As filed with the Securities and Exchange Commission on March 16, 1999
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 jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification
No.)
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. |_|
<TABLE>
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Calculation of Registration Fee
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<CAPTION>
Proposed maximum Proposed maximum aggregate
Title of each class of Amount to be offering price per offering price(2) Amount of
securities to be registered registered (1) share(2) registration fee
- ------------------------------ ---------------------- --------------------- ----------------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock (par value $.001 288,037 shares $26.563 $7,651,126.84 $2,127.02
per share)
- ------------------------------ ---------------------- --------------------- ----------------------------- -------------------
(1) Maximum number of shares that may be offered. 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 March 15, 1999.
</TABLE>
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.
<PAGE>
Information contained in this Prospectus is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This Prospectus is not
an offer to buy these securities in any state where the offer to sale is not
permitted.
SUBJECT TO COMPLETION, DATED MARCH 16, 1999
PROSPECTUS
288,037 SHARES
WHITTMAN-HART, INC.
COMMON STOCK
These 288,037 shares of common stock may be offered and sold at various
times by the stockholders of the Company identified in this Prospectus (the
"Selling Stockholders"). The Selling Stockholders or their respective
transferees or other successors may sell at various times the common stock
directly or through broker-dealers, on the Nasdaq National Market, or in
privately negotiated transactions or otherwise. These sales may occur at
prevailing market prices or at negotiated prices.
Our common stock is quoted on the Nasdaq National Market under the
symbol "WHIT." On March 15, 1999, the closing sale price of the common stock on
the Nasdaq National Market was $25 9/16 per share.
YOU SHOULD CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 3 OF
THIS PROSPECTUS BEFORE MAKING A DECISION TO PURCHASE OUR COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE
ELSE TO PROVIDE YOU WITH ADDITIONAL OR DIFFERENT INFORMATION. THE COMMON STOCK
IS NOT BEING OFFERED IN ANY STATE OR JURISDICTION WHERE THE OFFER IS NOT
PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF SUCH
DOCUMENTS. YOU SHOULD READ CAREFULLY THE ENTIRE PROSPECTUS, AS WELL AS THE
DOCUMENTS INCORPORATED BY REFERENCE IN THE PROSPECTUS, BEFORE MAKING AN
INVESTMENT DECISION.
____________________________________________________
The date of this Prospectus is March __, 1999
<PAGE>
TABLE OF CONTENTS
About This Prospectus.........................................................2
Where You Can Find More Information...........................................2
The Company...................................................................3
Risk Factors..................................................................3
Use of Proceeds...............................................................7
The Selling Stockholders......................................................8
Plan of Distribution..........................................................8
Experts.......................................................................10
ABOUT THIS PROSPECTUS
This Prospectus is a part of a registration statement (the
"Registration Statement") that we have filed with the Securities and Exchange
Commission (the "SEC") using a "shelf registration" process. You should read
both this Prospectus and any supplement together with additional information
described under "Where You Can Find More Information."
You should rely only on the information provided or incorporated by
reference in this Prospectus or any supplement. We have not authorized anyone
else to provide you with additional or different information. The Common Stock
is not being offered in any state where the offer is not permitted. You should
not assume that the information in this Prospectus or any supplement is accurate
as of any date other than the date on the front of such documents.
All references in this Prospectus to "Whittman-Hart," the "Company,"
"we," "us," or "our" mean Whittman-Hart, Inc. and its subsidiaries, except where
indicated.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms located at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at The Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661, and at Seven World Trade Center, Suite 1300, New
York, New York 10048. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our filings with the SEC are also
available to the public on the SEC's Internet web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file with the
SEC later will automatically update and supersede this information. The
following documents filed by us and any future filings made by us with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
until the Selling Stockholders sell all of the common stock offered hereby, are
incorporated by reference in this Prospectus:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(ii) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 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.
<PAGE>
YOU MAY REQUEST A COPY OF THESE FILINGS, AT NO COST, BY WRITING OR
TELEPHONING US AT WHITTMAN-HART, INC., 311 SOUTH WACKER DRIVE, 35TH FLOOR,
CHICAGO, ILLINOIS 60606; TELEPHONE NUMBER (312) 922-9200; ATTENTION: DAVID P.
SHELOW.
THE COMPANY
Because this is a summary, it does not contain all the information
about us that may be important to you. You should read the more detailed
information and the financial statements and related notes which are
incorporated by reference in this Prospectus.
The Company provides strategic information technology ("IT") business
solutions designed to improve our clients' productivity and competitive
position. We offer our 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. Some of the services we offer 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). We believe this breadth
of services fosters long-term client relationships, affords cross-selling
opportunities and minimizes our dependence on any single technology.
Whittman-Hart(R) is a registered trademark of the Company. Our address
is 311 South Wacker Drive, 35th Floor, Chicago, Illinois 60606, and our
telephone number is (312) 922-9200.
RISK FACTORS
You should carefully consider the following risk factors in addition to
the other information contained and incorporated by reference in this Prospectus
before purchasing our common stock. The risks and uncertainties described below
are not the only ones that we face. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also impair our
business operations.
ATTRACTION AND RETENTION OF EMPLOYEES
Our business involves the delivery of professional services and is
labor-intensive. Our success depends in large part upon our 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 we will be
able to attract and retain sufficient numbers of highly skilled technical
employees in the future. We have historically experienced turnover rates which
we believe are consistent with industry norms. An increase in this rate could
have a material adverse effect on our business, operating results and financial
condition, including our ability to secure and complete engagements.
MANAGEMENT OF GROWTH
We are currently experiencing rapid growth that has strained, and could
continue to strain, our managerial and other resources. Our ability to manage
the growth of our operations will require us to continue to improve our
operational, financial and other internal systems and to attract, develop,
motivate and retain our employees. If our management is unable to manage growth
or new employees are unable to achieve anticipated performance levels, then our
business and operating results could be materially and adversely affected.
PROJECT RISKS
Many of our engagements involve projects that are critical to the
operations of our clients' businesses and provide benefits that may be difficult
to quantify. Our failure or inability to meet a client's expectations in the
<PAGE>
performance of its services could result in a material adverse change to the
client's operations and therefore could give rise to claims against us or damage
our reputation, adversely affecting our business and operating results.
VARIABILITY OF QUARTERLY OPERATING RESULTS
Variations in our revenues and operating results occur from time to
time as a result of many factors. These factors include 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 our
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 our 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 us. In addition, our 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, we must maintain a sufficient
number of senior consultants to oversee existing client projects and assist with
our sales force in securing new client assignments.
COMPETITION
The information technology services market includes a large number of
competitors. It is also subject to rapid change and is highly competitive. Our
primary competitors include participants from a variety of market segments,
including "Big Five" 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, we compete with our clients' internal
resources, particularly where these resources represent a fixed cost to the
client. Such competition may impose additional pricing pressures on us. There
can be no assurance that we will compete successfully with our existing
competitors or with any new competitors.
RELIANCE ON KEY EXECUTIVES
Our success is highly dependent upon the efforts and abilities of our
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. The loss of the services of any of these key executives could
have a material adverse effect upon our business and operating results.
RAPID TECHNOLOGICAL CHANGE; DEPENDENCE ON NEW SOLUTIONS
Our success will depend in part on our 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 we will be successful in adequately addressing these
developments on a timely basis or that, if these developments are addressed, we
will be successful in the marketplace. In addition, there can be no assurance
that products or technologies developed by others will not render our services
uncompetitive or obsolete. Our failure to address these developments could have
a material adverse effect on our business and operating results.
<PAGE>
RISKS RELATED TO ACQUISITIONS
We have expanded and intend to continue to expand our operations
through the acquisition of additional businesses. There can be no assurance that
we will be able to identify, acquire or profitably manage additional businesses
or successfully integrate any acquired businesses 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 these special risks or effects could have a material adverse
effect on our business and operating results. Client satisfaction or performance
problems at one acquired firm could have a material adverse impact on our
reputation. In addition, there can be no assurance that acquired businesses, if
any, will achieve anticipated revenues and earnings. Our failure to manage our
acquisition strategy successfully could have a material adverse effect on our
business and operating results.
SIGNIFICANT INFLUENCE OF PRINCIPAL STOCKHOLDER
As of July 31, 1998, Mr. Bernard beneficially owned approximately 25.5%
of our 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.
INTELLECTUAL PROPERTY RIGHTS
Our success is dependent upon certain methodologies we utilize in
designing, installing and integrating computer software and systems and other
proprietary intellectual property rights. Our business includes the development
of custom software in connection with specific client engagements. Ownership of
such software is generally assigned to the client. We also develop certain
foundation and application software products, or software "tools," which remain
our property.
We rely 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 we
license intellectual property. We enter into confidentiality agreements with our
employees and limit distribution of proprietary information. There can be no
assurance that the steps taken by us in this regard will be adequate to deter
misappropriation of proprietary information or that we will be able to detect
unauthorized use and take appropriate steps to enforce our intellectual property
rights.
We believe that our services do not infringe on the intellectual
property rights of others and that we have all rights necessary to utilize the
intellectual property employed in our business. However, we are subject to the
risk of claims alleging infringement of third-party intellectual property
rights. Any such claims could require us 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
We undertake certain projects billed on a fixed-bid basis, which is
distinguishable from our principal method of billing on a time and materials
basis. We also undertake other projects on a fee-capped basis. Our failure to
complete such projects within budget or below the cap would expose us to risks
associated with cost overruns. Such cost overruns could have a material adverse
effect on our business and operating results.
STOCK PRICE VOLATILITY
Our common stock's market price has and could continue to fluctuate
substantially. Reasons for such fluctuations include quarterly fluctuations in
results of operations, adverse circumstances affecting the introduction or
<PAGE>
market acceptance of new products and services that we offer and new product and
service announcements 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 our common stock may also be affected by our
ability to meet analysts' expectations. Any failure to meet such expectations,
even if minor, could significantly decrease the market price of the 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 us could result in substantial costs and a diversion of management's
attention and resources, which could have a material adverse effect on our
business and operating results.
CERTAIN ANTI-TAKEOVER EFFECTS
Our 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. Our directors are divided into three classes
and are elected to serve staggered three-year terms. Our Board of Directors 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 us by
means of a tender offer, merger, proxy contest or otherwise. In addition, this
"blank-check" preferred stock, and any issuance thereof, may significantly
decrease the market price of the common stock.
YEAR 2000
We have identified three issues related to Year 2000 compliance; first
is the affect on our internal information systems, second are issues related to
our vendors performing services for us, and finally are the issues related to
our consulting activities. We are in the process of replacing our existing
internal information systems. This initiative is expected to be completed in the
third quarter of 1999. A contingency plan exists to make existing systems Year
2000 compliant by the end of the third quarter 1999 in the unlikely event the
new systems' implementation cannot be completed. The cost of this implementation
is not expected to have a material adverse impact on the Company's results of
operations or financial condition.
We have relationships with several vendors who provide administration
of compensation and related employee benefits and other vendors who perform
banking and treasury services. We are in the process of evaluating the state of
readiness of these vendors and expects to complete our assessment in the first
quarter of 1999. Contingency plans are in place to administer employee
compensation and benefits in the event of non-compliance by any of these
vendors. The cost to us in the event of non-compliance with Year 2000 issues by
any of these third parties is not expected to have material impact on our
results of operations or financial condition.
We believe 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, we believe that
companies' need to address their Year 2000 compliance is creating significant
demand for our products and services. The passage of the Year 2000 could have a
material adverse effect on the demand for our services. We provide solutions for
IT systems that are critical to companies' operations. Business interruptions,
loss or corruption of data or other major problems resulting form the failure of
a client's IT system to process year 2000 data correctly could have a
significant adverse consequences to that client. We cannot currently predict
whether or to what extent there will be any legal claims brought against us or
whether there will be any other material adverse effect on our business,
financial condition or the results of operations, as a result of any such
adverse consequences to our clients.
<PAGE>
INTERNATIONAL
In November 1997, we began our international operations through the
acquisition of Axis Consulting International, Inc. and World Consulting Limited.
As a result of these acquisitions, we recruit consultants and generate a portion
of our revenues from outside the United States. We believe that our
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
We do not anticipate paying any cash dividends on our common stock in
the foreseeable future.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock by
the Selling Stockholders.
<PAGE>
THE SELLING STOCKHOLDERS
The following table sets forth certain information regarding the
Selling Stockholders, including (i) the name of each Selling Stockholder, (ii)
the beneficially ownership of common stock of each Selling Stockholder as of
March 15, 1999, and (iii) the maximum number of shares of common offered by each
Selling Stockholder. The information presented is based on data furnished to the
Company by the Selling Stockholders.
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 of 1933 (the "Securities
Act"), Selling Stockholders may also offer and sell additional shares of common
stock issued as a result of stock splits, stock dividends and anti-dilution
provisions.
SHARES BENEFICIALLY OWNED PRIOR
TO OFFERING (1)
------------------------------- SHARES BEING
NUMBER PERCENT OFFERED
----------------------- ------- ------------
Kurt Salmon Associates, Inc. 147,244 * 73,622
John M. Dacey, Jr. (2) 402,788 * 201,394
Marie Lopitito Dacey (3) 26,042 * 13,021
- ---------------------
*Less than 1%
(1) Consists of shares acquired in connection with the Company's acquisition of
Waterfield Technology Group, Inc. ("WTG"). In connection with the
acquisition, the above stockholders received registration rights covering
50% of the shares of Common Stock that such stockholder received in the
Company's acquisition of WTG.
(2) Does not include shares held by Mr. Dacey's wife, as trustee of certain
trusts for his children.
(3) As trustee for the 1997 Trust For Michael I. Dacey and the 1997 Trust For
Lisa M. Dacey (13,021 shares allocated to each trust). Ms. Dacey is the
wife of Mr. Dacey.
RELATIONSHIPS WITH THE COMPANY
The shares being sold by the Selling Stockholders were issued in
connection with our acquisition of WTG, a Boston based IT service provider, in
March 1999. In consideration for all of the capital stock of WTG, the Company
issued to WTG stockholders a total of 576,074 shares of Common Stock.
In connection with the acquisition, the Company granted to the WTG
stockholders certain registration rights to register 50% of the Common Stock
that the WTG stockholders received in the acquisition (288,037 shares). The
shares to be sold under this Prospectus are the shares for which the WTG
stockholders have registration rights.
In connection with the Company's acquisition of WTG, the Company
entered in an employment agreement with Mr. Dacey. The employment agreement
contains 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:
<PAGE>
o the shares may be sold by the Selling Stockholders or their
respective pledgees, donees, transferees or successors in
interest, 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;
o each sale may be made either at market prices prevailing at the
time of such sale or at negotiated prices;
o 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
o 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 common stock 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 common stock.
In offering the common stock 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
common stock 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 common stock will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states, the common stock may not be sold
unless the common stock 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 of 1934 (the "Exchange Act"), any person engaged in the
distribution of the common stock 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 common
stock by the Selling Stockholders. The foregoing may affect the marketability of
the common stock.
The Company will bear all expenses of the offering of the common stock,
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.
<PAGE>
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 LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing
<PAGE>
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................................... $ 2,326
Fees and expenses of counsel........................... 10,000
Fees and expenses of accountants....................... 2,000
*Nasdaq listing fees and expenses....................... -
Miscellaneous.......................................... 2,674
--------
Total.............................................. $17,000
- ----------------
*Previously 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.
<PAGE>
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, incorporated herein by reference to the
Company's Registration Statement on Form S-1 (No. 333-1778).
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.
<PAGE>
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 March 15, 1999.
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 March 15, 1999.
SIGNATURE TITLE
- --------- -----
/s/ Robert F. Bernard Chief Executive Officer and Chairman of the Board of
Robert F. Bernard Directors (Principal Executive Officer)
/s/ Kevin M. Gaskey Chief Financial Officer and Treasurer (Principal
Kevin M. Gaskey 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 5.1
March 16, 1999
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
288,037 shares (the "Shares") of the common stock of the Company, $.001 par
value (the "Common Stock").
We have examined or considered all such documents, corporate records,
officer's certificates and certificates of public officials, and other
instruments as we have deemed necessary or appropriate for the purposes of the
opinion set forth below. 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.
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,
McDERMOTT, WILL & EMERY
Exhibit 23.1
CONSENT OF KPMG LLP
The Board of Directors
Whittman-Hart, Inc.:
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Whittman-Hart, Inc. of our reports 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 reports appear
in the December 31, 1997 annual report on Form 10-K of Whittman-Hart, Inc. and
to the references to our firm under the heading "Experts" in the prospectus.
KPMG LLP
Chicago, Illinois
March 12, 1999
