As filed with the Securities and Exchange Commission on July 29, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WHITTMAN-HART, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 7379 36-3797833
(State or other (Primary Standard (I.R.S. Employer
jurisdiction Industrial Identification No.)
of incorporation or Classification Code
organization) Number)
311 SOUTH WACKER DRIVE
SUITE 3500
CHICAGO, ILLINOIS 60606-6618
(312) 922-9200
(Address, including zip code, and telephone number, including area code, of
registrant's executive offices)
ROBERT F. BERNARD
CHIEF EXECUTIVE OFFICER
WHITTMAN-HART, INC.
311 SOUTH WACKER DRIVE, SUITE 3500
CHICAGO, ILLINOIS 60606-6618
(312) 922-9200
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies To:
NEAL J. WHITE, P.C.
McDermott, Will & Emery
227 West Monroe Street, Suite 3100
Chicago, Illinois 60606-5096
(312) 372-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
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. /X/
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. / /
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. / / __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
Calculation of Registration Fee
Proposed Proposed maximum
Title of each Amount to be maximum aggregate offering Amount of
class of registered offering price(2) registrat
securities to be (1) price per ion fee
registered share(2)
Common Stock 50,000 $47.562 $2,378,100 $701.55
(par value $.001 shares
per share)
(1) Maximum number of shares that may be offered. Does not reflect that 2
for one stock split to be effected on July 31, 1998. Pursuant to Rule 416
of the Securities Act of 1933, as amended, in addition to the shares set
forth in the table, the amount to be registered includes an in determinate
number of shares issuable as a result of stock splits, stock dividends and
anti-dilution provisions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low sales
prices of the Common Stock on the Nasdaq National Market on July 22, 1998.
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 COMMISSION ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED July 29, 1998
PROSPECTUS
100,000 SHARES
WHITTMAN-HART, INC.
COMMON STOCK
This Prospectus covers the sale from time to time of up to 100,000
issued and outstanding shares (the "Shares") of Common Stock, par value
$0.001 per share ("Common Stock"), of Whittman-Hart, Inc., a Delaware
corporation (the "Company"), by certain stockholders of the Company (the
"Selling Stockholders"). The Selling Stockholders or their respective
pledgees, donees, transferees or other successors in interest may from
time to time sell the Shares directly or through one or more broker-
dealers, in one or more transactions on the Nasdaq National Market, in
privately negotiated transactions or otherwise, at prices related to the
prevailing market prices or at negotiated prices. See "Plan of
Distribution."
The Company will not receive any of the proceeds from the sale of the
Shares. The Company has agreed with the Selling Stockholders to register the
Shares offered hereby and to pay the expenses incident to the registration
and offering of the Shares, except that the Selling Stockholders will pay any
applicable underwriting commissions and expenses, brokerage fees and transfer
taxes, as well as the fees and disbursements of counsel to and experts for
the Selling Stockholders.
The Company's Common Stock is quoted on the Nasdaq National Market under
the symbol "WHIT." On July 23, 1998, the last reported sale price of the
Common Stock on the Nasdaq National Market was $47 15/16 per share.
SEE RISK FACTORS STARTING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS
TO BE CONSIDERED BY PROSPECTIVE INVESTORS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. NEITHER THIS PROSPECTUS NOR ANY SUPPLEMENT HERETO
CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE SHARES
OF COMMON STOCK OFFERED HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO
WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER. THE DELIVERY OF THIS PROSPECTUS OR
ANY SUPPLEMENT HERETO, SHALL NOT AT ANY TIME, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN
THIS PROSPECTUS, ANY SUPPLEMENT HERETO, THE INFORMATION INCORPORATED BY
REFERENCE HEREIN OR THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
The date of this Prospectus is July __, 1998
TABLE OF CONTENTS
Available Information . . . . . . . . . . . . . . . . . . . 2
Documents Incorporated by Reference . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . 4
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . 7
The Selling Stockholders . . . . . . . . . . . . . . . . . 8
Plan of Distribution . . . . . . . . . . . . . . . . . . . 9
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . 10
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a Registration Statement on Form S-3 under the Securities Act
of 1933, as amended (the "Securities Act"), covering the sale of the Shares
by the Selling Stockholders from time to time. This Prospectus, which
constitutes part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to the Company and the
Shares offered hereby, reference is made to the Registration Statement,
including the exhibits and schedules thereto. Statements contained in this
Prospectus as to the contents of any contract, agreement or any other
document referred to herein are not necessarily complete; with respect to
each such contract, agreement or document filed as an exhibit to the
Registration Statement, reference is made to such exhibit for a more complete
description of the matters involved, and each such statement shall be deemed
qualified in its entirety by such reference. The Registration Statement,
including the exhibits and schedules thereto, may be inspected without charge
at the Commission's principal office at 450 Fifth Street, N.W., Washington,
D.C. 20549 and copies of any of them or any part thereof may be obtained from
such office, upon payment of the fees prescribed by the Commission. The
Registration Statement, including the exhibits and schedules thereto, is also
available on the Commission's Web site at http://www.sec.gov.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Commission. Such reports, proxy material and other information
concerning the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 or at its regional offices at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates or be accessed electronically on
the Commission's home page on the World Wide Web at http://www.sec.gov. The
Company's Common Stock is listed on the Nasdaq National Market, and such
reports, proxy material and other information can also be inspected at the
offices of The Nasdaq Stock Market, Inc., 1735 K Street, N.W., Washington,
D.C. 20549.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission by Whittman-Hart (File
No. 0-28166) are incorporated into this Prospectus by reference:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(ii) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
(iii) the Company's Registration Statement on Form 8-A;
(iv) the Company's Current Reports on Form 8-K dated April 13, 1998
and May 4, 1998; and
(v) the Company's Schedule 14A filed with the Commission on April 28,
1998.
All documents filed by Whittman-Hart pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, after the date of this Prospectus and prior
to the termination of the offering hereunder shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated by reference herein shall be deemed to be 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 to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. COPIES OF THESE DOCUMENTS (OTHER THAN
EXHIBITS THERETO UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY
REFERENCE INTO SUCH DOCUMENTS) ARE AVAILABLE WITHOUT CHARGE, UPON WRITTEN OR
ORAL REQUEST BY A PERSON TO WHOM THIS PROSPECTUS HAS BEEN DELIVERED
(INCLUDING ANY BENEFICIAL OWNER), FROM WHITTMAN-HART, INC., 311 SOUTH WACKER
DRIVE, 35TH FLOOR, CHICAGO, ILLINOIS 60606; TELEPHONE NUMBER (312) 922-9200;
ATTENTION: DAVID P. SHELOW. IN ORDER TO ENSURE TIMELY DELIVERY OF THE
DOCUMENTS, ANY REQUEST SHOULD BE MADE AT LEAST FIVE BUSINESS DAYS PRIOR TO
THE DATE ON WHICH A FINAL INVESTMENT DECISION IS TO BE MADE.
THE COMPANY
Whittman-Hart, Inc. ("Whittman-Hart" or the "Company") provides
strategic information technology ("IT") business solutions designed to
improve its clients' productivity and competitive position. The Company
offers its clients a single source for a comprehensive range of services
required to successfully design, develop and implement integrated solutions
in the client/server, open systems, midrange and mainframe computing
environments. Among the services offered by the Company are systems
integration; strategic information technology planning; software development;
package software implementation; business process reengineering;
organizational change management; networking and connectivity; conventional
and multimedia documentation and training; design and implementation of
collaborative computing solutions; and design and implementation of
electronic commerce solutions (such as Internet/intranet and electronic data
interchange). The Company believes this breadth of services fosters long-
term client relationships, affords cross-selling opportunities and minimizes
the Company's dependence on any single technology.
Whittman-Hart is a registered trademark of the Company. The address of
the Company is 311 South Wacker Drive, 35th Floor, Chicago, Illinois 60606,
and its telephone number is (312) 922-9200.
RISK FACTORS
In addition to the other information set forth in this Prospectus,
prospective investors should carefully consider the following factors. This
Prospectus contains certain forward-looking statements that involve
substantial risks and uncertainties. When used in this Prospectus, the words
"anticipate," "believe," "estimate," and "expect" and similar expressions as
they relate to the Company or its management are intended to identify such
forward-looking statements. The Company's actual results, performance or
achievements could differ materially from the results, performance or
achievements expressed in, or implied by, these forward-looking statements.
Factors that could cause or contribute to such differences include, but are
not limited to, those described in the following section.
ATTRACTION AND RETENTION OF EMPLOYEES
The Company's business involves the delivery of professional services and is
labor-intensive. The Company's success depends in large part upon its ability
to attract, develop, motivate and retain highly skilled technical employees.
Qualified technical employees are in great demand and are likely to remain a
limited resource for the foreseeable future. There can be no assurance that
the Company will be able to attract and retain sufficient numbers of highly
skilled technical employees in the future. The Company has historically
experienced turnover rates which it believes are consistent with industry
norms. An increase in this rate could have a material adverse effect on the
Company's business, operating results and financial condition, including its
ability to secure and complete engagements.
MANAGEMENT OF GROWTH
The Company is currently experiencing rapid growth that has strained, and
could continue to strain, the Company's managerial and other resources. The
Company's ability to manage the growth of its operations will require it to
continue to improve its operational, financial and other internal systems and
to attract, develop, motivate and retain its employees. If the Company's
management is unable to manage growth or new employees are unable to achieve
anticipated performance levels, the Company's business, operating results and
financial condition could be materially and adversely affected.
PROJECT RISKS
Many of the Company's engagements involve projects that are critical to the
operations of its clients' businesses and provide benefits that may be
difficult to quantify. The Company's failure or inability to meet a client's
expectations in the performance of its services could result in a material
adverse change to the client's operations and therefore could give rise to
claims against the Company or damage the Company's reputation, adversely
affecting its business, operating results and financial condition.
VARIABILITY OF QUARTERLY OPERATING RESULTS
Variations in the Company's revenues and operating results occur from time to
time as a result of a number of factors, such as the significance of client
engagements commenced and completed during a quarter, the number of business
days in a quarter, timing of branch and service line expansion activities,
the timing of corporate expenditures and employee hiring and utilization
rates. The timing of revenues is difficult to forecast because the Company's
sales cycle can be relatively long and may depend on factors such as the size
and scope of assignments and general economic conditions. Because a high
percentage of the Company's expenses are relatively fixed, a variation in the
number of client assignments or the timing of the initiation or the
completion of client assignments, particularly at or near the end of any
quarter, can cause significant variations in operating results from quarter
to quarter and could result in losses to the Company. In addition, the
Company's engagements generally are terminable by the client without penalty.
Although the number of consultants can be adjusted to correspond to the
number of active projects, the Company must maintain a sufficient number of
senior consultants to oversee existing client projects and assist with the
Company's sales force in securing new client assignments.
COMPETITION
The market for information technology services includes a large number of
competitors, is subject to rapid change and is highly competitive. Primary
competitors include participants from a variety of market segments, including
"Big Six" accounting firms, systems consulting and implementation firms,
application software firms, service groups of computer equipment companies,
facilities management companies, general management consulting firms and
programming companies. In addition, the Company competes with its clients'
internal resources, particularly where these resources represent a fixed cost
to the client. Such competition may impose additional pricing pressures on
the Company. There can be no assurance that the Company will compete
successfully with its existing competitors or with any new competitors.
RELIANCE ON KEY EXECUTIVES
The success of the Company is highly dependent upon the efforts and abilities
of its executive officers, particularly Robert Bernard, the Company's founder
and Chief Executive Officer. Although these executives have entered into
employment agreements containing noncompetition, nondisclosure and
nonsolicitation covenants, these contracts do not guarantee that these
individuals will continue their employment with the Company. The loss of the
services of any of these key executives for any reason could have a material
adverse effect upon the Company's business, operating results and financial
condition.
RAPID TECHNOLOGICAL CHANGE; DEPENDENCE ON NEW SOLUTIONS
The Company's success will depend in part on its ability to develop
information technology solutions that keep pace with continuing changes in
information technology, evolving industry standards and changing client
preferences. There can be no assurance that the Company will be successful
in adequately addressing these developments on a timely basis or that, if
these developments are addressed, the Company will be successful in the
marketplace. In addition, there can be no assurance that products or
technologies developed by others will not render the Company's services
uncompetitive or obsolete. The Company's failure to address these
developments could have a material adverse effect on the Company's business,
operating results and financial condition.
RISKS RELATED TO ACQUISITIONS
The Company has expanded and intends to continue to expand its operations
through the acquisition of additional businesses. There can be no assurance
that the Company will be able to identify, acquire or profitably manage
additional businesses or successfully integrate any acquired businesses into
the Company without substantial expenses, delays or other operational or
financial problems. Further, acquisitions may involve a number of special
risks or effects, including diversion of management's attention, failure to
retain key acquired personnel, unanticipated events or circumstances, legal
liabilities and amortization of acquired intangible assets and other one-time
or ongoing acquisition related expenses, some or all of which could have a
material adverse effect on the Company's business, operating results and
financial condition. Client satisfaction or performance problems at one
acquired firm could have a material adverse impact on the reputation of the
Company as a whole. In addition, there can be no assurance that acquired
businesses, if any, will achieve anticipated revenues and earnings. The
failure of the Company to manage its acquisition strategy successfully could
have a material adverse effect on the Company's business, operating results
and financial condition.
SIGNIFICANT INFLUENCE OF PRINCIPAL STOCKHOLDER
As of July 31, 1998, Mr. Bernard beneficially owned approximately 25.5% of
the Company's outstanding shares of Common Stock. As a result, Mr. Bernard
will have significant influence over the outcome of matters requiring a
stockholder vote, including the election of the members of the Board of
Directors. Such control could adversely affect the market price of the
Common Stock or delay or prevent a change in control of the Company.
INTELLECTUAL PROPERTY RIGHTS
The Company's success is dependent upon certain methodologies it utilizes in
designing, installing and integrating computer software and systems and other
proprietary intellectual property rights. The Company's business includes
the development of custom software in connection with specific client
engagements. Ownership of such software is generally assigned to the client.
The Company also develops certain foundation and application software
products, or software "tools," which remain the property of the Company.
The Company relies upon a combination of nondisclosure and other contractual
arrangements and trade secret, copyright and trademark laws to protect its
proprietary rights and the proprietary rights of third parties from whom the
Company licenses intellectual property. The Company enters into
confidentiality agreements with its employees and limits distribution of
proprietary information. There can be no assurance that the steps taken by
the Company in this regard will be adequate to deter misappropriation of
proprietary information or that the Company will be able to detect
unauthorized use and take appropriate steps to enforce its intellectual
property rights.
Although the Company believes that its services do not infringe on the
intellectual property rights of others and that it has all rights necessary
to utilize the intellectual property employed in its business, the Company is
subject to the risk of claims alleging infringement of third-party
intellectual property rights. Any such claims could require the Company to
spend significant sums in litigation, pay damages, develop non-infringing
intellectual property or acquire licenses to the intellectual property which
is the subject of asserted infringement.
FIXED-BID PROJECTS
The Company undertakes certain projects billed on a fixed-bid basis, which is
distinguishable from the Company's principal method of billing on a time and
materials basis, and undertakes other projects on a fee-capped basis. The
failure of the Company to complete such projects within budget or below the
cap would expose the Company to risks associated with cost overruns, which
could have a material adverse effect on the Company's business, operating
results and financial condition.
STOCK PRICE VOLATILITY
The market price of the Common Stock has and could continue to fluctuate
substantially due to a variety of factors, including quarterly fluctuations
in results of operations, adverse circumstances affecting the introduction or
market acceptance of new products and services offered by the Company,
announcements of new products and services by competitors, changes in the
information technology environment, changes in earnings estimates by
analysts, changes in accounting principles, sales of Common Stock by existing
holders, loss of key personnel and other factors. The market price for the
Company's Common Stock may also be affected by the Company's ability to meet
analysts' expectations, and any failure to meet such expectations, even if
minor, could have a material adverse effect on the market price of the
Company's Common Stock. In addition, the stock market is subject to extreme
price and volume fluctuations. This volatility has had a significant effect
on the market prices of securities issued by many companies for reasons
unrelated to the operating performance of these companies. In the past,
following periods of volatility in the market price of a company's
securities, securities class action litigation has often been instituted
against such a company. Any such litigation instigated against the Company
could result in substantial costs and a diversion of management's attention
and resources, which could have a material adverse effect on the Company's
business, operating results and financial condition.
CERTAIN ANTI-TAKEOVER EFFECTS
The Company's Certificate of Incorporation and By-Laws and the Delaware
General Corporation Law include provisions that may be deemed to have anti-
takeover effects and may delay, defer or prevent a takeover attempt that
stockholders might consider in their best interests. These include By-Law
provisions under which only the Chairman of the Board or the President may
call meetings of stockholders and certain advance notice procedures for
nominating candidates for election to the Board of Directors. Directors of
the Company are divided into three classes and are elected to serve staggered
three-year terms. The Board of Directors of the Company is empowered to
issue up to 3,000,000 shares of preferred stock and to determine the price,
rights, preferences and privileges of such shares, without any further
stockholder action. The existence of this "blank-check" preferred stock
could render more difficult or discourage an attempt to obtain control of the
Company by means of a tender offer, merger, proxy contest or otherwise. In
addition, this "blank-check" preferred stock, and any issuance thereof, may
have an adverse effect on the market price of the Company's Common Stock.
YEAR 2000
The Company believes that a majority of middle-market companies have yet to
achieve Year 2000 compliance. To resolve the Year 2000 issue, many companies
are electing to install new package software applications, rather than modify
existing systems, thus creating significant demand for package software-
related services such as those provided by the Company. Consequently, the
Company believes that companies' need to address their Year 2000 compliance
is creating significant demand for IT products and services such as those
provided by the Company. There can be no assurance that the passage of the
year 2000 will not have a material adverse effect on the demand for the
Company's services. In addition, while the Company is not aware of any
existing or potential claims, the occurrence of Year 2000 related system
failures in the information systems of clients of the Company could have a
material adverse effect on the Company's business, financial condition and
results of operation, whether or not the Company bears any responsibility,
legal or otherwise, for the occurrence of those problems.
INTERNATIONAL
In November 1997, the Company began its international operations through the
acquisition of Axis Consulting International, Inc. and World Consulting
Limited. As a result of these acquisitions, the Company recruits consultants
and generates a portion of its revenues from outside the United States. The
Company believes that its international operations will continue to grow.
Foreign operations are subject to special risks that can materially affect
sales and profits, including currency exchange rate fluctuations, labor
strikes, political and economic disruptions, changes in government policies
and regulatory requirements, tariff and trade barriers, immigration laws and
regulations, potentially adverse tax consequences, exchange control and other
risks.
ABSENCE OF DIVIDENDS
The Company does not anticipate paying any cash dividends on its Common Stock
in the foreseeable future.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by
the Selling Stockholders.
THE SELLING STOCKHOLDERS
The following table sets forth certain information regarding the Selling
Stockholders, including (i) the name of each Selling Stockholder, (ii) the
number of Shares beneficially owned by each Selling Stockholder as of July
31, 1998, and (iii) the maximum number of Shares which may be offered hereby.
The information presented is based on data furnished to the Company by the
Selling Stockholders. Percentage ownership is based upon 25,557,077 shares
of Common Stock outstanding on July 22, 1998. All share numbers presented
below and elsewhere in this Prospectus have been adjusted to reflect the two-
for-one stock split of the Company on July 31, 1998.
The number of shares that may be actually sold by each Selling
Stockholder will be determined by such Selling Stockholder. Because each
Selling Stockholder may sell all, some or none of the shares of Common Stock
which each holds, and because the offering contemplated by this Prospectus is
not currently being underwritten, no estimate can be given as to the number
of shares of Common Stock that will be held by the Selling Stockholders upon
termination of the offering.
Pursuant to Rule 416 of the Securities Act, Selling Stockholders may
also offer and sell additional shares of Common Stock issued with respect to
the Shares as a result of stock splits, stock dividends and anti-dilution
provisions.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED
PRIOR TO OFFERING SHARES BEING
NUMBER PERCENT OFFERED
<S> <C> <C> <C>
Alphonse M. Lucchese, Jr 222,000(1) * 50,000
Edward J. Quinn 200,000(1) * 50,000
_____________________
*Less than 1%
(1) Includes shares acquired in connection with the Company's acquisition of
QCC Incorporated ("QCC"). In connection with the acquisition, Messrs.
Lucchese, Jr. and Quinn received registration rights covering 50% of the
shares of Common Stock that such stockholder received in the Company's
acquisition of QCC.
</TABLE>
RELATIONSHIPS WITH THE COMPANY
In March 1998, the Company acquired all of the capital stock of QCC, a
Boston based IT service provider. In consideration for all of the capital
stock of QCC, the Company issued to QCC stockholders 600,000 shares of Common
Stock.
In connection with the acquisition, the Company granted to the QCC
stockholders certain registration rights to register 50% of the Common Stock
that the QCC stockholders received in the acquisition (300,000 shares). In
May 1998, the QCC stockholders sold a total of 200,000 shares of Common Stock
that are subject to the registration rights for $21.81 per share. The Shares
to be sold hereunder are the remaining shares for which the QCC stockholders
have registration rights.
In connection with the Company's acquisition of QCC, the Company entered
in an employment agreement with Alphonse M. Lucchese, Jr. and a consulting
agreement with Edward J. Quinn, who were the founders and sole stockholders
of QCC. The employment agreement and the consulting agreement contain non-
solicitation and noncompete provisions.
PLAN OF DISTRIBUTION
Sales of the Shares being sold by the Selling Stockholders are for the
Selling Stockholders' own accounts. The Company will not receive any
proceeds from the sale of the Shares offered hereby.
The Selling Stockholders have advised the Company that the Shares may be
sold by the Selling Stockholders or their respective pledgees, donees,
transferees or successors in interest, in one or more transactions (which may
involve one or more block transactions) on the Nasdaq National Market, in
sales occurring in the public market of such market quotation system, in
privately negotiated transactions, through the writing of options on shares,
short sales or in a combination of such transactions; that each sale may be
made either at market prices prevailing at the time of such sale or at
negotiated prices; that some or all of the Shares may be sold through brokers
acting on behalf of the Selling Stockholders or to dealers for resale by such
dealers; and that in connection with such sales, such brokers and dealers may
receive compensation in the form of discounts and commissions from the
Selling Stockholders and may receive commissions from the purchasers of
Shares for whom they act as broker or agent (which discounts and commissions
may be less than or exceed those customary in the types of transactions
involved). Any broker or dealer participating in any such sale may be deemed
to be an "underwriter" within the meaning of the Securities Act and will be
required to deliver a copy of this Prospectus to any person who purchases any
of the Shares from or through such broker or dealer. The Company has been
advised that, as of the date hereof, none of the Selling Stockholders have
made any arrangements with any broker for the sale of their Shares.
In offering the Shares covered hereby, the Selling Stockholders and any
broker-dealers and any other participating broker-dealers who execute sales
for the Selling Stockholders may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales, and any profits
realized by the Selling Stockholders and the compensation of such
broker-dealer may be deemed to be underwriting discounts and commissions. In
addition, any Shares covered by this Prospectus which qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
Prospectus.
In order to comply with certain states' securities laws, if applicable,
the Shares will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states, the Shares may not be sold
unless the Shares have been registered or qualified for sale in such state or
an exemption from registration or qualification is available and is complied
with.
Under applicable rules and regulations under Regulation M under the
Exchange Act, any person engaged in the distribution of the Shares may not
simultaneously engage in market making activities, subject to certain
exceptions, with respect to the Common Stock of the Company for a specified
period set forth in Regulation M prior to the commencement of such
distribution and until its completion. In addition and without limiting the
foregoing, each Selling Stockholder will be subject to the applicable
provisions of the Securities Act and Exchange Act and the rules and
regulations thereunder, including, without limitation, Regulation M, which
provisions may limit the timing of purchases and sales of shares of the
Company's Common Stock by the Selling Stockholders. The foregoing may affect
the marketability of the Shares.
The Company will bear all expenses of the offering of the Shares, except
that the Selling Stockholders will pay any applicable underwriting
commissions and expenses, brokerage fees and transfer taxes, as well as the
fees and disbursements of counsel to and experts for the Selling
Stockholders.
Pursuant to the terms of registration rights agreements with the Selling
Stockholders, the Company has agreed to indemnify and hold harmless such
Selling Stockholders from certain liabilities under the Securities Act.
EXPERTS
The consolidated financial statements and schedule of the Company as of
December 31, 1997 and 1996, and for each of the years in the three-year
period ended December 31, 1997, have been incorporated by reference herein
and in the registration statement in reliance upon the reports of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses (other than the SEC registration
fee) of the issuance and distribution of the securities being registered, all
of which will be paid by the Company.
SEC registration fee . . . . . . . . . . . . . . . $ 702
Fees and expenses of counsel . . . . . . . . . . . 10,000
Fees and expenses of accountants . . . . . . . . . 2,000
*Nasdaq listing fees and expenses . . . . . . . . . -
Miscellaneous . . . . . . . . . . . . . . . . . . 4,298
Total . . . . . . . . . . . . . . . . . . . . . $17,000
________________
*Previous Paid
The Company has agreed to bear all expenses (other than underwriting
discounts and selling commissions, brokerage fees and transfer taxes, if any,
and the fees and expenses of counsel and other advisors to the Selling
Stockholders) in connection with the registration and sale of the Shares
being offered by the Selling Stockholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may indemnify any person who was or is
a party or is threatened to be made a party to an action (other than an
action by or in the right of the corporation) by reason of his service as a
director or officer of the corporation, or his service, at the corporation's
request, as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees) that are
actually and reasonably incurred by him ("Expenses"), and judgments, fines
and amounts paid in settlement that are actually and reasonably incurred by
him, in connection with the defense or settlement of such action, provided
that he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. Although Delaware law permits a corporation to
indemnify any person referred to above against Expenses in connection with
the defense or settlement of an action by or in the right of the corporation,
provided that he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests, if such person
has been judged liable to the corporation, indemnification is only permitted
to the extent that the Court of Chancery (or the court in which the action
was brought) determines that, despite the adjudication of liability, such
person is entitled to indemnity for such Expenses as the court deems proper.
The determination as to whether a person seeking indemnification has met the
required standard of conduct is to be made (1) by a majority vote of a quorum
of disinterested members of the board of directors, or (2) by independent
legal counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (3) by the shareholders. The General
Corporation Law of the State of Delaware also provides for mandatory
indemnification of any director, officer, employee or agent against Expenses
to the extent such person has been successful in any proceeding covered by
the statute. In addition, the General Corporation Law of the State of
Delaware provides the general authorization of advancement of a director's or
officer's litigation expenses in lieu of requiring the authorization of such
advancement by the board of directors in specific cases, and that
indemnification and advancement of expenses provided by the statute shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement or otherwise.
The Company's Restated Certificate and by-laws provide for
indemnification of the Company's directors, officers, employees and other
agents to the fullest extent not prohibited by the Delaware law.
The Company maintains liability insurance for the benefit of its
directors and officers.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of the Company as
amended.
3.2 Second Amended and Restated By-Laws of the Company, incorporated
herein by reference to the Company's Registration Statement on Form
S-1 (No 333-1778).
5.1 Opinion of McDermott, Will & Emery regarding legality
23.1 Consent of KPMG Peat Marwick, LLP
23.2 Consent of McDermott, Will & Emery (included in Exhibit 5.1)
24.1 Power of Attorney (included with the signature page to the
Registration Statement)
ITEM 17. UNDERTAKINGS.
(1) 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 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.
(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) The undersigned registrant hereby undertakes 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 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(2) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officer and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the 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 Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Chicago, Illinois on July 25, 1998.
WHITTMAN-HART, INC.
By: /s/ Kevin M. Gaskey
Kevin M. Gaskey, Chief Financial Officer
and Treasurer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert F. Bernard and Kevin M. Gaskey, and
each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities (including his capacity as a director and/or
officer of Whittman-Hart, Inc.) to sign any or all amendments (including
post-effective amendments) to this Registration Statement and to sign a
Registration Statement pursuant to Section 462(b) of the Securities Act of
1933, and 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 and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his or
her 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 by the following persons or their
attorneys-in-fact in the capacities indicated on July 25, 1998.
SIGNATURE TITLE
/s/ Robert F. Bernard Chief Executive Officer and
Robert F. Bernard Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Kevin M. Gaskey Chief Financial Officer and
Kevin M. Gaskey Treasurer (Principal Financial and
Accounting Officer)
/s/ Edward V. Szofer Director
Edward V. Szofer
/s/ Paul D. Carbery Director
Paul D. Carbery
/s/ Larry P. Roches Director
Larry P. Roches
/s/ Robert F. Steel Director
Robert F. Steel
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WHITTMAN-HART, INC.
WHITTMAN-HART, INC. (the "Corporation") was originally incorporated in the State
of Delaware on December 19, 1991 under the name "Whittman-Hart Corporation II".
The Corporation does hereby certify as follows:
FIRST: The name of the Corporation is WHITTMAN-HART, INC.
SECOND: The registered office of the Corporation in the State of Delaware
shall be located at Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle. The name of its registered agent shall be The
Corporation Trust Company.
THIRD: The Corporation shall engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: A. Authorized Shares. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is eighteen million
two hundred thirty-nine thousand and nineteen (18,239,019), consisting of
fifteen million (15,000,000) shares of Common Stock, $.001 par value per share
(the "Common Stock"), three million (3,000,000) shares of Preferred Stock, $.001
par value per share (the "Preferred Stock"), and two hundred thirty-nine
thousand and nineteen (239,019) shares of 10% Cumulative Convertible Preferred
Stock, $.001 par value per share (the "Redeemable Preferred Stock").
B. Redeemable Preferred Stock. The powers, preferences and rights
and the qualifications, limitations and restrictions relating to the Redeemable
Preferred Stock are as follows:
1. Dividends and Distributions.
(a) Each holder of record of Redeemable Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends at the rate of 10% per
annum from August 29, 1995 on the Stated Value (as hereinafter defined), and no
more ("Redeemable Preferred Dividends"). The "Stated Value" means $23.01 per
share. Redeemable Preferred Dividends shall accrue on a daily basis, whether or
not the Corporation shall have earnings or surplus at the time, and shall
cumulate whether or not declared, until declared and paid, which declaration and
payment may be for all or part of the then accumulated Redeemable Preferred
Dividends; provided, however, that upon the conversion of any shares of
Redeemable Preferred Stock into shares of Common Stock under Section 4 hereof,
all Redeemable Preferred Dividends shall cease to accrue on such shares of
Redeemable Preferred Stock and any accumulated and unpaid Redeemable Preferred
Dividends on such shares of Redeemable Preferred Stock converted shall cease to
be accrued, shall not be paid and shall be canceled.
(b) In the event that all accumulated Redeemable Preferred
Dividends on the Redeemable Preferred Stock have not been declared and paid or
set apart for payment, the Corporation shall not declare or pay or set apart for
payment any dividends or make any other distributions on, or make any payment on
account of the purchase, redemption or other retirement of any other class of
stock or series thereof of the Corporation ranking, as to dividends or as to
distributions in the event of a liquidation, dissolution or winding up of the
Corporation, junior to the Redeemable Preferred Stock until all such accumulated
Redeemable Preferred Dividends on the Redeemable Preferred Stock shall have been
paid or declared and set apart for payment; provided, however, that the
foregoing shall not apply to (i) any dividend payable solely in any shares of
any stock ranking, as to dividends and as to distributions in the event of a
liquidation, dissolution or winding up of the Corporation, junior to the
Redeemable Preferred Stock; (ii) the acquisition of shares of any stock ranking,
as to dividends or as to distributions in the event of a liquidation,
dissolution or winding up of the Corporation, junior to the Redeemable Preferred
Stock either (A) pursuant to any employee incentive or benefit plan or
arrangement (including any employment agreement or stock transfer restriction
agreement with employees) of the Corporation or of any subsidiary of the
Corporation heretofore or hereafter adopted; or (B) in exchange solely for
shares of any other stock ranking, as to dividends and as to distributions in
the event of a liquidation, dissolution or winding up of the Corporation, junior
to the Redeemable Preferred Stock.
2. Voting Rights. In addition to the vote required by law,
each holder of record of Redeemable Preferred Stock shall be entitled to the
following voting rights:
(a) Each holder of record of Redeemable Preferred Stock
shall be entitled to vote on all matters submitted to a vote of the stockholders
of the Corporation, voting together with the holders of Common Stock as a single
class. Each holder of record of each share of Redeemable Preferred Stock shall
be entitled to that number of votes as is equal to the number of shares of
Common Stock into which such share of Redeemable Preferred Stock could be
converted on the record date for determining the stockholders entitled to vote,
or if no record date is established, as of the date such vote or any written
consent is solicited or executed.
(b) Without the approval of holders of at least a majority
of the shares of the Redeemable Preferred Stock then outstanding, voting
together as a class, the Corporation will not (A) issue any securities which
will, with respect to dividend rights or rights on liquidation, winding up and
dissolution, rank senior to, or on a parity with, the Redeemable Preferred
Stock, or any obligation or security convertible into or evidencing the right to
purchase any securities senior to, or on a parity with, the Redeemable Preferred
Stock or which will provide for mandatory redemption prior to the redemption of
the Redeemable Preferred Stock; or (B) alter, amend or repeal any provision of
this Amended and Restated Certificate of Incorporation (including any such
alteration, amendment or repeal effected by any merger or consolidation), if
such amendment, alteration or repeal would alter or change the powers,
preferences or special rights with respect to the shares of Redeemable Preferred
Stock in a manner adverse to the holders thereof; or (C) alter, amend or modify
this section 2(b).
3. Liquidation Rights.
(a) Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any distribution or
payment shall be made to the holders of any Preferred Stock or Common Stock, the
holders of Redeemable Preferred Stock shall be entitled to be paid out of the
assets of the Corporation an amount per share of Redeemable Preferred Stock
equal to the sum of the Stated Value plus all accrued but unpaid Redeemable
Preferred Dividends thereon (the "Liquidation Preference") and no more.
(b) A merger or consolidation of the Corporation with or
into any other corporation, a merger or consolidation of any other corporation
with or into the Corporation or a sale, lease, exchange or other transfer of all
of or any portion of the assets of the Corporation, shall not be deemed to be a
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation for purposes of this Section 3, but the holders of Redeemable
Preferred Stock shall nevertheless be entitled in the event of any such merger
or consolidation to the rights provided by Section 4(f).
4. Conversion. The holders of the Redeemable Preferred Stock
shall have the following rights and obligations with respect to the conversion
of the Redeemable Preferred Stock into shares of Common Stock:
(a) Automatic Conversion into Common Stock. All Redeemable
Preferred Stock shall automatically convert into Common Stock at the then
applicable Conversion Price immediately prior to the closing of a sale of Common
Stock pursuant to a registration statement declared effective by the Securities
and Exchange Commission (the "Conversion Date"), if (i) the aggregate sale
proceeds from such sale of Common Stock exceeds $20 million and (ii) the price
per share of Common Stock is (A) if such offering is consummated on or prior to
December 31, 1996, at least $8.75 (as appropriately adjusted for splits and
combinations of Common Stock) or (B) if such offering is consummated after
December 31, 1996, at least $11.505 per share of Common Stock (as appropriately
adjusted for splits and combinations of Common Stock).
(b) Optional Conversion into Common Stock. A holder of
shares of Redeemable Preferred Stock shall be entitled, at any time (including
at any time after a date scheduled for the redemption of such Redeemable
Preferred Stock but before payment of the redemption price therefor), to convert
any share or shares of Redeemable Preferred Stock into shares of Common Stock,
computed by multiplying the number of such Redeemable Preferred Stock to be
converted by $5.7525 and dividing the result by the Conversion Price then in
effect. Each conversion of Redeemable Preferred Stock will be deemed to have
been effected as of the close of business on the date on which the holder of
Redeemable Preferred Stock has delivered a written notice requesting their
conversion at the principal Office of the Corporation, such delivery to be
effective upon receipt (the "Optional Conversion Date"). On and after the
Optional Conversion Date, the Person entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder of such shares of Common Stock into which such shares of Redeemable
Preferred Stock have been converted. As soon as possible after the Optional
Conversion Date (but in any event within five business days), the Corporation
will deliver to the converting holder a notice confirming such conversion and a
duly executed certificate evidencing the Common Stock into which the Redeemable
Preferred Stock has been converted. The conversion of Redeemable Preferred
Stock into Common Stock will be made without charge to the converting holder.
(c) Conversion Price. The initial Conversion Price shall
be $5.7525. In order to prevent dilution of the conversion rights granted, the
Conversion Price shall be subject to adjustment from time to time. If at any
time the Corporation issues or sells, or is deemed to have issued or sold, any
Common Stock (other than Excluded Securities (as hereinafter defined))
("Additional Stock") for a consideration per share less than the Conversion
Price in effect immediately prior to the time of such issue or sale, then
forthwith upon such issue or sale the Conversion Price shall be reduced, in
order to increase the shares of Common Stock into which the Redeemable Preferred
Stock is convertible, to that amount determined by multiplying such Conversion
Price in effect immediately prior to such sale or issuance of Additional Stock
by a fraction (i) the numerator of which shall be the shares of Common Stock
outstanding immediately prior to such sale or issuance, plus the shares of
Common Stock which the aggregate purchase price for such Additional Stock so
sold or issued would purchase at the Conversion Price in effect immediately
prior to such issuance and (H) the denominator of which shall be the shares of
Common Stock outstanding immediately prior to such sale or issuance plus the
shares of Additional Stock so sold or issued.
(d) Anti-Dilution-Adjustments.
(i) Issuance of Rights or Options. If the Corporation
in any manner grants any rights or options to subscribe for or to purchase
Common Stock or any other securities convertible into or exchangeable for Common
Stock (such rights or options being herein called "Options" and such convertible
or exchangeable securities being herein called "Convertible Securities") and the
price per share for which Common Stock is issuable upon the exercise of such
options or upon conversion or exchange of such Convertible Securities is less
than the Conversion Price in effect immediately prior to the time of the
granting of such Options, then the total maximum shares of Common Stock issuable
upon the exercise of such Options or upon conversion or exchange of the total
maximum amount of such Convertible Securities issuable upon the exercise of such
Options shall be deemed to be outstanding and to have been issued and sold by
the Corporation for such price per share. For purposes of this paragraph, the
"price per share for which shares are issuable" shall be determined by dividing
(A) the total amount, if any, received or receivable by the Corporation as
consideration for the granting of such Options, plus the minimum aggregate
amount of additional consideration payable to the Corporation upon exercise of
all such Options, plus in the case of such Options which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable to the Corporation upon the issuance or sale of such Convertible
Securities and the conversion or exchange thereof, by (B) the total maximum
shares of Common Stock issuable upon the exercise of all such Options or upon
the conversion or exchange of all such Convertible Securities issuable upon the
exercise of such Options. No further adjustment of the Conversion Price shall
be made when Convertible Securities are actually issued upon the exercise of
such Options or when shares are actually issued upon the exercise of such
Options or the conversion or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the
Corporation in any manner issues or sells any Convertible Securities and the
price per share for which Common Stock is issuable upon such conversion or
exchange is less than the Conversion Price in effect immediately prior to the
time of such issue or sale, then the maximum shares of Common Stock issuable
upon conversion or exchange of such Convertible Securities shall be deemed to be
outstanding and to have been issued and sold by the Corporation for such price
per share. For the purposes of this paragraph, the "price per share for which
Common Stock is issuable" shall be determined by dividing (A) the total amount
received or receivable by the Corporation as consideration for the issue or sale
of such Convertible Securities, plus the minimum.aggregate amount of additional
consideration if any, payable to the Corporation upon the conversion or exchange
thereof, by (B) the total maximum shares of Common Stock issuable upon the
conversion or exchange of all such Convertible Securities. No further
adjustment of the Conversion Price shall be made when shares are actually issued
upon the conversion or exchange of such Convertible Securities, and if any such
issue or sale of such Convertible Securities is made upon exercise of any
Options for which adjustments of the Conversion Price had been or are to be made
pursuant to other provisions, no further adjustment of the Conversion Price
shall be made by reason of such issue or sale.
(iii) Change in Option Price or Conversion Price.
If the purchase price provided for in any Options, the additional consideration,
if any, payable upon the conversion or exchange of any Convertible Securities,
or the rate at which any Convertible Securities are convertible into or
exchangeable for Common Stock change at any time, and such change is not due
solely to the operation of anti-dilution provisions similar in nature to those
set forth in this Section 4(d), the Conversion Price in effect at the time of
such change shall be readjusted to the Conversion Price which would have been in
effect at such time had such Options or Convertible Securities still outstanding
provided for such changed purchase price, additional consideration or changed
conversion rate, as the case may be, at the time initially granted, issued or
sold.
(iv) Treatment of Expired Options and Unexercised
Convertible Securities. Upon the expiration of any Option or the termination of
any right to convert or exchange any Convertible Security without the exercise
of any such Option or right, the Conversion Price then in effect hereunder shall
be adjusted to the Conversion Price which would have been in effect at the time
of such expiration or termination had such Option or Convertible Security, to
the extent outstanding immediately prior to such expiration or termination,
never been issued.
(v) Calculation of Consideration Received. If any
Additional Stock, Option or Convertible Security is issued or sold or deemed to
have been issued or sold for cash, the consideration received therefor shall be
deemed to be the net amount received by the Corporation therefor. In case any
Additional Stock, Options or Convertible Securities are issued or sold for a
consideration other than cash, the amount of consideration other than cash
received by the Corporation shall be the fair value of such consideration as
determined by the unanimous decision of the Board of Directors. If any
Additional Stock, Option or Convertible Security is issued in connection with
any merger in which the Corporation is the surviving entity, the amount of
consideration therefor shall be deemed to be the fair value of such portion of
the net assets and business of the non-surviving entity as is attributable to
such Additional Stock, Options or Convertible Securities, as the case may be, as
reasonably determined by the Board of Directors.
(vi) Integrated Transactions. In case any Option is
issued in connection with the issue or sale of other securities of the
Corporation, together comprising one integrated transaction in which no specific
consideration is allocated to such Option by the parties thereto, the Option
shall be deemed to have been issued for the consideration determined by the
unanimous decision of the Board of Directors.
(vii) Certain Exceptions. Anything herein to the
contrary notwithstanding, no adjustment may be made to the Conversion Price by
reason of (A) the issuance of Common Stock upon conversion of Redeemable
Preferred Stock, (B) the issuance of Common Stock pursuant to the options and
awards described in Section 5.5(a) (vii) of the Unit Contribution Agreement
among the Corporation, Whittman-Hart, Ltd., Robert Bernard, F-WH Corporation and
PVP-WH Corporation dated as of December 28, 1995, a copy of which will be
provided to any stockholder who so requests, (C) the issuance of Employee
Warrants, (D) the issuance of Common Stock upon exercise of Employee Warrants
and (E) the issuance of Common Stock for which adjustments have been made in
accordance with subparagraph (i) or (ii) of this Section 4(d) (the securities
referred to in this subparagraph (vii) are herein referred to as the "Excluded
Securities").
(e) Subdivision or Combination of Common Stock. If the
Corporation at any time subdivides its outstanding Common Stock into a greater
number or combines its outstanding Redeemable Preferred Stock into a lesser
number, the Conversion Price in effect immediately prior to such subdivision or
combination shall be proportionately reduced, and if the Corporation at any time
combines its outstanding Common Stock into a lesser number or subdivides its
outstanding Redeemable Preferred Stock into a larger number, the Conversion
Price in effect immediately prior to such combination shall be proportionately
increased.
(f) Reorganization, Reclassification, Consolidation, Merger
or Sale. Any capital reorganization, reclassification, consolidation, merger or
sale of all or substantially all of the Corporation's assets to another Person
which is effected in such a way that holders of Common Stock are entitled to
receive (either directly or upon subsequent liquidation) stock, securities or
assets with respect to or in exchange for Common Stock is referred to herein as
an "Organic Change." Prior to the consummation of any Organic Change, the
Corporation shall make appropriate provisions (in form and substance
satisfactory to the holders of a majority of the Redeemable Preferred Stock) to
insure that each of the holders of Redeemable Preferred Stock shall thereafter
have the right to acquire and receive, in lieu of or in addition to the Common
Stock immediately theretofore acquirable and receivable upon the conversion of
such holder's Redeemable Preferred Stock, such shares of stock, securities or
assets as such holder would have received in connection with such Organic Change
if such holder had converted its Redeemable Preferred Stock immediately prior to
such Organic Change. In any such case, the Corporation shall make appropriate
provisions (in form and substance satisfactory to the holders of a majority of
the Redeemable Preferred Stock then outstanding) to insure that the provisions
of this Section shall thereafter be applicable to the Redeemable Preferred Stock
(including, in the case of any such consolidation, merger or sale in which the
successor or purchasing entity is other than the Corporation, an immediate
adjustment of the Conversion Price in accordance with Section 4(c) based upon
the value for the Common Stock reflected by the terms of such consolidation,
merger or sale, and a corresponding immediate adjustment in the number of shares
of Common Stock acquirable and receivable upon conversion of Redeemable
Preferred Stock, if the value so reflected is less than the Conversion Price in
effect immediately prior to such consolidation, merger or sale). The
Corporation shall not effect any such consolidation, merger or sale, unless
prior to the consummation thereof, the successor entity (if other than the
Corporation) resulting from consolidation or merger or the entity purchasing
such assets assumes by written instrument (in form reasonably satisfactory to
the holders of a majority of the Redeemable Preferred Stock then outstanding),
the obligation to deliver to each such holder such shares of stock, securities
or assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire.
(g) Notices. Immediately upon any adjustment of the
Conversion Price, the Corporation shall give written notice thereof to all
holders of Redeemable Preferred Stock. The Corporation shall give written
notice to all holders of Redeemable Preferred Stock as soon as possible but in
any event at least 10 days prior to the date on which the Corporation (i) makes
any distribution solely upon Common Stock, or (ii) makes any pro rata
subscription offer solely to holders of Common Stock. The Corporation shall
also give written notice to the holders of Redeemable Preferred Stock as soon as
possible but in any event at least 10 days prior to the date on which any
Organic Change is intended to take place.
5. Redemption.
(a) A holder of Redeemable Preferred Stock may elect, by
written notice delivered to the Corporation, to require the Corporation to
redeem all (but not less than all) of the Redeemable Preferred Stock then held
by such holder. Such election may be made at any time after the earlier of (i)
the date on which a Change in Control (as hereinafter defined) occurs, (ii) the
occurrence of an Event of Noncompliance as defined in the Unit Contribution
Agreement among the Corporation, Whittman-Hart, Ltd., Robert Bernard, F-WRH
Corporation and PVP-WH Corporation dated as of December 28, 1995, a copy of
which will be provided to any stockholder who so requests, or (iii) July 31,
2000. In the event that the holder of Redeemable Preferred Stock makes an
election under this subsection, the Corporation shall redeem the Redeemable
Preferred Stock held by such holder on a date mutually agreed to by the Board of
Directors and the holder of the Redeemable Preferred Stock, but in any event not
later than sixty days after the delivery of the aforesaid notice. The
redemption price for each share of Redeemable Preferred Stock redeemed shall be
an amount equal to the Liquidation Preference with respect to such Redeemable
Preferred Stock. "Change in Control" means (i) the acquisition by any Person(s)
(as hereinafter defined), other than Robert Bernard, of the right, by virtue of
ownership of voting securities of the Corporation or otherwise, to elect or
designate a majority of the members of the Board of Directors, (ii) the approval
by stockholders of the Corporation of an agreement to merge or consolidate with
another corporation, unless following the consummation of such merger or
consolidation Robert Bernard continues to have the right, by virtue of his
ownership of voting securities or otherwise, to elect or designate a majority of
the members of the Board of Directors of the surviving corporation, or (c) the
sale, in one or more transactions, of an aggregate of 400,000 or more shares of
Common Stock. "Person" means any natural person, corporation, firm, joint
venture, limited liability company, partnership, trust, unincorporated
association, government or any department or agency of government.
(b) At any time after July 31, 2002, the Board of Directors
may elect, by written notice delivered to any holder of Redeemable Preferred
Stock then outstanding, to cause the Corporation to redeem all (but not less
than all) the Redeemable Preferred Stock then held by such holder. In the event
that the Board of Directors causes the Corporation to make an election under
this subsection, the Corporation shall redeem the Redeemable Preferred Stock
held by such holder on a date mutually agreed to by the Board of Directors and
the holder of the Redeemable Preferred Stock, but in any event not later than
five business days after the delivery of the aforesaid notice. The redemption
price for each share of Redeemable Preferred Stock redeemed shall be the Stated
Value.
(c) In the event that the Redeemable Preferred Stock of any
holder is required to be redeemed as a result of an election under subsection
(a) or subsection (b), the Board of Directors shall cause a notice to be
delivered to all the stockholders, which notice shall disclose the required
redemption and the date on which the redemption is required to be effected (the
"Redemption Date"). Such notice shall be given not later than 20 days prior to
the Redemption Date. On the redemption date, the Corporation shall pay to each
stockholder whose Redeemable Preferred Stock is required to be redeemed on such
date, by wire transfer of immediately available funds, an amount equal to one-
third of the aggregate redemption price owing to such holder on such date
(determined in accordance with subsection (a) or subsection (b), whichever
applies). The remainder of the redemption price shall be payable by the
Corporation in two equal installments on the first and second anniversaries of
the Redemption Date, together with interest at the rate of 10% per annum. The
Corporation may, at its option, prepay, in whole or in part, the redemption
price at any time after the Redemption Date. Prepayments shall be applied first
to accrued interest on that portion of the redemption price being prepaid and
the remainder to the prepayment of the redemption price.
6. Reissuance Following Conversion Prohibited. The reissuance
of shares of Redeemable Preferred Stock following their conversion into Common
Stock is prohibited, and upon the filing of a certificate stating that such
reissuance is prohibited and reciting the retirement of such shares, all
reference to such shares in this Amended and Restated Certificate of
Incorporation shall be eliminated.
C. Preferred Stock. The Board of Directors is authorized, subject
to any limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware (such certificate being hereinafter
referred to as a "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and any qualifications, limitations or restrictions thereof. The number of
authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the Common Stock, without a vote of the holders of
the Preferred Stock, or of any series thereof, unless a vote of any such holders
is required pursuant to the terms of any Preferred Stock Designation.
D. Common Stock. Except as otherwise provided by the General
Corporation Law of the State of Delaware, by this Amended and Restated
Certificate of Incorporation or any amendments thereto or by a Preferred Stock
Designation, all of the voting power of the Corporation shall be vested in the
holders of the Common Stock, and each holder of Common Stock shall have one (1)
vote for each share of Common Stock held by such holder on all matters voted
upon by the stockholders.
FIFTH: In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized
and empowered, in the manner provided in the By-Laws of the Corporation, to
make, alter, amend and repeal the By-Laws of the Corporation in any respect not
inconsistent with the laws of the State of Delaware or with this Amended and
Restated Certificate of Incorporation.
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts as may be done by the Corporation, subject, nevertheless,
to the provisions of the laws of the State of Delaware, this Amended and
Restated Certificate of Incorporation and the By-Laws of the Corporation.
SIXTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them, and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manners as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation as the case may be,
and also on this Corporation.
SEVENTH: The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the By-
Laws of the Corporation. Election of directors need not be by ballot unless the
By-Laws of the Corporation shall so provide. Meetings of stockholders may be
held within or outside of the State of Delaware, as the By-Laws of the
Corporation may provide.
EIGHTH: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
emissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, as the same exists or hereafter may be amended, or (iv) for any transaction
from which the director derived an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to authorize
the further elimination or limitation of the liability of directors, then the
liability of directors shall be eliminated or limited to the full extent
authorized by the General Corporation Law of the State
of Delaware, as so amended.
Any repeal or modification of this Article shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
NINTH: A. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the number of
directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the Whole Board. For purposes
of this Amended and Restated Certificate of Incorporation, the term "Whole
Board" shall mean the total number of authorized directors whether or not there
exist any vacancies in previously authorized directorships. The directors,
other than those who may be elected by the holders of any series of Preferred
Stock under specified circumstances, shall be divided into three (3) classes,
with the term of office of the first class to expire at the Corporation's 1997
annual meeting of stockholders, the term of office of the second class to expire
at the Corporation's 1998 annual meeting of stockholders and the term of office
of the third class to expire at the Corporation's 1999 annual meeting of
stockholders. At each annual meeting of stockholders, directors elected to
succeed those directors whose terms expire shall be elected for a term of office
to expire at the third succeeding annual meeting of stockholders after their
election.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall, unless otherwise provided by law or by resolution
of the Board of Directors, be fined only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been chosen expires. No decrease
in the authorized number of directors shall shorten the term of any incumbent
director.
C. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in the
by-laws of the Corporation.
D. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least sixty-six percent (66%) of the voting power of
all of the then-outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class.
TENTH: Indemnification of Directors and Officers.
A. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section C of this ARTICLE TENTH with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereto was
authorized by the Board of Directors of the Corporation.
B. Right to Advancement of Expenses. The right to indemnification
conferred in Section A of this ARTICLE TENTH shall include the right to be paid
by the Corporation the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section B or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this ARTICLE TENTH shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
C. Right of Indemnitee to Bring Suit. If a claim under Section A or
B of this ARTICLE TENTH is not paid in full by the corporation within sixty (60)
days after a written claim has been received by the Corporation, except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by
the indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a full adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article TENTH or otherwise shall be on the Corporation.
D. Non-Exclusivity of Rights. The rights to indemnification and to
the advancement of expenses conferred in this ARTICLE TENTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, this Amended and Restated Certificate of Incorporation, the
Corporation's By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
E. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such.expense,
liability or loss under the Delaware General Corporation Law.
F. Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this ARTICLE TENTH with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
ELEVENTH: No amendment or repeal of Article EIGHTH or TENTH of this Amended and
Restated Certificate of Incorporation shall apply to or have any effect on the
right of any individual referred to in Article EIGHTH or TENTH for or with
respect to acts or omissions of such individual occurring prior to such
amendment or repeal.
TWELFTH: The Corporation expressly elects to be governed by Section 203 of
the General Corporation Law of the State of Delaware, provided that this Article
TWELFTH shall not apply to any business combination (as defined in said Section
203) between the Corporation and any person who became an interested stockholder
(as defined in said Section 203) of the Corporation on or prior to April 3,
1996.
THIRTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
FOURTEENTH: This Amended and Restated Certificate of Incorporation, which
restates and integrates and further amends the provisions of the Corporation's
Certificate of Incorporation, has been duly adopted in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, WHITTMAN-HART, INC. has caused this certificate to be
executed by its Vice President this ___ day of April, 1996.
WHITTMAN-HART, INC.
By:
Edward V. Szofer, Vice President
CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
WHITTMAN-HART, INC.
..............................
WHITTMAN-HART, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the "Act"), DOES
HEREBY CERTIFY THAT:
1. In accordance with the provisions of Section 242 of the Act, an
amendment to the Amended and Restated Certificate of Incorporation of
this Corporation his been duly adopted by the Board of Directors of
this Corporation and by the stockholders of this Corporation at a
Special Meeting of Stockholders.
2. Said amendment amends subparagraph A of Article 4 of the Amended and
Restated Certificate of incorporation so that, as amended,
subparagraph A of Article 4 shall read in its entirety as follows:
"AUTHORIZED SHARES. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is forty
Million (40,000,000) shares, consisting of thirty-seven million
(37,000,000) shares of Common Stock, $.001 par value per share (the
"Common Stock"), and three million (3,000,000) shares of Preferred
Stock, $.001 par value per share (the "Preferred Stock")."
3. Said amendment further amends Article 4 of the Amended and Restated
Certificate of Incorporation by deleting subparagraph B therefrom in
its entirety.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly
executed this 25th day of November, 1996.
By: /s/ Robert F. Bernard
Robert F. Bernard, Chairman of the Board,
President and Chief Executive Officer
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WHITTMAN-HART, INC.
WHITTMAN-HART, INC. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY THAT:
FIRST: The Board of Directors of the corporation approved and adopted
the following resolution for amending its Amended and Restated Certificate of
Incorporation declaring it advisable and recommended that the amendment be
submitted to the stockholders for their consideration:
RESOLVED, that subparagraph A of Article Four of the Amended
and Restated Certificate of Incorporation of the corporation be
amended in its entirety to read as follows:
"Authorized Shares. The total number of shares of all
classes of stock which the Corporation shall have authority
to issue is seventy five million (78,000,000) shares,
consisting of seventy two million (75,000,000) shares of
Common Stock, $.001 par value per share (the "Common
Stock"), and three million (3,000,000) shares of Preferred
Stock, $.001 par value per share (the "Preferred Stock")."
SECOND: The amendment was duly adopted in accordance with the
provisions of Sections 242 of the General Corporation Law of the State of
Delaware, by the stockholders of this Corporation at a meeting of the
stockholders of the Corporation.
IN WITNESS WHEREOF, WHITTMAN-HART, INC. has caused this certificate to
be duly executed this 21st day of May, 1998.
WHITTMAN-HART, INC.
By: Robert F. Bernard
Its: Chairman of the Board and
Chief Executive Officer
Exhibit 5.1
July 29, 1998
Board of Directors
Whittman-Hart, Inc.
311 West Wacker Drive
Chicago, Illinois 60606
RE: Registration Statement on Form S-3
Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement on Form S-3 (the "Registration Statement") of Whittman-
Hart, Inc. (the "Company"), to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, to register 50,000
shares (the "Shares") of the common stock of the Company, $.001 par value (the
"Common Stock").
We have examined or considered:
1. A copy of the Company's Amended and Restated Certificate of
Incorporation, as amended.
2. The Second Amended and Restated By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State of Delaware, as
of a recent date, as to the good standing of the Company in that state.
4. Copies of resolutions duly adopted by the Board of Directors of
the Company relating to the Shares.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion. In our examination, we have assumed the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies, the
genuineness of all signatures on documents reviewed by us and the legal capacity
of natural persons.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and validly issued and are fully paid and non-assessable.
Members of our firm are admitted to the practice of law in the State of
Illinois and we express no opinion as to the laws of any jurisdiction other than
the laws of the State of Illinois, the General Corporation Law of the State of
Delaware. We hereby consent to the references to our firm in the Registration
Statement and to the filing of this opinion by the Company as an Exhibit to the
Registration Statement. In giving this consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ McDermott, Will & Emery
McDERMOTT, WILL & EMERY
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Whittman-Hart, Inc.:
We consent to incorporation by reference in this Registration Statement on
Form S-3 of Whittman-Hart, Inc. of our report dated February 13, 1998,
relating to the consolidated balance sheets of Whittman-Hart, Inc. and
subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of earnings, stockholders' equity, and cash flows for each of
the years in the three-year period ended December 31, 1997, and the related
schedule, which report appears in the December 31, 1997 annual report on
Form 10-K of Whittman-Hart, Inc.
Chicago, Illinois /s/ KPMG PEAT MARWICK LLP
July 24, 1998
