PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
Perficient,
Inc. (the “Registrant”) will send or give to all participants in the Perficient,
Inc. 1999 Stock Option/Stock Issuance Plan and the Perficient, Inc. Employee
Stock Purchase Plan the document(s) containing information specified by Part
I
of this Form S-8 Registration Statement (the “Registration Statement”), as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933 (the “Securities
Act”). The Registrant has not filed such document(s) with the Commission, but
such documents (along with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II hereof) shall constitute
a
prospectus that meets the requirements of Section 10(a) of the Securities
Act.
With
respect to the 1999 Stock Option/Stock Issuance Plan, this Registration
Statement is being filed, in accordance with General Instruction E to Form
S-8,
to register the offer and sale of shares of Common Stock that may be issued
under the 1999 Stock Option/Stock Issuance Plan. The contents of the
Registrant’s Form S-8 Registration Statement filed on July 31, 2000 (File No.
333-42626), as amended on December 21, 2001 (File No. 333-75666) and September
7, 2004 (File No. 333-118839) relating to the 1999 Stock Option/Stock Issuance
Plan are hereby incorporated by reference to this Registration
Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement
the following documents:
(a)
The
Registrant’s Annual Report on Form 10-KSB (File No. 001-15169), filed with the
Commission on March 31, 2005, for the fiscal year ended December 31, 2004.
(b)
All
other
reports filed by the Registrant since December 31, 2004 with the Commission
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the
“Exchange Act”), including, but not limited to, the Company’s Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31, 2005, June 30,
2005 and September 30, 2005.
(c)
The
description of the Registrant’s Common Stock, par value $0.001 per share,
contained in Item 1 of the Registrant’s Registration Statement on Form 8-A filed
on February 15, 2005, pursuant to Section 12 of the Exchange
Act.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall also be deemed to be
incorporated by reference herein and to be a part hereof from the dates of
filing of such documents. Any statement contained in a document incorporated
or
deemed to be incorporated by reference herein shall be deemed to be modified
or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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 (“DGCL”) empowers a Delaware
corporation to indemnify its current or former directors and officers, as well
as other current or former employees and individuals, against expenses,
including attorneys’ fees, judgments, fines and amounts paid in settlement
actually or reasonably incurred in connection with specified actions, suits
or
proceedings, whether civil, criminal, administrative or investigative, other
than actions by or in the right of such corporation. The director or officer
must have acted in good faith and in a manner he or she reasonably believed
to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
or
her conduct was unlawful. A Delaware corporation is similarly empowered by
the
DGCL, subject to the same limitation described in the previous sentence, with
respect to actions by or in the right of the corporation, except that
indemnification only extends to expenses, including attorneys’ fees, incurred in
connection with the defense or settlement of such actions, and court approval
is
required to indemnify an individual adjudged to be liable to the corporation.
Where directors and officers are successful on the merits or otherwise in the
defense of such actions, or in the defense of any claim, issue or matter
therein, the corporation is required to indemnify them against the expenses,
including attorneys’ fees, actually and reasonably incurred in connection with
the defense. The DGCL permits a corporation to advance expenses, including
attorneys’ fees, incurred by a director or officer in defending such actions,
provided that the director or officer undertakes to repay the advanced amount
if
it is ultimately determined that the director or officer is not entitled to
be
indemnified by the corporation. The statutory indemnification provided under
Section 145 of the DGCL is not exclusive of other indemnification that may
be
granted by a corporation’s charter, bylaws, disinterested director vote,
stockholder vote, agreement or otherwise.
The
Registrant’s certificate of incorporation provides, as permitted by the DGCL,
that the Registrant’s directors shall have no personal liability to the
Registrant or its stockholders for monetary damages for breach of fiduciary
duty
as a director, except: (1) for any breach of the director’s duty of loyalty to
the Registrant or its stockholders; (2) for acts or omissions not in good faith
or that involve intentional misconduct or knowing violation of law; (3) under
Section 174 of the DGCL; or (4) for any transaction from which a director
derived an improper personal benefit.
The
Registrant’s bylaws provide that the Registrant shall indemnify, to the fullest
extent permitted by DGCL, any and all of its directors and officers, or former
directors and officers, or any person who may have served at the Registrant’s
request as an employee or other agent. However, indemnification of a present
director or officer in a specific case initiated by such director or officer
is
not required unless: (1) such indemnification is expressly required to be made
by law; (2) the proceeding was authorized by the Board of Directors of the
Registrant; or (3) such indemnification is provide by the Registrant, in its
sole discretion, pursuant to the powers vested in the Registrant under DGCL.
The
Registrant has entered into Indemnity Agreements with each of its directors
and
officers, under which the Registrant will be obligated, to the extent permitted
by DGCL, 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 the
Registrant’s direction. As permitted by the DGCL and in accordance with the
Indemnity Agreements, the Registrant has purchased and maintains directors
and
officers liability insurance.
Item
7.
Exemption
from Registration Claimed.
Not
applicable.
Item
8.
Exhibits.
Unless
otherwise indicated below as being incorporated by reference to another filing
of the Registrant with the Commission, each of the following exhibits is filed
herewith:
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Exhibit
Number
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Description
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4.1
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Specimen
Certificate for shares of common stock, previously filed with the
Commission as Exhibit 4.1 to the Registrant’s Form SB-2 (File No.
333-78337) declared effective on July 28, 1999 by the Commission
and
incorporated herein by reference.
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4.2
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Certificate
of Incorporation of Perficient, Inc., previously filed with the Commission
as Exhibit 3.1 to the Registrant’s Form SB-2 (File No. 333-78337) declared
effective on July 28, 1999 by the Commission and incorporated herein
by
reference.
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4.3
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Certificate
of Amendment to Certificate of Incorporation of Perficient, Inc.,
previously filed with the Commission as Exhibit 2.2 to the Registrant’s
Form 8-A (File No. 000-51167) filed with the Commission pursuant
to
Section 12(g) of the Exchange Act on February 15, 2005 and incorporated
herein by reference.
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4.4
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Certificate
of Amendment to Certificate of Incorporation of Perficient, Inc.,
effective November 22, 2005.
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4.5
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Bylaws
of Perficient, Inc., previously filed with the Commission as Exhibit
3.2
of Registrant’s Form SB-2 (File No. 333-78337) declared effective on July
28, 1999 by the Commission and incorporated herein by reference.
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4.6
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Perficient,
Inc. 1999 Stock Option/Stock Issuance Plan, as amended and restated
effective August 1
st
,
2005, previously filed with the Commission as Exhibit 10.1 to the
Registrant’s Form 10-Q on November 14, 2005 and incorporated herein by
reference.
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4.7
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Perficient,
Inc. Employee Stock Purchase Plan, previously filed with the Commission
as
Appendix A to the Registrant’s Schedule 14A (File No. 001-15169) on
October 13, 2005 and incorporated herein by reference.
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5.1
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Opinion
of Vinson & Elkins LLP
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23.1
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Consent
of Ernst & Young LLP
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23.2
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Consent
of BDO Seidman, LLP
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23.3
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Consent
of BKD, LLP
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23.4
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Consent
of Vinson & Elkins LLP (included in the opinion as Exhibit 5.1
hereto)
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24.1
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Powers
of Attorney (included in the signature pages
hereto)
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Item
9.
Undertakings.
(a)
The
undersigned Registrant hereby undertakes:
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1.
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To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this Registration
Statement:
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(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 the 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 the Registration Statement;
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
provided,
however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) 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 the 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 that time shall be deemed to be the initial bona fide offering
thereof.
(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.
SIGNATURES
Pursuant
to 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 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 December 22nd, 2005.
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PERFICIENT,
INC.
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By:
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/s/ John
T. McDonald
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John
T. McDonald
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Chief
Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated. Each person whose signature appears below authorizes and appoints
each of John T. McDonald and Michael D. Hill, and each of them severally, acting
alone and without the other, as his attorney-in-fact to execute in the name
of
such person and to file any amendments to this Registration Statement necessary
or advisable to enable the Registrant to comply with the Securities Act of
1933
and any rules, regulations and requirements of the registration of the
securities which are the subject of this Registration Statement, which
amendments may make such changes in the Registration Statement as such
attorney-in-fact may deem appropriate.
Signature
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Title
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Date
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/s/
John T. McDonald
John
T. McDonald
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Chief
Executive Officer and
Chairman
of the Board
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/s/
Michael D. Hill
Michael
D. Hill
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Chief
Financial Officer
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December
22, 2005
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/s/
Ralph C. Derrickson
Ralph
C. Derrickson
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Director
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December
22, 2005
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/s/
Max D. Hopper
Max
D. Hopper
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Director
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December
22, 2005
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/s/
Kenneth R. Johnsen
Kenneth
R. Johnsen
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Director
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December
22, 2005
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/s/
David S. Lundeen
David
S. Lundeen
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Director
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December
22, 2005
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