-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R+kupDAStmefCy9lvjRnoFZy8acEHvkt6JZ3jydYUF3El+X99lGwLOEYdmqKnBrB RcMKbmVsduYsTtdDcFdaeQ== 0000930661-02-004270.txt : 20021212 0000930661-02-004270.hdr.sgml : 20021212 20021212152343 ACCESSION NUMBER: 0000930661-02-004270 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20021212 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MEYERSON MORTON H CENTRAL INDEX KEY: 0001180180 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 3401 ARMSTRONG AVE CITY: DALLAS STATE: TX ZIP: 75205 BUSINESS PHONE: 2144431900 MAIL ADDRESS: STREET 1: 3401 ARMSTORNG AVE CITY: DALLAS STATE: TX ZIP: 75205 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PERFICIENT INC CENTRAL INDEX KEY: 0001085869 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 742853258 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-57761 FILM NUMBER: 02855784 BUSINESS ADDRESS: STREET 1: 7600-B NORTH CAPITAL OF TEXAS HGWY, STREET 2: SUITE 220 CITY: AUSTIN STATE: TX ZIP: 78731 BUSINESS PHONE: 5125316000 MAIL ADDRESS: STREET 1: 7600-B NORTH CAPITAL OF TEXAS OF HGWY STREET 2: SUITE 220 CITY: AUSTIN STATE: TX ZIP: 78731 SC 13D 1 dsc13d.htm SCHEDULE 13D SCHEDULE 13D
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
SCHEDULE 13D
 
 
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No.             )*
 
 
 
 
 
PERFICIENT, INC.
(Name of Issuer)
 
 
Common Stock
(Title of Class of Securities)
 
 
71375U 101
(CUSIP Number)
 
 
Morton H. Meyerson
3401 Armstrong Ave.
Dallas, Texas 75205
214  443-1900
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
 
 
December 10, 2002
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box x.
 
Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
 
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 71375U 101
 
  1.

  
Name of Reporting Person.
I.R.S. Identification Nos. of above persons (entities only).
 
            Morton H. Meyerson
    
  2.
  
Check the Appropriate Box if a Member of a Group (See Instructions)
(a)  ¨
(b)  ¨
    
  3.

  
SEC Use Only
 
    
  4.

  
Source of Funds*
 
            PF
    
  5.

  
Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
 
  
¨
  6.

  
Citizenship or Place of Organization
 
            USA
    
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH:
  
  7.    Sole Voting Power
 
                3,028,423
  8.    Shared Voting Power
 
  9.    Sole Dispositive Power
 
                3,028,423
10.    Shared Dispositive Power
 
11.

  
Aggregate Amount Beneficially Owned by Each Reporting Person
 
            3,028,423
    
12.

  
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
 
  
¨
 
13.

  
Percent of Class Represented by Amount in Row (11)
 
            24.30%
    
14.

  
Type of Reporting Person
 
            IN
    
 

2

 
Item
 
1.    Security and Issuer
 
        The securities to which this statement relates are shares of the common stock, par value $.001 per share (the “Common Stock”), of Perficient, Inc., a Delaware corporation (the “Corporation”). The principal executive offices of the Corporation are located at
7600-B North Capital of Texas Highway, Austin, Texas 78731.
 
Item
 
2.    Identity and Background
 
Morton H. Meyerson
 
Item
 
3.    Source and Amount of Funds or Other Consideration
 
The source of funds for the acquisition of shares is Mr. Meyerson’s personal financial resources.
 
Item
 
4.    Purpose of Transaction.
 
On December 10, 2002, Mr. Meyerson entered into a Share Purchase Agreement pursuant to which Mr. Meyerson and John T. McDonald purchased 59,071 shares and 29,536 shares, respectively of Common Stock of the Corporation from John T. Gillespie.
 
On December 10, 2002, Mr. Meyerson entered into a Share Purchase Agreement pursuant to which Mr. Meyerson and John T. McDonald purchased 536,185 shares and 268,092 shares, respectively of Common Stock of the Corporation from Charlie Weigert, Carol Matthews, Brian Matthews, Welton J.L. Brison, CDM Ventures, Tom Hesterman, Tim Wilson and CBC Distribution and Marketing, Inc. Pursuant to this agreement, Mr. Meyerson and Mr. McDonald will purchase 144,996 and 72,498 shares of Common Stock of the Corporation which are currently being held in escrow.
 
On December 10, 2002, Mr. Meyerson entered into a Share Purchase Agreement pursuant to which Mr. Meyerson and John T. McDonald purchased 266,667 shares and 133,333 shares, respectively of Common Stock of the Corporation from Sam Fatigato. This acquisition is scheduled to close on January 2, 2003. The shares are being held in escrow subject to release upon the closing.
 
Item
 
5.    Interest in Securities of the Issuer
 
As of December 10, 2002, Mr. Meyerson beneficially owned, for purposes of Rule 13d-3 under the Securities Exchange Act of 1934, 3,028,423 shares of Common Stock of the Corporation, constituting 24.30% of the issued and outstanding shares of Common Stock. Such

3

 
shares include 1,111,000 shares of Common Stock issuable upon conversion of Series B Preferred Stock held by 2M Technology Ventures, L.P. 2M Technology Ventures, L.P. is controlled by Mr. Meyerson and Mr. Meyerson holds sole voting power and sole dispositive power with respect to such shares. Does not include 144,996 shares of Common Stock held in escrow pursuant to the Share Purchase Agreement dated December 10, 2002, by and among Charlie Weigert, Carol Matthews, Brian Matthews, Welton J.L. Brison, CDM Ventures, Tom Hesterman, Tim Wilson, CBC Distribution and Marketing, Inc., John T. McDonald and Mr. Meyerson.
 
Item
 
6.    Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
 
On December 10, 2002, Mr. Meyerson entered into a Share Purchase Agreement pursuant to which Mr. Meyerson and John T. McDonald purchased 266,667 shares and 133,333 shares, respectively of Common Stock of the Corporation from Sam Fatigato. This acquisition is scheduled to close on January 2, 2003.
 
Item
 
7.    Materials to be Filed as Exhibits
 
Exhibit A
   
—    
   
Share Purchase Agreement dated December 10, 2002 by and among John T. Gillespie, John T. McDonald and Morton H. Meyerson.
Exhibit B
   
—    
   
Share Purchase Agreement dated December 10, 2002 by and among Charlie Weigert, Carol Matthews, Brian Matthews, Welton J.L. Brison, CDM Ventures, Tom Hesterman, Tim Wilson, CBC Distribution and Marketing, Inc., John T. McDonald and Morton H. Meyerson.
Exhibit C
   
—    
   
Share Purchase Agreement dated December 10, 2002 by and among Sam Fatigato, John T. McDonald and Morton H. Meyerson.

4

 
SIGNATURE
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
 
Dated:    December 10, 2002
   
/s/    MORTON H. MEYERSON
Morton H. Meyerson

5

 
INDEX TO EXHIBITS
 
 
Exhibit A
   
—    
   
Share Purchase Agreement dated December 10, 2002 by and among John T. Gillespie, John T. McDonald and Morton H. Meyerson.
Exhibit B
   
—    
   
Share Purchase Agreement dated December 10, 2002 by and among Charlie Weigert, Carol Matthews, Brian Matthews, Welton J.L. Brison, CDM Ventures, Tom Hesterman, Tim Wilson, CBC Distribution and Marketing, Inc., John T. McDonald and Morton H. Meyerson.
Exhibit C
   
—    
   
Share Purchase Agreement dated December 10, 2002 by and among Sam Fatigato, John T. McDonald and Morton H. Meyerson.

6
EX-1 3 dex1.txt SHARE PURCHASE AGREEMENT A EXHIBIT A SHARE PURCHASE AGREEMENT SHARE PURCHASE AGREEMENT (the "Agreement"), dated as of December 6, 2002 by and among John T. Gillespie (the "Seller"), and Morton H. Meyerson and John T. McDonald (each, a "Purchaser" and collectively, the "Purchasers"). WITNESSETH: WHEREAS, the Seller owns 88,607 shares of common stock, par value $.01 per share (the "Perficient Stock") of Perficient, Inc., a Delaware corporation (the "Company"); and WHEREAS, the Seller desires to sell to Morton H. Meyerson 59,071 shares of Perficient Stock and to John T. McDonald 29,536 shares of Perficient Stock and each Purchaser desires to purchase such Perficient Stock from such Seller on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth below and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS The following terms used in this Agreement shall have the meaning set forth below: Section 1.1 "Closing" shall have the meaning set forth in Section 3.1 hereof. Section 1.2 "Closing Date" shall mean December 10, 2002, or such other date upon which the Closing is held. ARTICLE 2 PURCHASE AND SALE OF SHARES Section 2.1 Purchase and Sale of Perficient Stock. At the Closing, the Seller shall sell to each Purchaser and each Purchaser shall purchase from each Seller the number of shares of Perficient Stock indicated in the recitals hereto. The Seller shall transfer all of its right, title and interest in and to such Perficient Stock to the such Purchasers free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against the Perficient Stock. Section 2.2 Purchase Price. The purchase price for the Perficient Stock is $.375 per share. Section 2.3 Payment of Purchase Price. As payment for the Perficient Stock, each Purchaser shall deliver to the Seller at the Closing, a check or wire transfer (at Seller's option) in the amount 1 equal to the number of shares purchased by such Purchaser from such Seller, times (b) $.375 (the "Closing Payment"). ARTICLE 3 CLOSING Section 3.1 Closings. The consummation of the sales of Perficient stock contemplated herein (the "Closing") shall take place on the Closing Date. Section 3.2 Items To Be Delivered the Seller. At the Closing, the Seller shall deliver to each Purchaser a share certificate duly endorsed representing the Perficient Stock purchased by such Purchaser hereunder. All of the above-mentioned documents shall be in form and substance satisfactory to such Purchasers. Section 3.3 Items to be Delivered by Purchasers. At the Closing and subject to the terms and conditions contained herein, each Purchaser shall deliver to the Seller the Closing Payment for the Perficient Stock purchased by such Purchaser. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER The Seller hereby represents and warrants to each Purchaser as follows: Section 4.1 Ownership of Perficient Stock. The Seller is the sole record and beneficial owner of all of the issued and outstanding Perficient Stock, and it has good and valid title to such Perficient Stock free and clear of any lien, security interest or encumbrance of any nature and free of any claim by any person to or against such Perficient Stock. Seller has the full right, power and authority to sell, assign, transfer and convey the Perficient Stock to Purchaser as provided herein. Section 4.2 Authorization, Validity and Enforceability. This Agreement has been duly authorized by the Seller. This Agreement constitutes the valid and binding obligation of the Seller, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement will not violate or result in a default under any provision of any material commitment, agreement or instrument to which the Seller is a party or by which the Seller is bound and will not contravene any law, rule or regulation any administrative agency or governmental body, or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to the Seller. Section 4.3 Litigation. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting the Seller which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. 2 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER Each Purchaser hereby represents and warrants to the Seller as follows: Section 5.1 Validity and Enforceability. This Agreement constitutes the and binding obligation of such Purchaser, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement will not violate or result in a default under any provisions of any material commitment, agreement or instrument to which such Purchaser is a party or by which such Purchaser is bound, and will not contravene any law, rule or regulation of any administrative agency or governmental body or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to Purchaser. Section 5.2 Litigation. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting such Purchaser, which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. ARTICLE 6 CONDITIONS TO CLOSING Section 6.1 Purchaser's Obligations. Each Purchaser's obligations to consummate the transactions contemplated hereby are conditioned upon the satisfaction by Seller of Section 3.2 hereof. Section 6.2 Seller's Obligations. The Seller's obligation to consummate the transactions contemplated hereby are conditioned upon the satisfaction by each Purchaser of Section 3.3 hereof. ARTICLE 7 ARBITRATION Section 7.1 Arbitration. All disputes under this Agreement shall be settled by arbitration in Austin, Texas pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules which rules are deemed to be incorporated by reference herein, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. ARTICLE 8 MISCELLANEOUS Section 8.1 Survival of Agreements. All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement and the sale and delivery of the Perficient Stock pursuant hereto. The foregoing provisions with regard to the survival of the warranties and representations of the parties in this Agreement is meant only to establish the period of time within which a claim for breach of such warranties and representations may be brought, and is not intended to extend the applicability of such warranties and representations to events or circumstances which may occur after the Closing Date. 3 Section 8.2 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby. Section 8.3 [Intentionally deleted.] Section 8.4 Notices. All notices, requests, consents, or other communication hereunder shall be in writing and shall be delivered personally or by courier or mailed by first class registered or certified mail. Section 8.5 Captions and Section Headings. As used herein, captions and section headings are for convenience only and are not a part of this Agreement and shall not be used in construing it. Section 8.6 Entire Agreement. This Agreement and the other documents delivered pursuant hereto and thereto, or incorporated by reference herein, contain the entire agreement between the parties hereto concerning the transactions contemplated herein and supersede all prior agreements or understandings between the parties hereto relating to the subject matter hereof. Section 8.7 Additional Documents. The parties hereto will, at any time after the date hereof, sign, execute and deliver, or cause others so to do, all such powers of attorney, deeds, assignments, documents and instruments and do or cause to be done all such other acts and deeds as may be necessary or proper to carry out the transactions contemplated by this Agreement. Section 8.8 Amendment. This Agreement may be amended, supplemented or interpreted at any time, but only by a written agreement executed by the parties hereto. Section 8.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Section 8.10 Severability. If any one or more of the provisions of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, each party waives any provision of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect. Section 8.11 Governing Law. This Agreement shall be governed by the laws of the State of Texas. Section 8.12 Waiver of rights. The Seller and each of the Purchasers hereby waives any rights of first refusal, co-sale or similar rights they may have regarding the sale by Seller of shares of Perficient Stock pursuant hereto and hereby consent to all transactions contemplated hereby. 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. SELLER - ---------------------------- John T. Gillespie PURCHASERS: - ---------------------------- Morton H. Meyerson - ---------------------------- John T. McDonald 5 EX-2 4 dex2.txt SHARE PURCHASE AGREEMENT B EXHIBIT B SHARE PURCHASE AGREEMENT SHARE PURCHASE AGREEMENT (the "Agreement"), dated as of December 5, 2002 by and among the persons listed as Sellers on the signature pages hereto (each, a "Seller" and collectively, the "Sellers"), and Morton H. Meyerson and John T. McDonald (each, a "Purchaser" and collectively, the "Purchasers"). WITNESSETH: WHEREAS, each Seller owns the number of shares of common stock, par value $.01 per share (including the Escrowed Shares (as defined below), the "Perficient Stock") of Perficient, Inc., a Delaware corporation (the "Company"), set forth under the heading "Perficient Stock" opposite such Seller's name on Exhibit I hereto; and WHEREAS, each Seller desires to sell to each Purchaser the number of shares of Perficient Stock indicated on Exhibit I hereto opposite such Seller's name under the headings "Perficient Stock to be sold to Morton Meyerson" and "Perficient Stock to be sold to John McDonald" and each Purchaser desires to purchase such Perficient Stock from such Seller on the terms and conditions set forth herein; and WHEREAS, each Seller is party to that certain Agreement and Plan of Merger, dated as of September 30, 2001 (the "Merger Agreement"), by and among the Company, Perficient Vertecon, Inc., Primary Webworks, Inc. d/b/a Vertecon, Inc. and certain shareholders of Vertecon, Inc.; and WHEREAS, pursuant to the terms of the Merger Agreement, 25% of each Seller's shares (the "Escrowed Shares") are being held in escrow until April 25, 2003 and are subject to forfeiture in certain events; NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth below and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS The following terms used in this Agreement shall have the meaning set forth below: Section 1.1 "First Closing" shall have the meaning set forth in Section 3.1 hereof. "Second Closing" shall have the meaning set forth in Section 3.1 hereof. Section 1.2 "First Closing Date" shall mean December 10, 2002, or such other date upon which the First Closing is held. "Second Closing Date" shall mean May 15, 2003, or such other date on which the Second Closing is held (such date being at least 10 business days following the settlement of the escrow fund (the "Escrow Fund") established pursuant to the Merger Agreement). 1 ARTICLE 2 PURCHASE AND SALE OF SHARES Section 2.1 Purchase and Sale of Perficient Stock. At the First Closing, each Seller shall sell to each Purchaser and each Purchaser shall purchase from each Seller the number of shares of Perficient Stock indicated on Exhibit I hereto opposite such Seller's name under the headings "Perficient Stock to be sold to Morton Meyerson" and "Perficient Stock to be sold to John McDonald". Each Seller shall transfer all of its right, title and interest in and to such Perficient Stock to the such Purchasers free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against the Perficient Stock; notwithstanding the foregoing, at the First Closing the Sellers shall transfer the Escrowed Shares subject to the terms of the escrow provisions of the Merger Agreement, and the Purchasers hereby agree to abide by such terms (and the related Escrow Agreement) with respect to such Perficient Stock. Section 2.2 Purchase Price. The purchase price for the Perficient Stock is $.375 per share. Section 2.3 Payment of Purchase Price. As payment for the Perficient Stock, each Purchaser shall deliver to each Seller (i) at the First Closing, a check or wire transfer (at Seller's option) in the amount equal to 85% of the product of (a) the number of shares purchased by such Purchaser from such Seller, times (b) $.375 (the "First Closing Payment"), and (ii) at the Second Closing, a check or wire transfer (at Seller's option) in the amount equal to 15% of the product of (a) the number of shares purchased by such Purchaser from such Seller, times (b) $.375 (the "Second Closing Payment"), indicated on Exhibit I; provided, however, that in the event any Seller cannot on the Second Closing Date deliver to a Purchaser the full number of Escrowed Shares indicated for such Purchaser opposite such Seller's name on Exhibit I (under the headings "Meyerson Escrowed Shares" and "McDonald Escrowed Shares," respectively), free and clear of all encumbrances, then the Second Closing Payment due such Seller shall be reduced by $.375 for each such Escrowed Share not delivered; and provided further that, in the event any Seller delivers to a Purchaser a number of Escrowed Shares less than the Minimum Escrowed Shares Amount for such Seller indicated on Exhibit I (under the headings "Meyerson Minimum Escrowed Shares Amount" and "McDonald Minimum Escrowed Shares Amount," respectively), then, in such event, such Seller shall refund to such Purchaser $.375 for each such Escrowed Share not delivered (the "Refund Payment"). ARTICLE 3 CLOSING Section 3.1 Closings. The consummation of the sales of Perficient stock contemplated herein (the "First Closing") shall take place on the First Closing Date. The consummation of the delivery of any Escrowed Shares not delivered at the First Closing and any related 2 payments required hereby (the "Second Closing") shall take place on the Second Closing Date. Section 3.2 Items To Be Delivered by Sellers. At the First Closing, each Seller shall deliver to each Purchaser a share certificate duly endorsed representing the Perficient Stock purchased by such Purchaser hereunder. With respect to the Escrowed Shares, each Seller shall deliver to each Purchaser a fully executed stock power transferring all of such Seller's right, title and interest in such shares, subject only to the terms of the escrow provisions of the Merger Agreement. At the Second Closing, each Seller shall deliver to each Purchaser (i) a share certificate duly endorsed representing the Escrowed Shares not delivered at the First Closing, and (ii) if required under the terms of Section 2.3, a check or wire transfer (at such Purchaser's option) in the amount of the Refund Payment. All of the above-mentioned documents shall be in form and substance satisfactory to such Purchasers. Section 3.3 Items to be Delivered by Purchasers. At the First and Second Closings and subject to the terms and conditions contained herein (including, without limitation, the purchase price adjustment provisions of Section 2.3), each Purchaser shall deliver to each Seller the First Closing Payment and Second Closing Payment, respectively, in the amount set forth under such headings opposite such Seller's name on Exhibit I hereto. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER Each Seller hereby represents and warrants to each Purchaser as follows: Section 4.1 Ownership of Perficient Stock. Such Seller is the sole record and beneficial owner of all of the issued and outstanding Perficient Stock, and it has good and valid title to such Perficient Stock free and clear of any lien, security interest or encumbrance of any nature and free of any claim by any person to or against such Perficient Stock. Such Seller has the full right, power and authority to sell, assign, transfer and convey the Perficient Stock to Purchaser as provided herein. Notwithstanding the foregoing representations set forth in this Section 4.1, such Seller's Escrowed Shares are subject to the certain restrictions and to risk of forfeiture pursuant to the terms of the escrow provisions of the Merger Agreement. Section 4.2 Authorization, Validity and Enforceability. This Agreement has been duly authorized by such Seller. This Agreement constitutes the valid and binding obligation of such Seller, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement will not violate or result in a default under any provision of any material commitment, agreement or instrument to which such Seller is a party or by which such Seller is bound and will not contravene any law, rule or regulation any administrative agency or governmental body, or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to such Seller. 3 Section 4.3 Litigation. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting such Seller which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER Each Purchaser hereby represents and warrants to each Seller as follows: Section 5.1 Validity and Enforceability. This Agreement constitutes the and binding obligation of such Purchaser, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement will not violate or result in a default under any provisions of any material commitment, agreement or instrument to which such Purchaser is a party or by which such Purchaser is bound, and will not contravene any law, rule or regulation of any administrative agency or governmental body or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to Purchaser. Section 5.2 Litigation. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting such Purchaser, which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. Section 5.3 No Corporate Sale. To the best of their knowledge, information and belief, the Company has not received any offer, nor is it involved in any active discussions regarding a "Corporate Sale" (as that term is defined in 1.05(f) of the Merger Agreement). Section 5.4 Securities Law Matters. Purchaser is purchasing the Perficient Stock for investment purposes and does not intend to resell or otherwise dispose of all or any part of the Perficient Stock unless and until Purchaser determines, at some future date, that changed circumstances, not in contemplation at the time of this purchase, makes such disposition advisable, and that such disposition is in compliance with all federal and state securities laws. Purchaser is not purchasing the Perficient Stock in connection with the distribution of securities by Perficient. ARTICLE 6 CONDITIONS TO CLOSING Section 6.1 Purchaser's Obligations. Each Purchaser's obligations to consummate the transactions contemplated hereby are conditioned upon the satisfaction by Seller of Section 3.2 hereof. Section 6.2 Sellers' Obligations. Each Seller's obligation to consummate the transactions contemplated hereby are conditioned upon (i) the satisfaction by each Purchaser of Section 3.3 hereof, and (ii) the receipt by Brian Matthews from the Company and Steelcase Inc. of a release of the personal guaranty delivered by Mr. Matthews guaranteeing certain obligations of the Company under the furniture lease dated [date], between Steelcase Inc. and the Company. 4 ARTICLE 7 ARBITRATION Section 7.1 Arbitration. All disputes under this Agreement shall be settled by arbitration in Austin, Texas pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules which rules are deemed to be incorporated by reference herein, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. ARTICLE 8 MISCELLANEOUS Section 8.1 Survival of Agreements. All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement and the sale and delivery of the Perficient Stock pursuant hereto. The foregoing provisions with regard to the survival of the warranties and representations of the parties in this Agreement is meant only to establish the period of time within which a claim for breach of such warranties and representations may be brought, and is not intended to extend the applicability of such warranties and representations to events or circumstances which may occur after the Second Closing Date. Section 8.2 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby. Section 8.3 [Intentionally deleted.] Section 8.4 Notices. All notices, requests, consents, or other communication hereunder shall be in writing and shall be delivered personally or by courier or mailed by first class registered or certified mail. Section 8.5 Captions and Section Headings. As used herein, captions and section headings are for convenience only and are not a part of this Agreement and shall not be used in construing it. Section 8.6 Entire Agreement. This Agreement and the other documents delivered pursuant hereto and thereto, or incorporated by reference herein, contain the entire agreement between the parties hereto concerning the transactions contemplated herein and supersede all prior agreements or understandings between the parties hereto relating to the subject matter hereof. Section 8.7 Additional Documents. The parties hereto will, at any time after the date hereof, sign, execute and deliver, or cause others so to do, all such powers of attorney, deeds, assignments, documents and instruments and do or cause to be done all such other acts and deeds as may be necessary or proper to carry out the transactions contemplated by this Agreement. Section 8.8 Amendment. This Agreement may be amended, supplemented or interpreted at any time, but only by a written agreement executed by the parties hereto. 5 Section 8.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Section 8.10 Severability. If any one or more of the provisions of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, each party waives any provision of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect. Section 8.11 Governing Law. This Agreement shall be governed by the laws of the State of Texas. Section 8.12 Waiver of rights. Each Seller and each of the Purchasers hereby waives any rights of first refusal, co-sale or similar rights they may have regarding the sale by Seller of shares of Perficient Stock pursuant hereto and hereby consent to all transactions contemplated hereby. 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. SELLERS - ---------------------------- Charlie Wiegert - ---------------------------- Carol Matthews - ---------------------------- Brian Matthews - ---------------------------- Welton J.L. Brison - ---------------------------- CDM Ventures - ---------------------------- Tom Hesterman - ---------------------------- Tim Wilson - ---------------------------- CBC Distribution and Marketing, Inc. - ---------------------------- PURCHASERS: - ---------------------------- Morton H. Meyerson - ---------------------------- John T. McDonald 7 EX-3 5 dex3.txt SHARE PURCHASE AGREEMENT C EXHIBIT C SHARE PURCHASE AGREEMENT SHARE PURCHASE AGREEMENT (the "Agreement"), dated as of December 6, 2002 by and among Sam Fatigato (the "Seller"), and Morton H. Meyerson and John T. McDonald (each, a "Purchaser" and collectively, the "Purchasers"). WITNESSETH: WHEREAS, the Seller owns 649,100 shares of common stock, par value $.001 per share (the "Perficient Stock") of Perficient, Inc., a Delaware corporation (the "Company"); and WHEREAS, the Seller desires to sell to Morton H. Meyerson 266,667 shares of Perficient Stock and to John T. McDonald 133,333 shares of Perficient Stock and each Purchaser desires to purchase such Perficient Stock from such Seller on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the promises and the mutual covenants set forth below and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS The following terms used in this Agreement shall have the meaning set forth below: Section 1.1 "Closing" shall have the meaning set forth in Section 3.1 hereof. Section 1.2 "Closing Date" shall mean January 2, 2003. Section 1.3 "Escrow Agent" shall mean McCarter & English, LLP, counsel to the Company. ARTICLE 2 PURCHASE AND SALE OF SHARES Section 2.1 Purchase and Sale of Perficient Stock. At the Closing, the Seller shall sell to each Purchaser and each Purchaser shall purchase from each Seller the number of shares of Perficient Stock indicated in the recitals hereto. The Seller shall transfer all of its right, title and interest in and to such Perficient Stock to the such Purchasers free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against the Perficient Stock. Section 2.2 Purchase Price. The purchase price for the Perficient Stock is $.375 per share. Section 2.3 Payment of Purchase Price. As payment for the Perficient Stock, each Purchaser shall deliver, for the benefit of the Seller to the Seller at the Closing, a check or wire transfer (at 1 Seller's option) in the amount equal to the number of shares purchased by such Purchaser from such Seller, times (b) $.375 (the "Closing Payment"). ARTICLE 3 CLOSING Section 3.1 Closings. The consummation of the sale of Perficient stock contemplated herein (the "Closing") shall take place on the Closing Date. Section 3.2 Items To Be Delivered by the Seller. On the date of this Agreement, the Seller shall deliver to the Escrow Agent share certificates, duly endorsed representing the Perficient Stock to be purchased by each Purchaser. In addition, the parties shall execute the Escrow Agreement attached hereto as Exhibit A (the "Escrow Agreement"). At the Closing, the Escrow Agent, upon receipt of a notice by the Purchasers that the Closing Payment has been wired to the Seller, including federal funds wire transfer confirmation number in accordance with the Purchase Agreement, shall deliver to each Purchaser a share certificate duly endorsed representing the Perficient Stock purchased by such Purchaser hereunder. The Escrow Agent shall have no other responsibilities other than as specifically set forth in the Escrow Agreement, and shall make such deliveries without question upon receipt of such notice. All of the above-mentioned documents shall be in form and substance satisfactory to such Purchasers. Section 3.3 Items to be Delivered by Purchasers. At the Closing and subject to the terms and conditions contained herein, each Purchaser shall deliver to the Seller the Closing Payment for the Perficient Stock purchased by such Purchaser. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER The Seller hereby represents and warrants to each Purchaser as follows: Section 4.1 Ownership of Perficient Stock. The Seller is the sole record and beneficial owner of all of the issued and outstanding Perficient Stock, and it has good and valid title to such Perficient Stock free and clear of any lien, security interest or encumbrance of any nature and free of any claim by any person to or against such Perficient Stock. Seller has the full right, power and authority to sell, assign, transfer and convey the Perficient Stock to Purchaser as provided herein. Section 4.2 Authorization, Validity and Enforceability. Each of this Agreement and the Escrow Agreement has been duly authorized by the Seller. Each of this Agreement and the Escrow Agreement constitutes the valid and binding obligation of the Seller, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement and the Escrow Agreement will not violate or result in a default under any provision of any material commitment, agreement or instrument to which the Seller is a party or by which the Seller is 2 bound and will not contravene any law, rule or regulation any administrative agency or governmental body, or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to the Seller. Section 4.3 Litigation. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting the Seller which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER Each Purchaser hereby represents and warrants to the Seller as follows: Section 5.1 Validity and Enforceability. Each of this Agreement and the Escrow Agreement has been duly authorized by each Purchaser. Each of this Agreement and the Escrow Agreement constitutes the binding obligation of such Purchaser, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement and the Escrow Agreement will not violate or result in a default under any provisions of any material commitment, agreement or instrument to which such Purchaser is a party or by which such Purchaser is bound, and will not contravene any law, rule or regulation of any administrative agency or governmental body or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to Purchaser. Section 5.2 Litigation. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting such Purchaser, which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. ARTICLE 6 CONDITIONS TO CLOSING Section 6.1 Purchaser's Obligations. Each Purchaser's obligations to consummate the transactions contemplated hereby is conditioned upon the satisfaction by Seller of Section 3.2 hereof. Section 6.2 Seller's Obligations. The Seller's obligation to consummate the transactions contemplated hereby is conditioned upon the satisfaction by each Purchaser of Section 3.3 hereof. ARTICLE 7 ARBITRATION Section 7.1 Arbitration. All disputes under this Agreement shall be settled by arbitration in Austin, Texas pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules which rules are deemed to be incorporated by reference herein, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 3 ARTICLE 8 MISCELLANEOUS Section 8.1 Survival of Agreements. All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement and the sale and delivery of the Perficient Stock pursuant hereto. The foregoing provision with regard to the survival of the warranties and representations of the parties in this Agreement is meant only to establish the period of time within which a claim for breach of such warranties and representations may be brought, and is not intended to extend the applicability of such warranties and representations to events or circumstances which may occur after the Closing Date. Section 8.2 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby. Section 8.3 Price Match. Anything contained in this Agreement to the contrary notwithstanding, if between the date of this Agreement and March 15, 2003, (i) any Purchaser, the Company and/or any designee of the Company, as applicable, consummate a transaction, subject to the limitation set forth in the last line of this Section 8.3, whereby any of them purchase Perficient Stock (a "Sale") and (ii) the aggregate proceeds per share to the seller in the Sale exceeds $.375 per share sold (as appropriately adjusted to take into account any stock splits, stock dividends or similar recapitalizations) (the highest such excess per share resulting from any Sale being referred to herein as the "Excess Amount"), then, on March 17, 2003, Seller shall be paid by each Purchaser by check or wire transfer (at Seller's option) cash in the amount equal to the product of the Excess Amount multiplied by the number of Perficient Shares purchased by such Purchaser from Seller under this Agreement. Notwithstanding the above, a Sale as defined herein shall only include transaction that result in the purchase of up to 600,000 additional shares of Perficient Stock, in the aggregate. Accordingly, the Seller shall only be entitled to receive the payment of any Excess Amount as a result of the purchase by the Purchaser, in one or more transactions, of the first 600,000 shares of Perficient Stock (if any) purchased after the date of the Closing. Section 8.4 Notices. All notices, requests, consents, or other communication hereunder shall be in writing and shall be delivered personally or by courier or mailed by first class registered or certified mail. Section 8.5 Captions and Section Headings. As used herein, captions and section headings are for convenience only and are not a part of this Agreement and shall not be used in construing it. Section 8.6 Entire Agreement. This Agreement and the other documents delivered pursuant hereto and thereto, or incorporated by reference herein, contain the entire agreement between the parties hereto concerning the transactions contemplated herein and supersede all prior agreements or understandings between the parties hereto relating to the subject matter hereof. Section 8.7 Additional Documents. The parties hereto will, at any time after the date hereof, sign, execute and deliver, or cause others so to do, all such powers of attorney, deeds, assignments, 4 documents and instruments and do or cause to be done all such other acts and deeds as may be necessary or proper to carry out the transactions contemplated by this Agreement. Section 8.8 Amendment. This Agreement may be amended, supplemented or interpreted at any time, but only by a written agreement executed by the parties hereto. Section 8.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Section 8.10 Severability. If any one or more of the provisions of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, each party waives any provision of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect. Section 8.11 Governing Law. This Agreement shall be governed by the laws of the State of Texas. Section 8.12 Waiver of rights. The Seller and each of the Purchasers hereby waives any rights of first refusal, co-sale or similar rights they may have regarding the sale by Seller of shares of Perficient Stock pursuant hereto and hereby consent to all transactions contemplated hereby. 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. SELLER - ---------------------------- Sam Fatigato PURCHASERS: - ---------------------------- Morton H. Meyerson - ---------------------------- John T. McDonald 6 -----END PRIVACY-ENHANCED MESSAGE-----