As filed with the Securities and Exchange Commission on September 30, 2021
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
THE SECURITIES ACT OF 1933
EPAM Systems, Inc.
(Exact Name of Registrant as Specified in Its Charter)
(State or Other Jurisdiction of
Incorporation or Organization)
41 University Drive, Suite 202
|(Address of Principal Executive Offices)||(Zip Code)|
EPAM Systems, Inc. 2021 Employee Stock Purchase Plan
(Full Title of the Plan)
Senior Vice President, General Counsel and
EPAM Systems, Inc.
41 University Drive, Suite 202
Newtown, Pennsylvania 18940
(Name and Address of Agent For Service)
(Telephone Number, Including Area Code, of Agent for Service)
Veronica M. Wissel, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller
reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
|Large accelerated filer||☒||Accelerated filer||☐|
|Non-accelerated filer||☐||Smaller reporting company||☐|
|Emerging growth company||☐|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
|Title of Securities
to be Registered
per Share (2)
Offering Price (2)
Registration Fee (3)
Common Stock, par value $0.001 per share EPAM Systems, Inc. 2021 Employee Stock Purchase Plan
Represents the maximum number of shares of common stock, par value $0.001 per share (Common Stock), of EPAM Systems, Inc. (the Company or the Registrant) issuable pursuant to the EPAM Systems, Inc. 2021 Employee Stock Purchase Plan (the ESPP). Pursuant to Rule 416 of the General Rules and Regulations under the Securities Act of 1933, as amended (the Securities Act), there are also registered hereunder such indeterminate number of additional shares of Common Stock as may become subject to awards under the Plans as a result of the antidilution provisions contained therein.
The registration fee with respect to these shares of Common Stock has been computed in accordance with paragraphs (c) and (h) of Rule 457 of the General Rules and Regulations under the Securities Act, based upon the average of the reported high and low sale price of a share of Common Stock on the NYSE on September 28, 2021.
Rounded up to the nearest penny.
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Form S-8 instructions. The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule 428(b)(1).
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and Exchange Commission (the Commission) pursuant to the Securities and Exchange Act of 1934, as amended (the Exchange Act), Commission File No. 001-34063, are incorporated by reference herein:
(1) The Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as filed with the Commission on February 25, 2021;
(4) All reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act (other than the reports, or portions thereof, deemed to have been furnished and not filed with the Commission) since the end of the fiscal year covered by the Annual Report referred to in (1) above;
(5) All other reports filed with the Commission by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold; and
(6) The description of the Companys Common Stock contained in Exhibit 4.4 of the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as filed with the Commission on February 25, 2021, including any amendment thereto or report filed for the purpose of updating such description.
Any statement contained herein or made in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which is also incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the DGCL) provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or
completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
The Companys certificate of incorporation provides that no director shall be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation on liability is not permitted under the DGCL, as now in effect or as amended. Currently, Section 102(b)(7) of the DGCL requires that liability be imposed for the following:
any breach of the directors duty of loyalty to the Company or its stockholders;
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and
any transaction from which the director derived an improper personal benefit.
The Companys certificate of incorporation includes provisions that authorize and require the Company to indemnify its officers and directors to the fullest extent permitted under Delaware law, subject to limited exceptions. The Company has separate indemnification agreements with its directors and executive officers, which require it to indemnify these individuals to the fullest extent permitted by applicable law against liabilities that may arise by reason of their service to the Company, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
Item 7. Exemption for Registration Claimed.
Item 8. Exhibits.
|4.1||Third Amended and Restated Certificate of Incorporation of EPAM Systems, Inc. (incorporated by reference from Exhibit 3.1 to the Registrants Current Report on Form 10-K, filed on March 30, 2012)|
|4.2||Amended and Restated Bylaws of EPAM Systems, Inc. (incorporated by reference from Exhibit 3.2 to the Registrants Current Report on Form 8-K, filed on September 15, 2017)|
|5.1||Opinion of Davis Polk & Wardwell LLP|
|23.1||Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm|
|23.2||Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)|
|24.1||Power of Attorney (included in signature page)|
|99.1||EPAM Systems, Inc. Employee Stock Purchase Plan (incorporated by reference from Exhibit 10.1 to the Registrants Current Report on Form 8-K, filed on June 10, 2021)|
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
To include any prospectus required by Section 10(a)(3) of the Securities Act;
To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement;
To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newtown, Commonwealth of Pennsylvania, on September 30, 2021.
|EPAM SYSTEMS, INC.|
|By:||/s/ Arkadiy Dobkin|
|Title:||Chairman, Chief Executive Officer and President|
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Jason Peterson and Edward Rockwell, and each of them, the true and lawful attorneys-in-fact of the undersigned, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this registration statement and any or all amendments to this registration statement, including post-effective amendments, and registration statements filed pursuant to Rules 413 or 462 under the Securities Act of 1933, and to file or cause to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys or attorneys-in-fact or any of them or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons on September 30, 2021 in the capacities indicated.
|Arkadiy Dobkin||Chairman, Chief Executive Officer and President|
|Jason Peterson||Senior Vice President, Chief Financial Officer and Treasurer|
|Gary Abrahams||Vice President, Corporate Controller, Chief Accounting Officer|
|Jill B. Smart||Director|
|Richard Michael Mayoras||Director|
|Robert E. Segert||Director|
|Ronald P. Vargo||Director|
Exhibits 5.1 and 23.2
|Davis Polk & Wardwell LLP||212 450 4000 tel|
|450 Lexington Avenue||212 701 5800 fax|
|New York, NY 10017|
OPINION OF DAVIS POLK & WARDWELL LLP
SEPTEMBER 30, 2021
EPAM Systems, Inc.
41 University Drive, Suite 202
Newtown, Pennsylvania, 18940
Ladies and Gentlemen:
We have acted as special counsel to EPAM Systems, Inc., a Delaware corporation (the Company), and are delivering this opinion in connection with the Companys Registration Statement on Form S-8 (the Registration Statement) filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, for the registration of 900,000 shares (the Shares) of the Companys common stock, par value $0.001 per share, issuable pursuant to the EPAM Systems, Inc. 2021 Employee Stock Purchase Plan (the Plan).
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.
On the basis of the foregoing, we are of the opinion that the Shares have been duly authorized and, when and to the extent issued pursuant to the Plan upon receipt by the Company of the consideration for the Shares specified therein, will be validly issued, fully paid and non-assessable.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
|Very truly yours,|
|/s/ Davis Polk & Wardwell LLP|
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 25, 2021, relating to the financial statements of EPAM Systems, Inc. and the effectiveness of EPAM Systems, Inc.s internal control over financial reporting, appearing in the Annual Report on Form 10-K of EPAM Systems, Inc. for the year ended December 31, 2020.
/s/ DELOITTE & TOUCHE LLP
September 30, 2021