<PAGE>
Registration No. 333-_____________
As filed with the Securities and Exchange Commission on June 27, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
THE METZLER GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-4094854
(State or other Jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
520 Lake Cook Road, Suite 500 (847) 945-0001
Deerfield Illinois 60015 (Telephone number, including
(Address, including Zip Code, of area code, of registrant's
registrant's principal executive offices) principal executive offices)
THE METZLER GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN
Robert P. Maher
Chief Executive Officer
The Metzler Group, Inc.
520 Lake Cook Road, Suite 500
Deerfield, Illinois 60015
(847) 945-0001
(Name, address, including zip code and telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of each class Proposed maximum Proposed maximum
of securities to be Amount to be offering price per aggregate offering Amount of
registered* registered** share*** price*** registration fee***
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 300,000 $28.3125 $8,493,750 $2,574
=====================================================================================================================
</TABLE>
* In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests pursuant
to the employee benefit plan described herein.
** This Registration Statement includes any additional shares of the
registrant's Common Stock that may be issued pursuant to antidilution provisions
contained in the plan.
*** Pursuant to Rule 457(h), the registration fee was computed on the basis of
the average of the high and low prices of the registrant's Common Stock on the
Nasdaq National Market on June 20, 1997.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by The Metzler
Group, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference in this Registration Statement,
except to the extent that any statement or information therein is modified,
superseded or replaced by a statement or information contained in any other
subsequently filed document incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the period ended March
31, 1997; and
(c) the description of the Company's Common Stock, $0.01 par value per
share, contained in the Company's Registration Statement on Form 8-A,
dated September 16, 1996, including any amendment or report filed for
the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by the Delaware General Corporation Law, the Company's
Certificate of Incorporation provides that directors of the Company shall not be
personally liable for monetary damages to the Company for certain breaches of
their fiduciary duty as directors, unless they violated their duty of loyalty to
the Company or its stockholders, acted in bad faith, knowingly or intentionally
violated the law, authorized illegal dividends or redemptions, or derived an
improper personal benefit from their action as directors. This provision would
have no effect on the availability of equitable remedies or nonmonetary relief,
such as an injunction or rescission for
2
<PAGE>
breach of the duty of care. In addition, the provision applies only to claims
against a director arising out of his or her role as a director and not in any
other capacity (such as an officer or employee of the Company). Further,
liability of a director for violations of the federal securities laws will not
be limited by this provision. Directors will, however, no longer be liable for
monetary damages arising from decisions involving violations of the duty of care
which could be deemed grossly negligent.
The Certificate of Incorporation provides that directors and officers of
the Company shall be indemnified by the Company to the fullest extent authorized
by Delaware law, as it now exists or may in the future be amended, against all
expenses and liabilities reasonably incurred in connection with service for or
on behalf of the Company. The Certificate of Incorporation also authorizes the
Company to enter into one or more agreements with any person that provide for
indemnification greater or different from that provided in the Certificate of
Incorporation. The Company has entered into indemnification agreements with all
current members of the Board of Directors and executive officers. The Company
believes that these provisions and agreements are desirable to attract and
retain qualified directors and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index which is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in
3
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periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to officers, directors, and controlling persons of the
registrant pursuant to the registrant's certificate of incorporation or by-
laws, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer,
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
4
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SIGNATURES
The Registrant. 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-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Village of Deerfield, State of Illinois, on the 27th day
of June, 1997.
The Metzler Group, Inc.
By: /s/ Robert P. Maher
-------------------------------
Robert P. Maher
Chief Executive Officer
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POWER OF ATTORNEY
-----------------
The undersigned hereby appoint Robert P. Maher as my attorney-in-fact to
execute and file in my name and on my behalf, in all capacities as an officer or
director of The Metzler Group, Inc., Registration Statements on Form S-8 and all
amendments thereto (including post-effective amendments) to be filed with the
Securities and Exchange Commission, relating to the issuance, through The
Metzler Group, Inc. Employee Stock Purchase Plan, of common stock of The Metzler
Group, Inc., par value $0.01 per share.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney on
the 27th day of June, 1997.
/s/ Peter B. Pond /s/ James T. Ruprecht
- ----------------------------- -----------------------------------
Peter B. Pond James T. Ruprecht
/s/ Gerald R. Lanz /s/ Mitchell H. Saranow
- ----------------------------- -----------------------------------
Gerald R. Lanz Mitchell H. Saranow
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in their
respective capacities on this 27th day of June, 1997.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Robert P. Maher
- ----------------------------- Chairman of the Board, President, Chief
Robert P. Maher Executive Officer and Director (Principal
Executive Officer)
/s/ James F. Hillman Chief Financial Officer and Treasurer
- ----------------------------- (Principal Financial Officer and Principal
James F. Hillman Accounting Officer)
/s/ Gerald R. Lanz
- ----------------------------- Director
Gerald R. Lanz
/s/ James T. Ruprecht
- ----------------------------- Director
James T. Ruprecht
/s/ Peter B. Pond
- ----------------------------- Director
Peter B. Pond
/s/ Mitchell H. Saranow
- ----------------------------- Director
Mitchell H. Saranow
</TABLE>
6
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, The
Metzler Group, Inc. Employee Stock Purchase Plan has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Village of Deerfield, State of Illinois, on the 27th day
of June, 1997.
By: /s/ Robert P. Maher
------------------------------------
On behalf of the Committee
7
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------ ----------------------
4.1 Amended and Restated Certificate of Incorporation of The Metzler
Group, Inc.*
4.2 By-Laws of The Metzler Group, Inc.*
4.3 The Metzler Group, Inc. Employee Stock Purchase Plan
5 Opinion of Sachnoff & Weaver, Ltd.
23 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (contained on the signature page hereto)
* Incorporated by reference from the Registrant's Form S-1
Registration Statement No. 333-9019 as filed with the SEC on July
26, 1996.
<PAGE>
EXHIBIT 4.3
THE METZLER GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The purpose of The Metzler Group, Inc. Employee Stock Purchase Plan is to
provide eligible Employees of The Metzler Group, Inc. and its Affiliates with an
opportunity to acquire a proprietary interest in the Company through the
purchase of Common Stock of the Company on a payroll deduction basis. It is
believed that participation in the ownership of the Company will be to the
mutual benefit of the eligible Employees and the Company. It is intended that
this Plan shall constitute an "employee stock purchase plan" within the meaning
of Section 423 of the Internal Revenue Code of 1986, as amended. The provisions
of the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of Code Section 423.
2. DEFINITIONS
Unless otherwise specified or unless the context otherwise requires, the
following terms, as used in this Plan, have the following meanings. Wherever
appropriate, words used in the singular shall be deemed to include the plural
and vice versa, and the masculine gender shall be deemed to include the feminine
gender.
(a) Account means the funds accumulated with respect to an Employee as a
result of deductions from his paycheck for the purpose of purchasing Common
Stock under the Plan. The funds allocated to an Employee's Account shall
remain the property of the Employee at all times prior to the purchase of
the Common Stock, but may be commingled with the assets of the Company and
used for general corporate purposes. No interest shall be paid or accrued
on any funds accumulated in the Accounts of Employees.
(b) Affiliate means a corporation, as defined in Section 424(f) of the
Code, that is a parent or subsidiary of the Company, direct or indirect.
(c) Board means the Board of Directors of the Company.
(d) Code means the Internal Revenue Code of 1986, as amended.
(e) Committee means the committee to which the Board delegates the power to
act under or pursuant to the provisions of the Plan, or the Board if no
committee is selected.
(f) Common Stock means the shares of common stock of the Company, $.01 par
value.
<PAGE>
(g) Company means The Metzler Group, Inc., a Delaware corporation, and any
corporate successor to all or substantially all of the assets or voting
stock of the Company.
(h) Compensation means the compensation paid to an Employee by the Company
during a payroll period for federal income tax purposes, as reported on an
Employee's Form W-2 (or comparable reporting form) for income tax
withholding purposes.
(i) Effective Date means the date the Plan is adopted by, and made
effective by, the Board, subject to the limitations of Section 16.
(j) Employee means any person who is employed by the Company or an
Affiliate on a regular full-time basis. A person shall be considered
employed on a regular full-time basis if he is customarily employed for
more than twenty (20) hours per week.
(k) Offering Date means the date on which the Committee grants Employees
the option to purchase shares of Common Stock.
(l) Offering Period means the period between the Offering Date and the
Purchase Date.
(m) Purchase Date means the date on which the Committee purchases the
shares of Common Stock, which date shall be the last day of an Offering
Period.
(n) Participant means an Employee who elects to participate in the Plan.
(o) Plan means The Metzler Group, Inc. Employee Stock Purchase Plan.
3. ELIGIBILITY
All Employees of the Company and, if designated by the Board, any
Affiliate, who are employed by the Company and/or such designated Affiliate on
the Effective Date, shall be eligible to participate in the Plan on the
Effective Date. Subject to the enrollment limitations of Section 6, each other
Employee of the Company and/or a designated Affiliate shall be eligible to
participate on the first to occur of (i) the Offering Date coincident with or
next following the Employee's first day of employment, or (ii) the first day of
any calendar month coincident with or next following the Employee's first day of
employment.
4. ADMINISTRATION
The Plan shall be administered by the Committee, which shall consist of not
less than two (2) members of the Board. Subject to the provisions of the Plan,
the Committee shall be vested with full authority to make, administer, and
interpret such rules and regulations as it deems necessary to administer the
Plan, and any determination, decision, or action of the Committee in connection
with the construction, interpretation, administration, and application of the
Plan shall
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be final, conclusive, and binding upon all Participants and any and all persons
claiming under or through any Participant. Notwithstanding anything to the
contrary in the Plan, the Committee shall have the discretion to modify the
terms of the Plan with respect to Participants who reside outside of the United
States or who are employed by a subsidiary of the Company that has been formed
under the laws of any foreign country, if such modification is necessary in
order to conform such terms to the requirements of local laws.
5. STOCK
(a) The Common Stock to be sold to Participants under the Plan may, at the
election of the Company, be either treasury shares, shares acquired on the
open market, and/or shares originally issued for such purpose. The
aggregate number of shares of Common Stock that shall be made available for
purchase under the Plan shall not exceed three hundred thousand (300,000)
shares, subject to adjustment upon changes in capitalization of the Company
as provided in subparagraph (b) below. If the total number of shares that
otherwise would have been acquired under the Plan on any Purchase Date
exceeds the number of shares of Common Stock then available under the Plan,
the Company shall make a pro rata allocation of the shares remaining
available in as nearly a uniform manner as shall be practicable and as it
shall determine to be equitable. In such event, the payroll deductions to
be made pursuant to the Participants' authorizations shall be reduced
accordingly, or refunded to the Participants, as the case may be, and the
Company shall give written notice of such reduction or refund to each
affected Participant.
(b) Appropriate adjustments in the aggregate number of shares of Common
Stock that shall be made available for purchase under the Plan shall be
made to give effect to any mergers, consolidations, acquisitions,
reorganizations, stock splits, stock dividends, or other relevant changes
in the capitalization of the Company occurring after the Effective Date.
The establishment of the Plan shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations, or changes in its capital or business structure or to
merge, consolidate, dissolve, liquidate, sell, or otherwise transfer all or
any part of its business or assets. Adjustments under this Section 5 shall
be made in the sole discretion of the Committee, and its decision shall be
binding and conclusive.
(c) A Participant shall not have any interest in shares covered by his
authorized payroll deduction until shares of Common Stock are acquired for
his Account.
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<PAGE>
6. PARTICIPATION
(a) Each Employee may become a Participant in the Plan by authorizing a
payroll deduction on a form provided by the Committee. Such authorization
shall become effective on the first day of the month (or the next Offering
Date, if earlier) following the delivery of the authorization form to the
Committee; provided (i) that the Employee is eligible under Section 3 to
participate in the Plan on such day and (ii) that if the authorization form
is delivered to the Committee less than fifteen (15) days prior to the end
of any month (or prior to an Offering Date, if applicable), it shall become
effective on the first day of the month that is fifteen (15) or more days
following delivery of the authorization form to the Committee.
(b) At the time an Employee files his authorization for a payroll
deduction, he shall elect to have deductions made from each paycheck that
he receives, such deductions to continue until the Participant withdraws
from the Plan or otherwise becomes ineligible to participate in the Plan.
Authorized payroll deductions shall be for a minimum of one percent (1%)
and a maximum of fifteen percent (15%) of the Participant's Compensation.
The deduction rate so authorized shall continue in effect through the
Offering Period and each succeeding Offering Period, except to the extent
such rate is changed in accordance with the following guidelines:
(i) The Participant may, at any time during any Offering Period,
reduce his rate of payroll deduction by filing an authorization form
with the Company; and
(ii) The Participant may, at any time during any Offering Period,
increase the rate of his payroll deduction by filing an authorization
form with the Committee. The Participant may not, however, effect
more than one (1) such increase per Offering Period.
New deduction rates shall become effective as soon as practicable after the
authorization form is filed with the Committee.
(c) All Compensation deductions made for a Participant shall be credited
to his Account. Except as may otherwise be provided by the Committee under
Section 4, a Participant may not make any separate cash payment into his
Account.
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<PAGE>
7. PURCHASE OF SHARES
(a) On the date when a Participant's authorization form for a deduction
becomes effective, and on each Offering Date thereafter, he shall be deemed
to have been granted an option to purchase as many full shares of Common
Stock as he will be able to purchase with the Compensation deductions
credited to his Account during the payroll periods within the applicable
Offering Period for which the Compensation deductions are made. In
addition to the foregoing, any cash dividends paid on shares of Common
Stock held in his Account shall be added to the Account, and used to
purchase Common Stock as otherwise provided herein.
(b) The purchase price for the shares of Common Stock to be purchased with
payroll deductions from the Participant shall be equal to eighty-five
percent (85%) of the lesser of (i) the "fair market value" of a share of
Common Stock on the Offering Date (or, if later, on the date the
Participant's authorization form becomes effective, as set forth in Section
6), or (ii) the "fair market value" of a share on the Purchase Date.
However, if a Participant enters the Plan on other than the Offering Date,
the clause (i) amount shall in no event be less than the fair market value
per share of Common Stock on the Offering Date. Fair market value shall be
defined as the closing sales price of the Common Stock on the largest
national securities exchange on which such Common Stock is listed at the
time the Common Stock is to be valued. If the Common Stock is not then
listed on any such exchange, the fair market value shall be the closing
sales price if such is reported or otherwise the mean between the closing
"Bid" and the closing "Ask" prices, if any, as reported in the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") for
the date of valuation, or if none, on the most recent trade date thirty
(30) days or less prior to the date of valuation for which such quotations
are reported. If the Common Stock is not then listed on any such exchange
or quoted in NASDAQ, the fair market value shall be the mean between the
average of the "Bid" and the average of the "Ask" prices, if any, as
reported in the National Daily Quotation Service for the date of valuation,
or, if none, for the most recent trade date thirty (30) days or less prior
to the date of valuation for which such quotations are reported. If the
fair market value cannot be determined under the preceding three sentences,
it shall be determined in good faith by the Committee.
8. TIME OF PURCHASE
From time to time, the Committee shall grant to each Participant an option
to purchase shares of Common Stock in an amount equal to the number of shares of
Common Stock that the accumulated payroll deductions to be credited to his
Account during the Offering Period may purchase at the applicable purchase
price. Each Offering Period shall be for a specified period of time to be fixed
by the Committee and shall be for no less than one month and no more than
twenty-seven (27) months' duration. Each Participant who elects to purchase
shares of Common Stock hereunder shall be deemed to have exercised his option
automatically on such date of purchase. Administrative and commission costs on
purchases shall be paid by the Company. The Committee shall cause to be
delivered periodically to each Participant a statement showing
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the aggregate number of shares of Common Stock in his Account, the number of
shares of Common Stock purchased for him in the preceding Offering Period, his
aggregate Compensation deductions for the preceding Offering Period, the price
per share paid for the shares of Common Stock purchased for him during the
preceding Offering Period, and the amount of cash, if any, remaining in his
Account at the end of the preceding Offering Period.
A Participant may request delivery to him of the cash in his Account or of
the shares of Common Stock held in his Account at any time (subject to any
limitations imposed by Section 16(b) of the Securities Exchange Act of 1934),
and the delivery thereof shall be made at such regular time as the Company or
its transfer agent shall determine. If such delivery is required at a time other
than the normal transfer date set by the Company or its transfer agent, the
Participant requesting such transfer shall pay the costs thereof. All of the
cash deposits in his Account shall be paid to him promptly after receipt of
notice of withdrawal, without interest. Shares of Common Stock to be delivered
to a Participant under the Plan shall be registered in the name of the
Participant or, if the Participant so directs in writing to the Committee, in
the name of the Participant and such person(s) as may be designated by the
Participant, to the extent permitted by applicable law, and delivered to the
Participant as soon as practicable after the request for a withdrawal. If a
Participant wishes to sell the shares of Common Stock in his Account, he may
notify the Committee to sell the same, in lieu of a distribution of such shares,
in which event all commission costs incurred in connection with the sale of the
shares of Common Stock shall be borne by the Participant. The Company shall pay
administrative costs associated therewith other than costs arising from a sale
occurring at a time different from the prearranged dates set by the Company or
its transfer agent for making such sales.
9. CESSATION OF PARTICIPATION
A Participant may cease participation in the Plan at any time by notifying
the Committee in writing of his intent to cease his participation. If such
notice is received by the Committee the Company shall distribute to the
Participant all of his accumulated payroll deductions, without interest. If any
Participant ceases participation in the Plan, no further Compensation deductions
shall be made on his behalf after the effective date of his cessation, except in
accordance with a new authorization form filed with the Committee as provided in
Section 6.
10. INELIGIBILITY
An Employee must be employed by the Company or an Affiliate on the Purchase
Date in order to participate in the purchase for that Offering Period. If an
option expires without first having been exercised, all funds credited to the
Participant's Account shall be refunded without interest. If a Participant
becomes ineligible to participate in the Plan at any time, all Compensation
deductions made on behalf of the Participant that have not been used to purchase
shares of Common Stock shall be paid to the Participant within sixty (60) days
after the Committee determines that the Participant is not eligible to
participate in the Plan.
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11. DESIGNATION OF BENEFICIARY
A Participant may file a written designation of a beneficiary who shall
receive any shares of Common Stock (or remaining Compensation deductions)
credited to the Participant's Account under the Plan in the event of such
Participant's death prior to delivery to him of the certificates for such shares
(or remaining Compensation deductions). The designation of a beneficiary may be
changed by the Participant at any time by written notice given in accordance
with rules and procedures established by the Committee. Upon the death of a
Participant, and upon receipt by the Company of proof of the identity and
existence, at the Participant's death, of a beneficiary validly designated by
him under the Plan, the Company shall deliver such shares of Common Stock (or
remaining Compensation deductions) to such beneficiary. In the event of the
death of the Participant, and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such Participant's death, the
Company shall deliver such shares (or remaining Compensation deductions) to the
executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed, the Company, in its sole
discretion, may deliver such shares (or remaining Compensation deductions) to
the Participant's spouse or to any one or more dependents or relatives of the
Participant, or to such other person or persons as the Company may designate on
behalf of the estate of such deceased Participant.
12. TRANSFERABILITY
Neither Compensation deductions credited to a Participant's Account nor any
rights with regard to Plan participation or the right to purchase shares of
Common Stock under the Plan may be assigned, transferred, pledged, or otherwise
disposed of in any way by a Participant other than by will or the laws of
descent and distribution; provided, however, that shares of Common Stock
purchased on behalf of a Participant and left in his Account shall be subject to
his absolute control. Any attempted assignment, transfer, pledge, or other
disposition shall be void and without effect.
13. AMENDMENT OR TERMINATION
The Board may, without further action on the part of the stockholders of
the Company, at any time amend the Plan in any respect, or terminate the Plan,
except that the Board may not, without consent of the stockholders:
(a) Permit the sale of more shares of Common Stock than are authorized
under Section 5;
(b) Permit Compensation deductions at a rate in excess of the rate set
forth herein;
(c) Change the class of Affiliates to whose Employees are eligible to
participate in the Plan; or
(d) Effect a change inconsistent with Section 423 of the Code or the
regulations issued thereunder.
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<PAGE>
14. NOTICES
All notices or other communications by a Participant under or in connection
with the Plan shall be deemed to have been duly given when received in writing
by the Chief Financial Officer of the Company or when received in the form
specified by the Committee at the location and by the person designated by the
Committee for the receipt thereof.
15. LIMITATIONS
Notwithstanding any other provisions of the Plan:
(a) The Company intends that this Plan shall constitute an employee stock
purchase plan within the meaning of Section 423 of the Code. Any
provisions required to be included in the Plan under said Section, and
under regulations issued thereunder, are hereby included as though set
forth in the Plan at length.
(b) No Employee shall be entitled to participate in the Plan if,
immediately after the grant of an option hereunder, the Employee would own
stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or an Affiliate. For
purposes of this Section 15, stock ownership shall be determined under the
rules of Section 424(d) of the Code and stock that the Employee may
purchase under outstanding options shall be treated as stock owned by the
Employee.
(c) No Employee shall be permitted to purchase Common Stock hereunder if
his right and option to purchase Common Stock under this Plan and under all
other employee stock purchase plans (as defined in Section 423 of the Code)
of the Company or any Affiliates would result in an entitlement to purchase
Common Stock in any one (1) calendar year in excess of a fair market value
of $25,000 (determined at the time of grant).
(d) All Employees shall have the same rights and privileges under the Plan,
except that the amount of Common Stock that may be purchased pursuant to
the Plan shall bear a uniform relationship to an Employee's Compensation.
All rules and determinations of the Committee shall be uniformly and
consistently applied to all persons in similar circumstances.
(e) Nothing in the Plan shall confer upon any Employee the right to
continue in the employment of the Company or any Affiliate or affect the
right that the Company or any Affiliate may have to terminate the
employment of such Employee.
(f) No Participant shall have any right as a stockholder unless and until
certificates for shares of Common Stock are issued to him or allocated to
his Account.
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<PAGE>
(g) If under any provision of the Plan that requires a computation of the
number of shares of Common Stock to be purchased, the number so computed is
not a whole number of shares of Common Stock, such number of shares of
Common Stock shall be rounded down to the next whole number.
(h) The Plan is intended to provide shares of Common Stock for investment
and not for resale. The Company does not, however, intend to restrict or
influence any Participant in the conduct of his own affairs. A
Participant, therefore, may sell shares of Common Stock purchased under the
Plan at any time he chooses, subject to compliance with any applicable
federal or state securities laws or any applicable Company restriction
periods; provided, however, that because of certain federal tax
requirements, each Participant shall agree, by entering the Plan:
(i) promptly to give the Company notice of any shares of Common Stock
disposed of within two (2) years after the date of grant of the
applicable option, or within one (1) year of the Purchase Date, and
the number of such shares disposed of (a "disqualifying disposition");
(ii) that the Company may withhold, pursuant to Code Sections 3102,
3301, and 3402, from his wages and other cash compensation paid to him
in all payroll periods following in the same calendar year, any
additional taxes the Company may become liable for in respect of
amounts includable in his income as additional compensation as a
result of a disqualifying disposition of Common Stock acquired under
the Plan, or as a result of the acquisition of Common Stock under the
Plan; and
(iii) that he shall repay the Company any amount of additional taxes
the Company may become liable for in respect of amounts includable in
his income as additional compensation as a result of a disqualifying
disposition of Common Stock acquired under the Plan, or as a result of
the acquisition of Common Stock under the Plan, that cannot be
satisfied by withholding from the wages and other cash compensation
paid to him by the Company.
(i) This Plan is intended to comply in all respects with applicable law and
regulations, including with respect to Participants who are officers or
directors for purposes of Section 16 of the Securities Exchange Act of
1934, as amended from time to time, Rule 16b-3 of the Securities and
Exchange Commission. In case any one or more provisions of this Plan shall
be held invalid, illegal, or unenforceable in any respect under applicable
law and regulation (including Rule 16b-3), the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and the invalid, illegal, or unenforceable provision
shall be deemed null and void; however, to the extent permitted by law, any
provision that could be deemed null and void shall first be construed,
interpreted, or revised retroactively to permit this Plan to be construed
in compliance with all applicable law (including Rule 16b-3), so as to
further the intent of this Plan. Notwithstanding anything herein to the
contrary, with respect to
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<PAGE>
Participants who are officers and directors for purposes of Section 16(b)
of the Securities Exchange Act of 1934, as amended from time to time, and
if required to comply with the rules promulgated thereunder, such
Participants shall not be permitted to direct the sale of any Common Stock
purchased hereunder until at six (6) months have elapsed from the date of a
purchase hereunder, unless the Committee determines that the sale of the
Common Stock otherwise satisfies the then current Rule 16b-3 requirements.
16. EFFECTIVE DATE AND APPROVALS
The Plan shall become effective at a time when:
(a) the Plan has been adopted by the Board; and
(b) a registration statement on Form S-8 under the Securities Act of 1933,
as amended, has become effective with respect to the Plan; and
(c) the Committee has notified the eligible Employees that they may
commence participation in the Plan; and
(d) the Plan is approved by the holders of a majority of the outstanding
shares of Common Stock of the Company, which approval must occur within the
period ending twelve (12) months after the date the Plan is adopted by the
Board. In the event such stockholder approval is not obtained, the Plan
shall terminate and have no further force or effect, and all amounts
collected from the Participants during any initial Offering Period(s)
hereunder shall be refunded.
Unless sooner terminated by the Board, or as set forth above, the Plan shall
terminate upon the earlier of (i) the tenth (10th) anniversary of the adoption
of the Plan by the Board, or (ii) the date on which all shares available for
issuance under the Plan shall have been sold under the Plan.
17. APPLICABLE LAW
All questions pertaining to the validity, construction, and administration of
the Plan shall be determined in conformity with the laws of Illinois, to the
extent not inconsistent with Section 423 of the Code and the regulations
thereunder.
Adopted the 14th day of March, 1997.
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<PAGE>
EXHIBIT 5
[LETTERHEAD OF SACHNOFF & WEAVER, LTD]
June 26, 1997
The Metzler Group, Inc.
520 Lake Cook Road
Suite 500
Deerfield, Illinois 60015
Re: Registration Statement on Form S-8
The Metzler Group, Inc. Employee Stock Purchase Plan
Gentlemen:
We have acted as counsel for The Metzler Group, Inc. (the "Company") in
connection with the Registration Statement on Form S-8 filed by the Company with
the Securities and Exchange Commission to effect the registration, pursuant to
the Securities Act of 1933, of 300,000 shares of common stock, $0.01 par value
(the "Common Stock"), which may be offered by the Company under the above-
referenced Plan.
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and upon
affidavits, certificates and statements of directors, officers and employees of,
and the accountants for, the Company. We also have examined originals or copies,
certified or otherwise identified to our satisfaction, of such corporate and
other instruments, documents and records as we have deemed relevant and
necessary to examine for the purpose of this opinion, including the Plan. In
addition, we have reviewed such questions of law as we have considered necessary
and appropriate for the purposes of this opinion.
We have assumed the accuracy and completeness of all documents and records
that we have reviewed, the genuineness of all signatures, the due authority of
the parties signing such documents, the authenticity of all documents submitted
to us as originals, the conformity to
<PAGE>
Sachnoff & Weaver, Ltd.
Attorneys at Law
The Metzler Group, Inc.
June 26, 1997
Page 2
original documents of all the documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents.
Based upon and subject to the foregoing, we advise you that, in our
opinion, the shares of Common Stock proposed to be offered by the Company as set
forth in the Registration Statement have been duly authorized and, when issued
and sold as set forth in the Registration Statement, and in accordance with The
Metzler Group, Inc. Employee Stock Purchase Plan referred to in the Registration
Statement, such shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement. In giving this consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the rules and regulations of
the Securities and Exchange Commission.
We express no opinions as to matters under or involving any laws other than
the laws of the State of Illinois, the federal laws of the United States of
America, and the General Corporation Law of the State of Delaware.
Very truly yours,
/s/ SACHNOFF & WEAVER, LTD.
SACHNOFF & WEAVER, LTD.
JLL/DRN/lba
<PAGE>
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
The Metzler Group, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-8 related to the Employee Stock Purchase Plan of The Metzler Group, Inc.
of our report dated February 6, 1997, relating to the consolidated balance
sheets of The Metzler Group, Inc. and subsidiary as of December 31, 1996 and
1995, and the related consolidated statements of operations, stockholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1996, which report appears in the December 31, 1996, annual report
on Form 10-K of The Metzler Group, Inc.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
June 27, 1997
