Approximate date of commencement of
proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box.
p
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
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. p
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.
p
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
p
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. p
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,”“accelerated filer,” and “smaller
reporting company” in Rule
12b-2 of the Exchange Act. (Check one):
Large
accelerated filer p
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filer
p Smaller
reporting company p
(Do not
check if a smaller reporting company)
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 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities, and it is not soliciting an offer to buy
these securities, in any jurisdiction where the offer or sale is not
permitted.
We may
offer and sell up to an aggregate of 4,250,000 shares of our common stock from
time to time in amounts, at prices and on terms that we will determine at the
times of the offerings.
We will
provide the specific terms of each offering of the securities in one or
more supplements to this prospectus. You should read this prospectus
and the related prospectus supplements carefully before you invest in our
securities. This prospectus may not be used to offer and sell our
securities unless accompanied by a prospectus supplement describing the method
and terms of the offering of those offered securities. We may sell
the securities directly, or we may distribute them through underwriters or
dealers. In addition, the underwriters may over allot a portion of
the common stock.
We had
previously registered 4,250,000 shares of our common stock, none of which were
sold, under a previous registration statement on Form S-3 (File No. 333-123177),
which registration was terminated with the effectiveness of the current
registration statement on Form S-3 (File No. 333-152274 ).
We
have previously registered the offer and sale from time to time of up to an
aggregate of 6,513,083 shares of our common stock for the account of certain of
our stockholders who acquired such shares in connection with prior
acquisitions.
Our
shares of common stock are listed on the Nasdaq National Market under the symbol
“PRFT.”
Investing
in our common stock involves risks. You should carefully consider the
risks described in the “Risk Factors” section beginning on page 2 of this
prospectus and under the “Risk Factors” in Item 1A of our most recent Annual
Report on Form 10-K and Item 1A of each subsequently filed Quarterly Report on
Form 10-Q (which documents are incorporated by reference herein), as well as the
other information contained or incorporated by reference in this prospectus or
in any supplement hereto before making a decision to invest in our
securities. See “Where You Can Find More Information.”
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The date
of this prospectus is
,
2008.
TABLE
OF CONTENTS
Page
About
This Prospectus
1
Our
Company
1
Risk
Factors
2
Forward-Looking
Statements
9
Use
of Proceeds
9
Plan
of Distribution
10
Legal
Matters
11
Experts
11
Where
You Can Find More Information
11
Incorporation
of Certain Information by Reference
12
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with additional
information or information different from that contained in this prospectus. We
are not making an offer to sell these securities in any jurisdiction where any
offer or sale is not permitted. You should assume that the information in this
prospectus is accurate only as of the date of this prospectus, regardless of the
time of delivery of this prospectus or of any sale of our common
stock.
i
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with
the Securities and Exchange Commission (“SEC”) utilizing a shelf registration
process. Under this shelf registration process, we may sell up to an
aggregate of 4,250,000 shares of our common stock in one or more
offerings. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of the
offering. This prospectus does not contain all of the information
included in the registration statement. The prospectus supplement may
also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus
supplement together with the additional information under the heading “Where You
Can Find More Information.”
You
should rely only on the information contained or incorporated by reference in
this prospectus and any prospectus supplement. We have not authorized
anyone to provide you with different information. We are not making
offers to sell or solicitations to buy the securities in any jurisdiction in
which an offer or solicitation is not authorized or in which the person making
that offer or solicitation is not qualified to do so or anyone to whom it is
unlawful to make an offer or solicitation.
You
should not assume that the information contained in this prospectus or the
prospectus supplement, as well as the information we previously filed with the
SEC that is incorporated by reference herein, is accurate as of any date other
than its respective date.
The
terms “Perficient,”“we,”“our” and “us” refer to Perficient, Inc. and its
subsidiaries unless the context suggests otherwise.
OUR
COMPANY
We are an
information technology consulting firm serving Forbes Global 2000 (“Global
2000”) and other large enterprise companies with a primary focus on the United
States. We help our clients gain competitive advantage by using Internet-based
technologies to make their businesses more responsive to market opportunities
and threats, strengthen relationships with their customers, suppliers and
partners, improve productivity and reduce information technology costs. We
design, build and deliver business-driven technology solutions using third party
software products developed by our partners. Our solutions include custom
applications, portals and collaboration, eCommerce, online customer management,
enterprise content management, business intelligence, business integration,
mobile technology, technology platform implementations and service oriented
architectures. Our solutions enable clients to meet the changing demands of an
increasingly global, Internet-driven and competitive marketplace.
Through
our experience in developing and delivering business-driven technology solutions
for a large number of Global 2000 clients, we have acquired significant domain
expertise that we believe differentiates our firm. We use expert project teams
that we believe deliver high-value, measurable results by working
collaboratively with clients and their partners through a user-centered,
technology-based and business-driven solutions methodology. We believe this
approach enhances return-on-investment for our clients by significantly reducing
the time and risk associated with designing and implementing business-driven
technology solutions.
We are
expanding through a combination of organic growth and acquisitions. We believe
that information technology consulting is a fragmented industry and that there
are a substantial number of privately held information technology consulting
firms in our target markets that, if acquired, can be strategically beneficial
and accretive to earnings over time. We have a track record of successfully
identifying, executing and integrating acquisitions that add strategic value to
our business. Since April 2004, we have acquired and integrated 12
information technology consulting firms, four of which were acquired in 2007. We
believe that we can achieve significantly faster growth in revenues and
profitability through a combination of organic growth and acquisitions than we
could through organic growth alone.
We
believe we have built one of the leading independent information technology
consulting firms in the United States. We serve our customers from our network
of 19 offices throughout North America. In addition, we have over 500
colleagues who are part of “national” business units, who travel extensively to
serve clients throughout North America and Europe. Our future growth plan
includes expanding our business with a primary focus on the United States,
both through expansion of our national travel practices and through opening
new offices, both organically and through acquisitions. In 2007, 2006 and 2005,
99% of our revenues were derived from clients in the United States while 1% of
our revenues were derived from clients in Canada and Europe. Over 98% of our
total assets were located in the United States in 2007 with the remainder
located in Canada, China, and India. During 2006, over 99% of our total assets
were located in the United States with the remainder located in
Canada.
We place
strong emphasis on building lasting relationships with clients. Over the past
three years ending December 31, 2007, an average of 78% of revenues was derived
from clients who continued to utilize our services from the prior year,
excluding from the calculation for any single period revenues from acquisitions
completed in that year. We have also built meaningful partnerships with software
providers, most notably IBM, whose products we use to design and implement
solutions for our clients. These partnerships enable us to reduce our cost of
sales and sales cycle times and increase success rates through leveraging our
partners' marketing efforts and endorsements.
1
RISK
FACTORS
You
should carefully consider the following risk factors together with the other
information contained in or incorporated by reference into this prospectus
before you decide to buy our common stock. If any of these risks actually occur,
our business, financial condition, operating results or cash flows could be
materially and adversely affected. This could cause the trading price of our
common stock to decline and you may lose part or all of your
investment.
Risks
Related to Our Business
Prolonged
economic weakness, particularly in the middleware, software and services market,
could adversely affect our business, financial condition and results of
operations.
Our
results of operations are affected by the levels of business activities of our
clients, which can be affected by economic conditions in the U.S. and
globally. During periods of economic downturns, our clients may
decrease their demand for information technology services. Our
business is particularly influenced by the market for middleware, software and
services which has changed rapidly and experienced volatility over the last
eight years. The market for middleware and software and services expanded
dramatically during 1999 and most of 2000, but declined significantly in 2001
and 2002. Market demand for software and services began to stabilize and improve
from 2003 through the first half of 2007. From the second half of 2007 through
the first half of 2008, it appears that the United States economy has begun to
experience a slowdown in growth. It is clear that the slowdown
will have an effect on the information technology consulting industry in general
and on demand for our services in particular, but the amount of that impact is
uncertain. Our future growth is dependent upon the demand for software and
services, and, in particular, the information technology consulting services we
provide. Demand and market acceptance for services are subject to a high level
of uncertainty. Prolonged weakness in the middleware, software and services
industry has caused in the past, and may cause in the future, business
enterprises to delay or cancel information technology projects, reduce their
overall information technology budgets and/or reduce or cancel orders for our
services. This, in turn, may lead to longer sales cycles, delays in purchase
decisions, payment and collection issues, and may also result in price
pressures, causing us to realize lower revenues and operating margins.
Additionally, if our clients cancel or delay their business and technology
initiatives or choose to move these initiatives in-house, our business,
financial condition and results of operations could be materially and adversely
affected.
Pursuing
and completing potential acquisitions could divert management's attention and
financial resources and may not produce the desired business
results.
If we
pursue any acquisition, our management could spend a significant amount of time
and financial resources to pursue and integrate the acquired business with our
existing business. To pay for an acquisition, we might use capital stock, cash
or a combination of both. Alternatively, we may borrow money from a bank or
other lender. If we use capital stock, our stockholders will experience
dilution. If we use cash or debt financing, our financial liquidity may be
reduced and the interest on any debt financing could adversely affect our
results of operations. From an accounting perspective, an acquisition that does
not perform as well as originally anticipated may involve amortization or the
write-off of significant amounts of intangible assets that could adversely
affect our results of operations.
Despite
the investment of these management and financial resources, and completion of
due diligence with respect to these efforts, an acquisition may not produce the
anticipated revenues, earnings or business synergies for a variety of reasons,
including:
§
difficulties
in the integration of services and personnel of the acquired
business;
§
the
failure of management and acquired services personnel to perform as
expected;
§
the
risks of entering markets in which we have no, or limited, prior
experience, including offshore operations in countries in which we have no
prior experience;
§
the
failure to identify or adequately assess any undisclosed or potential
liabilities or problems of the acquired business including legal
liabilities;
§
the
failure of the acquired business to achieve the forecasts we used to
determine the purchase price; or
§
the
potential loss of key personnel of the acquired
business.
These
difficulties could disrupt our ongoing business, distract our management and
colleagues, increase our expenses and materially and adversely affect our
results of operations.
2
If
we do not effectively manage our growth, our results of operations and cash
flows could be adversely affected.
Our
ability to operate profitably with positive cash flows depends partially on how
effectively we manage our growth. In order to create the additional capacity
necessary to accommodate the demand for our services, we may need to implement
new or upgraded operational and financial systems, procedures and controls, open
new offices and hire additional colleagues. Implementation of these new or
upgraded systems, procedures and controls may require substantial management
efforts and our efforts to do so may not be successful. The opening of new
offices (including international locations) or the hiring of additional
colleagues may result in idle or underutilized capacity. We continually assess
the expected capacity and utilization of our offices and professionals. We may
not be able to achieve or maintain optimal utilization of our offices and
professionals. If demand for our services does not meet our expectations, our
revenues and cash flows may not be sufficient to offset these expenses and our
results of operations and cash flows could be adversely affected.
We
may not be able to attract and retain information technology consulting
professionals, which could affect our ability to compete
effectively.
Our
business is labor intensive. Accordingly, our success depends in large part upon
our ability to attract, train, retain, motivate, manage and effectively utilize
highly skilled information technology consulting professionals. There is often
considerable competition for qualified personnel in the information technology
services industry. Additionally, our technology professionals are primarily
at-will employees. We also use independent subcontractors where appropriate to
supplement our employee capacity. Failure to retain highly skilled technology
professionals or hire qualified independent subcontractors would impair our
ability to adequately manage staff and implement our existing projects and to
bid for or obtain new projects, which in turn would adversely affect our
operating results.
Our
success depends on attracting and retaining senior management and key
personnel.
The
information technology services industry is highly specialized and the
competition for qualified management and key personnel is intense. We believe
that our success depends on retaining our senior management team and key
technical and business consulting personnel. Retention is particularly important
in our business as personal relationships are a critical element of
obtaining and maintaining strong relationships with our clients. In
addition, as we continue to grow our business, our need for senior experienced
management and implementation personnel increases. If a significant number of
these individuals depart the Company, or if we are unable to attract top
talent, our level of management, technical, marketing and sales expertise could
diminish or otherwise be insufficient for our growth. We may be unable to
achieve our revenues and operating performance objectives unless we can attract
and retain technically qualified and highly skilled sales, technical, business
consulting, marketing and management personnel. These individuals would be
difficult to replace, and losing them could seriously harm our
business.
We
may have difficulty in identifying and competing for strategic acquisition and
partnership opportunities.
Our
business strategy includes the pursuit of strategic acquisitions. We may acquire
or make strategic investments in complementary businesses, technologies,
services or products, or enter into strategic partnerships or alliances with
third parties in the future in order to expand our business. We may be unable to
identify suitable acquisition, strategic investment or strategic partnership
candidates, or if we do identify suitable candidates, we may not complete those
transactions on terms commercially favorable to us, or at all. We have
historically paid a portion of the purchase price for acquisitions with shares
of our common stock. Volatility in our stock prices, or a sustained
price decline, could adversely affect our ability to attract acquisition
candidates. If we fail to identify and successfully complete these transactions,
our competitive position and our growth prospects could be adversely affected.
In addition, we may face competition from other companies with significantly
greater resources for acquisition candidates, making it more difficult for us to
acquire suitable companies on favorable terms.
The
market for the information technology consulting services we provide is
competitive, has low barriers to entry and is becoming increasingly
consolidated, which may adversely affect our market position.
The
market for the information technology consulting services we provide is
competitive, rapidly evolving and subject to rapid technological change. In
addition, there are relatively low barriers to entry into this market and
therefore new entrants may compete with us in the future. For example, due to
the rapid changes and volatility in our market, many well-capitalized companies,
including some of our partners, that have focused on sectors of the software and
services industry that are not competitive with our business may refocus their
activities and deploy their resources to be competitive with us.
An
increasing amount of information technology services are being provided by
lower-cost non-domestic resources. The increased utilization of these resources
for US-based projects could result in lower revenues and margins for US-based
information technology companies. Our ability to compete utilizing higher-cost
domestic resources and/or our ability to procure comparably priced off-shore
resources could adversely impact our results of operations and financial
condition.
3
Our
future financial performance will depend, in large part, on our ability to
establish and maintain an advantageous market position. We currently compete
with regional and national information technology consulting firms, and, to a
limited extent, offshore service providers and in-house information technology
departments. Many of the larger regional and national information technology
consulting firms have substantially longer operating histories, more established
reputations and potential partner relationships, greater financial resources,
sales and marketing organizations, market penetration and research and
development capabilities, as well as broader product offerings and greater
market presence and name recognition. We may face increasing competitive
pressures from these competitors as the market for software and services
continues to grow. This may place us at a disadvantage to our competitors, which
may harm our ability to grow, maintain revenues or generate net
income.
In recent
years, there has been substantial consolidation in our industry, and we expect
that there will be significant additional consolidation in the future. As a
result of this increasing consolidation, we expect that we will increasingly
compete with larger firms that have broader product offerings and
greater financial resources than we have. We believe that this competition
could have a significant negative effect on our marketing, distribution and
reselling relationships, pricing of services and products and our product
development budget and capabilities. One or more of our competitors may develop
and implement methodologies that result in superior productivity and price
reductions without adversely affecting their profit margins. In addition,
competitors may win client engagements by significantly discounting their
services in exchange for a client’s promise to purchase other goods and services
from the competitor, either concurrently or in the future. These activities may
potentially force us to lower our prices and suffer reduced operating margins.
Any of these negative effects could significantly impair our results of
operations and financial condition. We may not be able to compete successfully
against new or existing competitors.
Our
business will suffer if we do not keep up with rapid technological change,
evolving industry standards or changing customer requirements.
Rapidly
changing technology, evolving industry standards and changing customer needs are
common in the software and services market. We expect technological developments
to continue at a rapid pace in our industry. Technological developments,
evolving industry standards and changing customer needs could cause our business
to be rendered obsolete or non-competitive, especially if the market for the
core set of business-driven technology solutions and software platforms in which
we have expertise does not grow or if such growth is delayed due to market
acceptance, economic uncertainty or other conditions. Accordingly, our success
will depend, in part, on our ability to:
§
continue
to develop our technology
expertise;
§
enhance
our current services;
§
develop
new services that meet changing customer
needs;
§
advertise
and market our services; and
§
influence
and respond to emerging industry standards and other technological
changes.
We must
accomplish all of these tasks in a timely and cost-effective manner. We might
not succeed in effectively doing any of these tasks, and our failure to succeed
could have a material and adverse effect on our business, financial condition or
results of operations, including materially reducing our revenues and operating
results.
We may
also incur substantial costs to keep up with changes surrounding the Internet.
Unresolved critical issues concerning the commercial use and government
regulation of the Internet include the following:
§
security;
§
intellectual
property ownership;
§
privacy;
§
taxation;
and
§
liability
issues.
Any costs
we incur because of these factors could materially and adversely affect our
business, financial condition and results of operations, including reduced net
income.
4
A
significant portion of our revenue is dependent upon building long-term
relationships with our clients and our operating results could suffer if we fail
to maintain these relationships.
Our
professional services agreements with clients are in most cases terminable on 10
to 30 days' notice. A client may choose at any time to use another consulting
firm or choose to perform services we provide through their own internal
resources. A sustained decrease in a client’s business activity could cause the
cancellation of projects. Accordingly, we rely on our clients' interests in
maintaining the continuity of our services rather than on contractual
requirements. Termination of a relationship with a significant client or with a
group of clients that account for a significant portion of our revenues could
adversely affect our revenues and results of operations.
If
we fail to meet our clients' performance expectations, our reputation may be
harmed.
As a
services provider, our ability to attract and retain clients depends to a large
extent on our relationships with our clients and our reputation for high quality
services and integrity. We also believe that the importance of reputation and
name recognition is increasing and will continue to increase due to the number
of providers of information technology services. As a result, if a client is not
satisfied with our services or does not perceive our solutions to be effective
or of high quality, our reputation may be damaged and we may be unable to
attract new, or retain existing, clients and colleagues.
We
may face potential liability to customers if our customers' systems
fail.
Our
business-driven technology solutions are often critical to the operation of our
customers' businesses and provide benefits that may be difficult to quantify. If
one of our customers' systems fails, the customer could make a claim for
substantial damages against us, regardless of our responsibility for that
failure. The limitations of liability set forth in our contracts may not be
enforceable in all instances and may not otherwise protect us from liability for
damages. Our insurance coverage may not continue to be available on reasonable
terms or in sufficient amounts to cover one or more large claims. In addition, a
given insurer might disclaim coverage as to any future claims. In addition, due
to the nature of our business, it is possible that we will be sued in the
future. If we experience one or more large claims against us that exceed
available insurance coverage or result in changes in our insurance policies,
including premium increases or the imposition of large deductible or
co-insurance requirements, our business and financial results could
suffer.
The
loss of one or more of our significant software business partners would have a
material and adverse effect on our business and results of
operations.
Our
business relationships with software vendors enable us to reduce our cost of
sales and increase win rates through leveraging our partners’ marketing efforts
and strong vendor endorsements. The loss of one or more of these relationships
and endorsements could increase our sales and marketing costs, lead to longer
sales cycles, harm our reputation and brand recognition, reduce our revenues and
adversely affect our results of operations.
In
particular, a substantial portion of our solutions are built on IBM WebSphere
platforms and a significant number of our clients are identified through joint
selling opportunities conducted with IBM and through sales leads obtained from
our relationship with IBM. The loss of our relationship with, or a
significant reduction in the services we perform for IBM, would have a material
adverse effect on our business and results of operations.
Our
quarterly operating results may be volatile and may cause our stock price to
fluctuate.
Our
quarterly revenues, expenses and operating results have varied in the past and
are likely to vary significantly in the future, which could lead to volatility
in our stock price. In addition, many factors affecting our operating results
are outside of our control, such as:
§
demand
for software and services;
§
customer
budget cycles;
§
changes
in our customers' desire for our partners' products and our
services;
§
pricing
changes in our industry; and
§
government
regulation and legal developments regarding the use of the
Internet.
As a
result, if we experience unanticipated changes in the number or nature of our
projects or in our employee utilization rates, we could experience large
variations in quarterly operating results in any particular
quarter.
5
Our
services revenues may fluctuate quarterly due to seasonality or timing of
completion of projects.
We may
experience seasonal fluctuations in our services revenues. We expect that
services revenues in the fourth quarter of a given year may typically be lower
than in other quarters in that year as there are fewer billable days in this
quarter as a result of vacations and holidays. In addition, we generally perform
services on a project basis. While we seek wherever possible to counterbalance
periodic declines in revenues on completion of large projects with new
arrangements to provide services to the same client or others, we may not be
able to avoid declines in revenues when large projects are completed. Our
inability to obtain sufficient new projects to counterbalance any decreases in
work upon completion of large projects could adversely affect our revenues and
results of operations.
Our
software revenues may fluctuate quarterly, leading to volatility in our results
of operations.
Our
software revenues may fluctuate quarterly and be higher in the fourth quarter of
a given year as procurement policies of our clients may result in higher
technology spending towards the end of budget cycles. This seasonal trend may
materially affect our quarter-to-quarter revenues, margins and operating
results.
Our
overall gross margin fluctuates quarterly based on our services and software
revenues mix, impacting our results of operations.
The gross
margin on our services revenues is, in most instances, greater than the gross
margin on our software revenues. As a result, our gross margin will be higher in
quarters where our services revenues, as a percentage of total revenues, has
increased, and will be lower in quarters where our software revenues, as a
percentage of total revenues, has increased. In addition, gross margin on
software revenues may fluctuate as a result of variances in gross margin on
individual software products. Our stock price may be negatively affected in
quarters in which our gross margin decreases.
Our
services gross margins are subject to fluctuations as a result of variances in
utilization rates and billing rates.
Our
services gross margins are affected by trends in the utilization rate of our
professionals, defined as the percentage of our professionals' time billed to
customers divided by the total available hours in a period, and in the billing
rates we charge our clients. Our operating expenses, including employee
salaries, rent and administrative expenses, are relatively fixed and cannot be
reduced on short notice to compensate for unanticipated variations in the number
or size of projects in process. If a project ends earlier than scheduled, we may
need to redeploy our project personnel. Any resulting non-billable time may
adversely affect our gross margins.
The
average billing rates for our services may decline due to rate pressures from
significant customers and other market factors, including innovations and
average billing rates charged by our competitors. If there is a sustained
downturn in the U.S. economy or in the information technology services industry,
rate pressure may increase. Also, our average billing rates will decline if we
acquire companies with lower average billing rates than ours. To sell our
products and services at higher prices, we must continue to develop and
introduce new services and products that incorporate new technologies or
high-performance features. If we experience pricing pressures or fail to develop
new services, our revenues and gross margins could decline, which could harm our
business, financial condition and results of operations.
If
we fail to complete fixed-fee contracts within budget and on time, our results
of operations could be adversely affected.
In 2007,
approximately 13% of our projects were performed on a fixed-fee basis, rather
than on a time-and-materials basis. Under these contractual arrangements, we
bear the risk of cost overruns, completion delays, wage inflation and other cost
increases. If we fail to estimate accurately the resources and time required to
complete a project or fail to complete our contractual obligations within the
scheduled timeframe, our results of operations could be adversely affected. We
cannot guarantee that in the future we will not price these contracts
inappropriately, which may result in losses.
We
may not be able to maintain our level of profitability.
Although
we have been profitable for the past four years, we may not be able to sustain
or increase profitability on a quarterly or annual basis in the future and in
fact could experience decreased profitability. If we fail to meet public market
analysts' and investors' expectations, the price of our common stock will likely
fall.
Our
services may infringe upon the intellectual property rights of
others.
We cannot
be sure that our services do not infringe on the intellectual property rights of
third parties, and we may have infringement claims asserted against
us. These claims may harm our reputation, cause our management to
expend significant time in connection with any defense and cost us
money. We may be required to indemnify clients for any expense
or liabilities they incur resulting from claimed infringement and these expenses
could exceed the amounts paid to us by the client for services we have
performed. Any claims in this area, even if won by us, can be costly,
time-consuming and harmful to our reputation.
6
International
operations subject us to additional political and economic risks that could have
an adverse impact on our business.
In
connection with our acquisition of BoldTech Systems, Inc. (“BoldTech”) in 2007,
we acquired a global development center in Hangzhou, China. In
connection with our acquisition of ePairs, Inc. (“ePairs”), we acquired an 80%
equity interest in ePairs India Private Limited, which operates a technology
consulting recruiting office in Chennai, India. We also have an agreement with a
third party offshore facility in Eastern Europe to provide the Company offshore
resources on an exclusive basis. Because of our limited experience
with facilities outside of the United States, we are subject to certain risks
related to expanding our presence into non-U.S. regions, including risks related
to complying with a wide variety of national and local laws, restrictions on the
import and export of certain technologies and multiple and possibly overlapping
tax structures. In addition, we may face competition from companies that may
have more experience with operations in such countries or with international
operations generally. We may also face difficulties integrating new facilities
in different countries into our existing operations, as well as integrating
employees that we hire in different countries into our existing corporate
culture.
Furthermore,
there are risks inherent in operating in and expanding into
non-U.S. regions, including, but not limited to:
§
political
and economic instability;
§
global
health conditions and potential natural
disasters;
§
unexpected
changes in regulatory requirements;
§
international
currency controls and exchange rate
fluctuations;
§
reduced
protection for intellectual property rights in some countries;
and
§
additional
vulnerability from terrorist groups targeting American interests
abroad.
Any one
or more of the factors set forth above could have a material adverse effect on
our international operations, and, consequently, on our business, financial
condition and operating results.
Immigration
restrictions related to H-1B visas could hinder our growth and adversely affect
our business, financial condition and results of operations.
Approximately
25% of our work force is comprised of skilled foreigners holding H-1B
visas. In 2007, we acquired a recruiting facility in Chennai, India,
to continue to grow our base of H-1B foreign national colleagues. The
H-1B visa classification enables us to hire qualified foreign workers in
positions that require the equivalent of at least a bachelor’s degree in the
U.S. in a specialty occupation such as technology systems engineering and
analysis. The H-1B visa generally permits an individual to work
and live in the U.S. for a period of three to six years, with some extensions
available. The number of new H-1B petitions approved in any federal
fiscal year is limited, making the H-1B visas necessary to bring foreign
employees to the U.S. unobtainable in years in which the limit is
reached. If we are unable to obtain all of the H-1B visas for which
we apply, our growth may be hindered.
There are
strict labor regulations associated with the H-1B visa classification and users
of the H-1B visa program are subject to investigations by the Wage and Hour
Division of the United States Department of Labor. If we are
investigated, a finding by the United States Department of Labor of willful or
substantial failure by us to comply with existing regulations on the H-1B
classification could result in back-pay liability, substantial fines, or a ban
on future use of the H-1B program and other immigration benefits, any of which
could materially and adversely affect our business, financial condition and
results of operations.
7
We
have recorded deferred offering costs in connection with a previously filed
shelf registration statement, and our inability to offset these costs against
the proceeds of future offerings from our current shelf registration statement
could result in a non-cash expense in our Statement of Income in a future
period.
We
initially filed a registration statement with the Securities and Exchange
Commission in March 2005 to register the offer and sale by the Company and
certain selling stockholders of shares of our common stock. Due to market
conditions, we converted our registration statement into a shelf registration
statement to allow for offers and sales of common stock from time to time as
market conditions permit. As of December 31, 2007, we have recorded
approximately $943,000 of deferred offering costs (approximately $579,000 after
tax, if ever expensed) in connection with that prior offering and have
classified these costs as prepaid expenses in other non-current assets on our
balance sheet.
We have
filed a new shelf registration statement to register 4,250,000 shares of common
stock unsold under the previous shelf registration statement. If we
sell shares of common stock from this new shelf registration statement, we will
offset these accumulated deferred offering costs against the proceeds of the
offering. If we do not raise funds through an equity offering from this shelf
registration statement or fail to maintain the effectiveness of this shelf
registration statement, the currently capitalized deferred offering costs will
be expensed. Such expense would be a non-cash accounting charge as all of these
expenses have already been paid.
Risks
Related to Ownership of Our Common Stock
Our
stock price has been volatile and may continue to fluctuate widely.
Our
common stock is traded on the Nasdaq Global Select Market, a tier of The NASDAQ
Stock Market LLC, under the symbol “PRFT.” Our common stock price has been
volatile. Our stock price may continue to fluctuate widely as a result of
announcements of new services and products by us or our competitors, quarterly
variations in operating results, the gain or loss of significant customers,
changes in public market analysts' estimates and market conditions for
information technology consulting firms and other technology stocks in
general.
We
periodically review and consider possible acquisitions of companies that we
believe will contribute to our long-term objectives. In addition, depending on
market conditions, liquidity requirements and other factors, from time to time
we consider accessing the capital markets. These events may also affect the
market price of our common stock.
Our
officers, directors, and 5% and greater stockholders own a large percentage of
our voting securities and their interests may differ from other
stockholders.
Our
executive officers, directors and 5% and greater stockholders beneficially own
or control approximately 17% of the voting power of our common stock. This
concentration of voting power of our common stock may make it difficult for our
other stockholders to successfully approve or defeat matters that may be
submitted for action by our stockholders. It may also have the effect of
delaying, deterring or preventing a change in control of our
company.
We
may need additional capital in the future, which may not be available to us. The
raising of any additional capital may dilute your ownership percentage in our
stock.
We intend
to continue to make investments to support our business growth and may require
additional funds to pursue business opportunities and respond to business
challenges. Accordingly, we may need to engage in equity or debt financings to
secure additional funds. If we raise additional funds through further issuances
of equity or convertible debt securities, our existing stockholders could
suffer dilution, and any new equity securities we issue could have rights,
preferences and privileges superior to those of holders of our common stock. Any
debt financing secured by us in the future could involve restrictive
covenants relating to our capital raising activities and other financial and
operational matters, which may make it more difficult for us to obtain
additional capital and to pursue business opportunities, including potential
acquisitions. In addition, we may not be able to obtain additional financing on
terms favorable to us, if at all. If we are unable to obtain adequate financing
or financing on terms satisfactory to us, when we require it, our ability to
continue to support our business growth and to respond to business challenges
could be significantly limited.
It
may be difficult for another company to acquire us, and this could depress our
stock price.
In
addition to the large percentage of our voting securities held by our officers,
directors and 5% and greater stockholders, provisions contained in our
certificate of incorporation, bylaws and Delaware law could make it difficult
for a third party to acquire us, even if doing so would be beneficial to our
stockholders. Our certificate of incorporation and bylaws may discourage, delay
or prevent a merger or acquisition that a stockholder may consider favorable by
authorizing the issuance of “blank check” preferred stock. In addition,
provisions of the Delaware General Corporation Law also restrict some business
combinations with interested stockholders. These provisions are intended to
encourage potential acquirers to negotiate with us and allow the board of
directors the opportunity to consider alternative proposals in the interest
of maximizing stockholder value. However, these provisions may also discourage
acquisition proposals or delay or prevent a change in control, which could harm
our stock price.
8
FORWARD-LOOKING
STATEMENTS
Some of
the statements contained in this prospectus and in the documents we incorporate
by reference that are not purely historical statements discuss future
expectations, contain projections of results of operations or financial
condition or state other forward-looking information. Those
statements are subject to known and unknown risks, uncertainties and other
factors that could cause the actual results to differ materially from those
contemplated by the statements. The “forward-looking” information is
based on various factors and was derived using numerous assumptions. In some
cases, you can identify these so-called forward-looking statements by words like
“may,”“will,”“should,”“expects,”“plans,”“anticipates,”“believes,”“estimates,”“predicts,”“potential” or “continue” or the negative of those
words and other comparable words. You should be aware that those
statements only reflect our predictions. Actual events or results may differ
substantially. Important factors that could cause our actual results to be
materially different from the forward-looking statements are disclosed under the
heading “Risk Factors” in this prospectus.
Although
we believe that the expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, levels of activity, performance
or achievements. We are under no duty to update any of the forward-looking
statements after the date of this prospectus to conform such statements to
actual results.
All
forward-looking statements, express or implied, included in this prospectus and
the documents we incorporate by reference and attributable to Perficient are
expressly qualified in their entirety by this cautionary statement. This
cautionary statement should also be considered in connection with any subsequent
written or oral forward-looking statements that Perficient or any persons acting
on our behalf may issue.
USE
OF PROCEEDS
Unless we
inform you otherwise in a prospectus supplement, we expect to use a substantial
portion of the net proceeds from this offering for expansion of our business,
including future acquisitions of information technology consulting
firms.
We will
use any remaining net proceeds from this offering for working capital and other
general corporate purposes. The amounts actually spent by us may vary
significantly and will depend upon a number of factors, including our future
revenue and the other factors described under “Risk Factors.” Accordingly, our
management has broad discretion in the allocation of the net proceeds from this
offering.
9
PLAN
OF DISTRIBUTION
We may
sell the offered securities in and outside the United States (1) through
underwriters or dealers, (2) directly to purchasers, including our
affiliates and shareholders, (3) through agents or (4) through a
combination of any of these methods. The prospectus supplement will include the
following information:
•
the
terms of the offering;
•
the
names of any underwriters or agents;
•
the
name or names of any managing underwriter or
underwriters;
•
the
purchase price or initial public offering price of the
securities;
•
the
net proceeds from the sale of the securities;
•
any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
•
any
discounts or concessions allowed or reallowed or paid to
dealers; and
•
any
commissions paid to agents.
In addition, we may sell securities not covered by this prospectus to third
parties in privately negotiated transactions.
Sale
Through Underwriters or Dealers
If
underwriters are used in the sale, the underwriters will acquire the securities
for their own account for resale to the public, either on a firm commitment
basis or a best efforts basis. The underwriters may resell the securities from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale. Underwriters may offer securities to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters
to purchase the securities will be subject to certain conditions. The
underwriters may change from time to time any initial public offering price and
any discounts or concessions allowed or reallowed or paid to
dealers.
During
and after an offering through underwriters, the underwriters may purchase and
sell the securities in the open market. These transactions may include
overallotment and stabilizing transactions and purchases to cover syndicate
short positions created in connection with the offering. The underwriters may
also impose a penalty bid, which means that selling concessions allowed to
syndicate members or other broker-dealers for the offered securities sold for
their account may be reclaimed by the syndicate if the offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, the underwriters may discontinue these
activities at any time.
We cannot
assure you of the liquidity of, or continued trading markets for, any securities
that we offer.
If
dealers are used in the sale of securities, we will sell the securities to them
as principals. They may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. We will include in the
prospectus supplement the names of the dealers and the terms of the
transaction.
Direct
Sales and Sales through Agents
We may
sell the securities directly. In this case, no underwriters or agents would be
involved. We may also sell the securities through agents designated from time to
time. In the prospectus supplement, we will name any agent involved in the offer
or sale of the offered securities, and we will describe any commissions payable
to the agent. Unless we inform you otherwise in the prospectus supplement, any
agent will agree to use its reasonable best efforts to solicit purchases
for the period of its appointment.
We may
sell the securities directly to institutional investors or others who may be
deemed to be underwriters within the meaning of the Securities Act of 1933 with
respect to any sale of those securities. We will describe the terms of any such
sales in the prospectus supplement.
10
Underwriters,
dealers and agents that participate in the distribution of offered securities
may be underwriters as defined in the Securities Act, and any discounts or
commissions received by them from us and any profit on the resale of the offered
securities by them may be treated as underwriting discounts and commissions
under the Securities Act. Any underwriters or agents will be identified and
their compensation described in a prospectus supplement.
We may
have agreements with the underwriters, dealers and agents to indemnify them
against certain civil liabilities, including liabilities under the Securities
Act, or to contribute with respect to payments that the underwriters, dealers or
agents may be required to make.
Underwriters,
dealers and agents may engage in transactions with, or perform services for, us
in the ordinary course of our business.
LEGAL
MATTERS
Our legal
counsel, Vinson & Elkins L.L.P., Austin, Texas, have passed and will
pass upon certain legal matters in connection with the offering securities. Any
underwriters will be advised about other issues relating to any offering by
their own legal counsel.
EXPERTS
The
consolidated financial statements of the Company as of December 31, 2007 and for
the year then ended have been incorporated by reference herein in reliance upon
the reports of KPMG LLP, independent registered public accounting firm,
appearing elsewhere incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing. The audit
report covering the December 31, 2007 consolidated financial statements refers
to the adoption, effective January 1, 2006, by the Company of Statement of
Financial Accounting Standards No. 123 (Revised 2004) – Share-Based
Payment. The audit report on the effectiveness of internal
control over financial reporting as of December 31, 2007, contains an
explanatory paragraph that states the Company acquired e tech solutions, Inc. (E
Tech), Tier1 Innovation, LLC (Tier 1), BoldTech Systems, Inc. (BoldTech), and
ePairs, Inc. (ePairs) during 2007, and management excluded from its assessment
of the effectiveness of the Company’s internal control over financial reporting
as of December 31, 2007, E Tech, Tier 1, BoldTech, and ePairs’ internal
control over financial reporting associated with 25% and 10% of the Company’s
total assets and total revenues, respectively, as of and for the year ended
December 31, 2007. KPMG LLP’s audit of internal control over
financial reporting of Perficient, Inc. as of December 31, 2007 also excluded an
evaluation of the internal control over financial reporting of E Tech, Tier 1,
BoldTech, and ePairs.
The
consolidated balance sheet of the Company as of December 31, 2006 and the
related consolidated statements of income, stockholders' equity and
comprehensive income, and cash flows for the years ended December 31, 2006 and
2005, have been incorporated by reference herein in reliance upon the report of
BDO Seidman, LLP, independent registered public accounting firm, appearing
elsewhere incorporated by reference herein, and upon the authority of said firm
as experts in accounting and auditing. The audit report covering the December31, 2006 consolidated financial statements refers to the adoption,
effective January 1, 2006, by the Company of Statement of Financial Accounting
Standards No. 123 (Revised 2004) – Share Based
Payment.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and special reports, proxy statements and other information
with the Securities and Exchange Commission. We have filed a registration
statement to register with the SEC the shares of our common stock listed in the
prospectus. This prospectus does not contain all the information contained in
the registration statement and the exhibits to the registration statement. For
further information with respect to our common stock, we refer you to the
registration statement and to the exhibits to the registration statement.
Statements contained in this prospectus as to the contents of any contract,
agreement or other document to which we make reference are not necessarily
complete, and in each instance, we refer you to the copy of the contract,
agreement or other document filed as an exhibit to the registration statement.
Each of these statements is qualified in all respects by this reference. You may
also read and copy any document we file with the SEC at the SEC’s Public
Reference Room located at 100 F Street, N.E., Washington, D.C.
20549. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also
maintains a website at www.sec.gov which contains the reports, proxy statements
and other information we file with the SEC. You may also inspect our
SEC reports and other information at our website at
http://www.perficient.com. We do not intend for information contained in our
website to be part of this prospectus.
11
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
Some of
the important business and financial information that you may want to consider
is not included in this prospectus, but rather is “incorporated by reference” to
documents that have been filed by us with the Securities and Exchange
Commission pursuant to the Exchange Act of 1934. The information that is
incorporated by reference consists of:
Our
current reports on Form 8-K (excluding any portions thereof that are
deemed to be furnished and not filed) filed on March 12, 2008, March 27,2008 and June 3, 2008; and
·
The
description of our common stock contained in our Form 8-A filed on July22, 1999 (File No. 000-15169).
All
documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, after the date of the initial registration statement and prior
to the effectiveness of the registration statement and subsequent to the date of
this prospectus and prior to the termination of this offering, shall be deemed
incorporated by reference in this prospectus and made a part hereof from the
date of filing of those documents. Any statement contained in a document
incorporated or deemed incorporated by reference in this prospectus shall be
deemed modified or superseded for purposes of this prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed incorporated by reference herein or in any prospectus
supplement modifies or supersedes that statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We will
provide without charge to each person who is delivered a prospectus, on written
or oral request, a copy of any or all of the documents incorporated by reference
herein (other than exhibits to those documents unless those exhibits are
specifically incorporated by reference into those documents). Requests for
copies should be directed to Investor Relations, Perficient, Inc.,
1120 South Capital of Texas Highway, Building 3, Suite 220,
Austin, Texas78746, Telephone: (512) 531-6000.
12
PART
II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth all expenses payable by us in connection with the
issuance and distribution of the securities being registered. All amounts shown
are estimates, except for the SEC registration fee.
SEC
registration
fee
$
1,708.67
Printing
expenses
1,000.00
Accounting
fees and
expenses
40,000.00
Legal
fees and
expenses
20,000.00
Total
$
62,708.67
We will
bear all expenses shown above.
Item
15. Indemnification of Directors and Officers
Perficient,
Inc. is incorporated under the laws of the State of Delaware. Subsection (a) of
Section 145 of the Delaware General Corporation Law, or DGCL, empowers a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person 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 the person’s conduct was
unlawful.
Subsection
(b) of Section 145 empowers a corporation to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys’ fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect to any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section
145 further provides that to the extent a director or officer of a corporation
has been successful on the merits or otherwise in the defense of any such
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
or in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys’ fees) actually and reasonably incurred by
him in connection therewith; that the indemnification provided for by Section
145 shall not be deemed exclusive of any other rights which the indemnified
party may be entitled; that indemnification provided by Section 145 shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of such person’s heirs, executors and administrators; and
empowers the corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Section
102(b)(7) of the DGCL provides that a certificate of incorporation may contain a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of the director:
· For
any breach of the director’s duty of loyalty to the corporation or its
stockholders;
· For
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law;
· Under
Section 174 of the DGCL; or
· For
any transaction from which the director derived an improper personal
benefit.
Article 6
of our Certificate of Incorporation provides that, to the fullest extent
permitted by the DGCL, no director of the registrant shall be liable to us or
our stockholders for monetary damages for breach of fiduciary duty as a
director.
Article
11 of our Bylaws provides that we shall indemnify, to the fullest extent
permitted by the DGCL, 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, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
any third party proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in, or not opposed to, our best interests
and, with respect to any criminal third party proceeding, had no reasonable
cause to believe such conduct was unlawful.
We have
indemnification agreements with each of our directors and executive
officers.
We
maintain officers’ and directors’ liability insurance.
Warrant
granted to Gilford Securities Incorporated
4.7
##
Form
of Common Stock Purchase Warrant
4.8
###
Form
of Warrant
5.1
††
Opinion
of Vinson & Elkins L.L.P.
23.1
††
Consent
of BDO Seidman, LLP
23.2
††
Consent
of KPMG LLP
23.5
††
Consent
of Vinson & Elkins L.L.P. (included in Exhibit 5.1
hereto)
24.1
††
Power
of Attorney
*
Filed
herewith.
†
To
be filed by Amendment or as an exhibit to a report filed under the
Securities Exchange Act of 1934 and incorporated by reference to this
Registration Statement.
††
Previously
filed.
+
Previously filed with the Securities and Exchange Commission as an Exhibit to
our Registration Statement on Form SB-2 (File No. 333-78337) declared effective
on July 28, 1999 by the Securities and Exchange Commission and incorporated
herein by reference.
++
Previously filed with the Securities and Exchange Commission as an Exhibit to
our Form 8-A filed with the Securities and Exchange Commission pursuant to
Section 12(g) of the Securities Exchange Act of 1934 on February 15, 2005 and
incorporated by reference herein.
+++ Previously
filed with the Securities and Exchange Commission as an Exhibit to our
Registration Statement on Form S-8 (File No. 333-130624) filed on December 22,2005 and incorporated by reference herein.
# Previously
filed with the Securities and Exchange Commission as an Exhibit to our Current
Report on Form 8-K filed November 9, 2007 and incorporated by reference
herein.
## Previously
filed with the Securities and Exchange Commission as an Exhibit to our Current
Report on Form 8-K filed on January 17, 2002 and incorporated by reference
herein.
### Previously
filed with the Securities and Exchange Commission as an Exhibit to our
Registration Statement on Form S-3 (File No. 333-117216) filed on
July 8, 2004 and incorporated by reference herein.
Item 17.
Undertakings
The
undersigned registrant hereby undertakes:
(a) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(1) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(2) 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. 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 SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective
registration statement;
(3) 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 the undertakings set forth in paragraphs (1), (2) and (3) 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 or
furnished to the SEC by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(b) That,
for the purpose of determining any liability under the Securities Act of 1933,
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.
(c) 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.
(d) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 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.
(e) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of the
registration statement relating to this offering, shall be deemed to be part of
and included in the registration statement as of the date it is first used after
effectiveness; provided, however, that no statement made in a registration
statement or prospectus that is part of this registration statement or made in a
document incorporated or deemed incorporated by reference into this registration
statement or prospectus that is part of this registration statement will, as to
a purchaser with a time of contract of sale prior to such first use, supersede
or modify any statement that was made in the registration statement or
prospectus that was part of this registration statement or made in any such
document immediately prior to such date of first use.
(f) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(1) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(2) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(3) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(4) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(g)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 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 SEC such indemnification is against
public policy as expressed in the Securities Act of 1933 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.
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-3 and has duly caused this Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Austin, State of Texas, on August 1,2008.
Warrant
granted to Gilford Securities Incorporated
4.7
##
Form
of Common Stock Purchase Warrant
4.8
###
Form
of Warrant
5.1
††
Opinion
of Vinson & Elkins L.L.P.
23.1
††
Consent
of BDO Seidman, LLP
23.2
††
Consent
of KPMG LLP
23.5
††
Consent
of Vinson & Elkins L.L.P. (included in Exhibit 5.1
hereto)
24.1
††
Power
of Attorney
*
Filed
herewith.
†
To
be filed by Amendment or as an exhibit to a report filed under the
Securities Exchange Act of 1934 and incorporated by reference to this
Registration Statement.
††
Previously
filed.
+ Previously
filed with the Securities and Exchange Commission as an Exhibit to our
Registration Statement on Form SB-2 (File No. 333-78337) declared effective on
July 28, 1999 by the Securities and Exchange Commission and incorporated herein
by reference.
++
Previously filed with the Securities and Exchange Commission as an Exhibit to
our Form 8-A filed with the Securities and Exchange Commission pursuant to
Section 12(g) of the Securities Exchange Act of 1934 on February 15, 2005 and
incorporated by reference herein.
+++ Previously
filed with the Securities and Exchange Commission as an Exhibit to our
Registration Statement on Form S-8 (File No. 333-130624) filed on December 22,2005 and incorporated by reference herein.
# Previously
filed with the Securities and Exchange Commission as an Exhibit to our Current
Report on Form 8-K filed November 9, 2007 and incorporated by reference
herein.
## Previously
filed with the Securities and Exchange Commission as an Exhibit to our Current
Report on Form 8-K filed on January 17, 2002 and incorporated by reference
herein.
p
Accelerated Filer
