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As filed with the Securities and Exchange Commission on August 30, 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
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
7600-B NORTH CAPITAL OF TEXAS HIGHWAY 78731
SUITE 340, AUSTIN, TEXAS -----
---------------------------------------- (Zip Code)
(Address of principal executive offices)
PERFICIENT, INC. 401(k) EMPLOYEE SAVINGS PLAN
---------------------------------------------
(Full title of the plan)
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 MAXIMUM
TITLE OF EACH CLASS AMOUNT MAXIMUM OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1)(2) PER SHARE(2) PRICE(2) FEE(2)
------------------------------------------ ---------------- -------------------- ----------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share 100,000 $12.625 $1,262,500 $333.30
------------------------------------------ ---------------- -------------------- ----------------- -------------------
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(1) The number of shares of Common Stock which will actually be issued
under the employee benefit plan cannot be determined at this time, as the number
of shares of Common Stock purchased by the Plan Administrator pursuant to the
plan will depend on the amount of contributions to be used to purchase shares of
the Registrant's Common Stock in the open market at the prevailing market
prices.
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(2) 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 as well as an
indeterminate amount of interests to be offered or sold pursuant to the employee
benefit plan described herein. In accordance with Rule 457(h)(2), no separate
fee calculation is made for plan interests.
(3) Estimated in accordance with Rule 457(c) solely for the purposes of
calculating the registration fee, based on $12.625 per share, the closing price
per share of the Registrant's Common Stock as reported on The Nasdaq SmallCap
Market System on August 25, 2000.
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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, Quarterly Report on Form 10-QSB (File
No. 001-15169) filed May 15, 2000 under the Exchange Act and
Quarterly Report on Form 10-QSB (File No. 001-15169) filed
August 14, 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 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.
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Exhibit No. Description
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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 Flexible Nonstandardized Safe Harbor 401(k) Profit Sharing Plan
Adoption Agreement
4.5 Qualified Retirement Plan - Basic Plan Document
23.1 Consent of Ernst & Young LLP
24.1 Power of Attorney (included as part of signature page)
99.1 The Company undertakes to submit the plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to
qualify the plan.
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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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<PAGE>
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 18th day of
August, 2000.
PERFICIENT, INC.
By: /s/ John T. McDonald
---------------------------------------------
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 and John A.
Hinners, 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, AS
AMENDED THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES STATED.
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Signature Title Date
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<S> <C> <C>
/s/ Steven G. Papermaster
----------------------------------- Chairman of the Board August 18, 2000
Steven G. Papermaster
/s/ John T. McDonald
----------------------------------- Chief Executive Officer and August 18, 2000
John T. McDonald and Director
(principal executive officer)
/s/ Sam J. Fatigato
----------------------------------- Chief Operating Officer and August 18, 2000
Sam J. Fatigato Director
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<PAGE>
/s/ John A. Hinners
----------------------------------- Chief Financial Officer and August 18, 2000
John A. Hinners Secretary
(principal financial and
accounting officer)
/s/ David S. Lundeen
----------------------------------- Director August 18, 2000
David S. Lundeen
/s/ Dr. W. Frank King
----------------------------------- Director August 21, 2000
Dr. W. Frank King
/s/ Philip J. Rosenbaum
----------------------------------- Director August 19, 2000
Philip J. Rosenbaum
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<TABLE>
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EXHIBIT INDEX
NO. DESCRIPTION METHOD OF FILING
<S> <C> <C>
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 Flexible Nonstandardized Safe Harbor Filed with this Registration Statement
401(k) Profit Sharing Plan Adoption
Agreement
4.5 Qualified Retirement Plan - Basic Plan Filed with this Registration Statement
Document
23.1 Consent of Ernst & Young LLP Filed with this Registration Statement
24.1 Power of Attorney Included on signature page of this
Registration Statement
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