Registrant.
3.2+ Bylaws of Registrant.
4.1+ Specimen Certificate for shares of common stock.
4.2+ Representative's Warrant
5.1+ Opinion of Brobeck, Phleger & Harrison LLP
10.1+ Sublease Agreement, dated April 1, 1999, between Registrant, as Lessee, and
Powershift Ventures, LLC, as Lessor.
10.2+ 1999 Stock Option/Stock Issuance Plan.
10.3+ Employment Agreement between Registrant and John T. McDonald.
10.4+ Employment Agreement between Registrant and Bryan R. Menell.
10.5+ Employment Agreement between Registrant and John A. Hinners.
10.6+ Form of Indemnity Agreement between Registrant and its directors and officers.
10.7+ Contractor Service Agreement, dated December 31, 1998, between Registrant and
Vignette Corporation.
10.8+ Accounts Receivable Purchase Agreement, dated January 12, 1999, between the
Registrant and Silicon Valley Financial Services
10.9+ Accounts Receivable Purchase Modification Agreement, dated July 12, 1999, between
Registrant and Silicon Valley Bank
10.10+ Motive Communications, Inc. Consulting Services Subcontract Agreement dated February
27, 1999
10.11+ Subcontract Agreement, dated March 15, 1999, between Registrant and Ventix Systems,
Inc.
10.12+ Agreement for Subcontracting Services, dated April 23, 1999, between Registrant and
Interwoven, Inc.
23.1+ Consent of Ernst & Young, L.L.P.
23.2+ Consent of Brobeck, Phleger & Harrison LLP. Reference is made to Exhibit 5.1.
24.1+ Power of Attorney.
27.1+ Financial Data Schedule for the year ended December 31, 1998.
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+ Previously filed.
ITEM 28. UNDERTAKINGS.
The Registrant will provide to the underwriter at the closing specified in
the underwriting agreement, certificates in such denominations and registered in
such names as required by the underwriter to permit prompt delivery to each
purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has been advised 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 hereunder, 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 of 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.
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The Registrant will:
1. For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1), or (4), or
497(h) under the Securities Act as part of this registration statement as of
the time the Securities and Exchange Commission declared it effective.
2. For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of such securities at that time as the initial
BONA FIDE offering of those securities.
During any period during which a prospectus is required to be delivered with
respect to sales of shares under this Registration Statement, (i) if the
underwriter agrees to release more than 5% but less than 10% of the shares
subject to lock-up agreements (the "Lock-Up Shares") as referenced under
"Description of Securities--Lock-Up Agreement" in the Prospectus which
constitutes a part of this Registration Statement, then the Registrant will
prepare and file a supplement to this prospectus with respect to such fact; and
(ii) if the underwriter agrees to release 10% or more of the Lock-Up Shares,
then the Registration Statement will file a post-effective amendment with
respect to such fact.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of Austin,
state of Texas, on July 27, 1999.
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PERFICIENT, INC.
By: /s/ JOHN T. MCDONALD
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John T. McDonald
CHIEF EXECUTIVE OFFICER
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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.
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NAME TITLE DATE
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*
- ------------------------------ Chairman of the Board July 27, 1999
Steven G. Papermaster
Chief Executive Officer
/s/ JOHN T. MCDONALD and Director
- ------------------------------ (principal executive July 27, 1999
John T. McDonald officer)
*
- ------------------------------ President and Director July 27, 1999
Bryan R. Menell
Chief Financial Officer
* and Secretary
- ------------------------------ (principal financial and July 27, 1999
John A. Hinners accounting officer)
*
- ------------------------------ Director July 27, 1999
David S. Lundeen
*
- ------------------------------ Director July 27, 1999
Dr. W. Frank King
*
- ------------------------------ Director July 27, 1999
Philip J. Rosenbaum
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*By: /s/ JOHN T. MCDONALD
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John T. McDonald
ATTORNEY-IN-FACT
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