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As filed with the Securities and Exchange Commission on October 20, 2000
Registration No. 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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APERIAN, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-291167
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1121 EAST 7TH STREET
AUSTIN, TEXAS 78702
(Address of principal executive offices, including zip code)
APERIAN, INC. 2000 STOCK INCENTIVE PLAN
(Full Title of Plans)
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Robert J. Gibbs
President and Chief Executive Officer
1121 East 7th Street
Austin, Texas 78702
(512) 476-6925
(Name and address, including zip code, and telephone number, including
area code, of registrant's agent for service)
COPIES TO:
Peter E. Lorenzen Jeffrey A. Chapman
Aperian, Inc. Vinson & Elkins L.L.P.
14131 Midway Road, Suite 800 3700 Trammell Crow Center
Addison, Texas 75001 2001 Ross Avenue
(972) 851-3519 Dallas, Texas 75201-2975
(214) 220-7797
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE PRICE(1)(2)
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 666,667 shares (2) $ 9,775,847 $ 2,580.82
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</TABLE>
(1) Consists of shares of Common Stock that may be issuable under the
Registrant's 2000 Stock Option Plan described herein. Pursuant to Rule
416(c) under the Securities Act, shares issuable upon any stock split,
stock dividend or similar transaction with respect to the shares
registered under the Plans are also being registered hereunder.
(2) Estimated solely for calculating the registration fee pursuant to Rule
457(h), based on an average exercise price of $18.95 per share (as to
475,130 shares for which the exercise price has been determined),
plus the average of the high and low prices for the Common Stock on
October 18, 2000 as reported on the Nasdaq National Market (as to
191,537 shares for which the exercise price is not known).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information called for in Part I of Form
S-8 will be provided to participants in the 2000 Stock Incentive Plan of
Aperian, Inc. (the "Company" or the "Registrant") with respect to which this
Registration Statement on Form S-8 (this "Registration Statement") relates. Such
information is not being filed with or included in this Registration Statement
in accordance with the rules and regulations of the Securities Act of 1933 (the
"Securities Act") and the Securities and Exchange Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Incorporated by reference are the documents listed below and any future
filings the Registrant makes with the Commission under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") 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:
o The Registrant's Annual Report on Form 10-KSB for the year
ended March 31, 2000, as amended by Form 10-KSB/A, filed
with the SEC on July 28, 2000;
o Current report on Form 8-K, filed with the SEC on August 3,
2000;
o Current report on Form 8-K, filed with the SEC on August 9,
2000;
o Quarterly report on Form 10-QSB for the quarter ended June 30,
2000, filed with the SEC on August 14, 2000;
o Current report on Form 8-K, filed with the SEC on
September 11, 2000;
o All other reports filed by the Registrant with the Commission
in compliance with Sections 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year ended March 31, 2000; and
o The description of the Registrant's common stock contained in
the Registrant's Registration Statement on Form 8A, filed with
the Commission on October 10, 2000 (File Number 0-8146).
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our amended and restated articles of incorporation state that we may
indemnify each of our directors, officers, employees, or agents to the full
extent permitted by the laws of the State of Delaware. Our amended and restated
articles of incorporation will provide that directors are not liable to us or
our stockholders for monetary damages for breach of fiduciary duty, except for:
o any breach of a director's duty of loyalty to Aperian or its
stockholders;
o acts or omissions that are not in good faith or that involve
intentional misconduct or knowing violation of the law;
o unlawful payment of dividends or unlawful stock purchases or
redemptions under Section 174 of the Delaware General
Corporation Law; and
o any transaction in which the director derived an improper
personal benefit.
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We are putting into place indemnification agreements with our directors
and intend to enter into indemnification agreements with any new directors in
the future.
We may also purchase and maintain insurance to provide indemnification.
Though indemnification for liabilities arising under the Securities Act
may be permitted to members of the board of directors, officers, employees, or
person controlling us under the provisions outlined above, we have been advised
that in the opinion of the Securities and Exchange Commission indemnification
for liabilities arising under the Securities Act is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
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ITEM 8. EXHIBITS.
4.1 Aperian, Inc. 2000 Stock Option Plan*
5.1 Opinion of Peter E. Lorenzen, General Counsel*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Peter E. Lorenzen (included as part of Exhibit 5.1)
24 Power of Attorney (set forth on the signature pages of the
registration statement)
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities 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;
(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 the undertakings set forth in paragraphs
(a)(1)(i) and (a)(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 by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities 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.
(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 offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at the 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
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Austin, State of Texas, on the 17 day of October,
2000.
APERIAN, INC.
(Registrant)
By: /s/ ROBERT J. GIBBS
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Robert J. Gibbs, President and
Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints Robert J. Gibbs, Douglas W. Banister and Peter E. Lorenzen, and each of
them (with full power in each of them to act alone), his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign and to file with the Commission, any and all
amendments, exhibits, certificates, and other documents in connection therewith,
in connection with the registration under the Securities Act, of shares of
Common Stock issuable pursuant to the Plan, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, 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 either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
and on the date indicated below in the City of Austin, State of Texas.
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Name Title Date
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<S> <C> <C>
/s/ ROBERT J. GIBBS President, Chief Executive October 17, 2000
------------------------------------ Officer and Director
Robert J. Gibbs
/s/ DOUGLAS W. BANISTER Chief Financial Officer and October 17, 2000
------------------------------------ Vice President of Finance
Douglas W. Banister
Director
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Jack C. Baum
/s/ CHRISTOPHER BRICKLER Director October 17, 2000
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Christopher Brickler
Director
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Donald H. Brush, Ph.D.
Director
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Daniel S. Dornier
/s/ STEPHEN J. METZGER Director October 17, 2000
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Stephen J. Metzger
/s/ HUMBERT B. POWELL, III. Director October 17, 2000
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Humbert B. Powell, III
/s/ DAVINDER SETHI Director October 17, 2000
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Davinder Sethi
/s/ RAYMOND WICKI Director October 17, 2000
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Raymond Wicki
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Aperian, Inc. 2000 Stock Incentive Plan*
5.1 Opinion of Peter E. Lorenzen, General Counsel*
23.1 Consent of Ernst & Young LLP*
23.2 Consent of Peter E. Lorenzen (included as part of
Exhibit 5.1)
24 Power of Attorney (set forth on the signature page of
the registration statement)
</TABLE>
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* Filed herewith.
