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As filed with the Securities and Exchange Commission on July 7, 2000
Registration No. ___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FIRST CONSULTING GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-3539020
(State of Incorporation) (I.R.S. Employer Identification No.)
111 W. OCEAN BLVD.
LONG BEACH, CALIFORNIA 90802
(Address of principal executive offices)
1997 EQUITY INCENTIVE PLAN, AS AMENDED
2000 ASSOCIATE STOCK PURCHASE PLAN
(Full title of the plans)
ROBERT R. HOLMEN
VICE PRESIDENT & GENERAL COUNSEL
FIRST CONSULTING GROUP, INC.
111 W. OCEAN BLVD.
LONG BEACH, CALIFORNIA 90802
(562) 624-5200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
---------------------------- ---------------- ------------------------ ------------------------- --------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered (1) Share (2) Price (2) Registration Fee
---------------------------- ---------------- ------------------------ ------------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, par value 1,500,000 $6.44 $9,660,000.00 $2,550.24
$.001 per share
---------------------------- ---------------- ------------------------ ------------------------- --------------------
</TABLE>
(1) Includes 1,000,000 shares issuable under the 1997 Equity Incentive Plan, as
amended (the "1997 Plan"), and 500,000 shares reserved for issuance under
the 2000 Associate Stock Purchase Plan (the "ASPP"). Excludes 3,500,000
shares issuable under the 1997 Plan, which shares previously were
registered with the Securities and Exchange Commission on Form S-8.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h)(1). The price per share and
aggregate offering price are based upon the average of the high and low
trading prices of registrant's Common Stock of $6.44 as reported on the
Nasdaq National Market on July 5, 2000 for 1,000,000 shares available for
issuance under the 1997 Plan and 500,000 shares available for issuance
under the ASPP.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose
of registering: (i) 1,000,000 shares of the Registrant's Common Stock to be
issued pursuant to Registrant's 1997 Equity Incentive Plan, as amended, and (ii)
500,000 shares of the Registrant's Common Stock reserved for issuance under
Registrant's 2000 Associate Stock Purchase Plan.
Page 1 of 9
Exhibit Index appears on Page 6
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by First Consulting Group, Inc., a
Delaware corporation ("FCG"), with the Securities and Exchange Commission are
incorporated by reference into this Registration Statement:
(a) FCG's Registration Statement on Form S-8, filed June 4, 1998;
(b) FCG's Registration Statement on Form S-8, filed March 29, 2000;
(c) FCG's Annual Report on Form 10-K for the year ended December 31,
1999;
(d) FCG's Quarterly Report on Form 10-Q for the quarter ended March 31,
2000; and
(e) The description of FCG's Common Stock contained in FCG's
Registration Statement on Form 8-A, filed January 22, 1998 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by FCG pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 of this registration
statement from the date of the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Robert R. Holmen, who has passed on certain legal matters with respect
to the validity of the shares offered hereby, is Vice President, General Counsel
and Secretary of FCG. Mr. Holmen is eligible for benefits under the 1997 Plan
and the ASPP. Mr. Holmen is the beneficial owner of 22,519 shares of FCG common
stock, including 4,010 shares subject to stock options under the 1997 Plan
exercisable within 60 days of June 30, 2000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, FCG has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act").
FCG's Bylaws provide that FCG will indemnify its directors and
executive officers and may indemnify its other officers, employees and other
agents to the fullest extent permitted by Delaware law. FCG is also empowered
under its Bylaws to enter into indemnification contracts with its directors and
officers and to purchase insurance on behalf of any person it is required or
permitted to indemnify. Pursuant to this provision, FCG has entered into
indemnification agreements with each of its directors and executive officers.
FCG has obtained officer and director liability insurance with respect to
liabilities arising out of certain matters, including matters arising under the
Securities Act. In addition, FCG's Certificate of Incorporation provides that,
to the fullest extent permitted by Delaware law, FCG's directors will not be
liable for monetary damages for breach of the directors' fiduciary duty of care
to FCG and its stockholders. This provision in the Certificate of Incorporation
does not eliminate the duty of care, and in appropriate circumstances, equitable
remedies such as an injunction or other forms of non-monetary relief would
remain available under Delaware law. Under current Delaware law, a directors'
liability to FCG or its stockholders may not be limited with respect to any
breach of the director's duty of loyalty to FCG or its stockholders, for acts or
omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for any transaction from which the director derived an
improper distribution to stockholders and loans to
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directors and officers. This provision also does not effect a director's
responsibilities under any other laws such as the federal securities laws or
state or federal environmental laws.
FCG has entered into agreements with its directors and officers that
require the Registrant to indemnify such persons against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director or executive officer of FCG or
any of its affiliated enterprises. No indemnity will be provided, however, to
any director or executive officer on account of conduct that is knowingly
fraudulent or deliberately dishonest or constitutes willful misconduct. No
indemnification will be available if such indemnification is unlawful, or in
respect of any accounting of profits made from the purchase or sale of
securities of FCG in violation of Section 16(b) of the Exchange Act. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1 * Certificate of Incorporation
4.2 * Bylaws
4.3 * Specimen Stock Certificate
5.1 Opinion of Robert R. Holmen, General Counsel
23.1 Consent of Grant Thorton LLP, Independent Accountants
23.2 Consent of KPMG LLP, Independent Accountants
23.3 Consent of Robert R. Holmen (included in Exhibit 5.1 hereto)
24.1 Power of Attorney (included on signature pages)
99.1 * FCG's 1997 Equity Incentive Plan (the "1997 Plan")
99.2 * Form of Incentive Stock Option under the 1997 Plan
99.3 * Form of Non-Qualified Stock Option under the 1997 Plan
99.4 ** FCG's 2000 Associate Stock Purchase Plan
99.5 ** FCG's 2000 Associate Stock Purchase Plan Offering, adopted
October 26, 1999
</TABLE>
* Documents incorporated by reference from FCG's Registration Statement on
Form S-1, as amended (File No. 333-41121), declared effective February 12,
1998.
** Documents incorporated by reference from FCG's Annual Report on Form 10-K
for the year ended December 31, 1999.
ITEM 9. 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:
(i) To include any prospectus required by Section 10(a)(3) of
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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
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would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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)(i) and (ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) o the Exchange Act that are
incorporated by reference in the registration statement.
(b) 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.
(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.
2. 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
3. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange 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 that 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Consulting Group, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing of Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Long Beach, State of California, on
June 19, 2000.
FIRST CONSULTING GROUP, INC.
/s/ Luther J. Nussbaum
-----------------------------------------------
Luther J. Nussbaum
Chief Executive Officer & Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints LUTHER J. NUSSAUM and ROBERT R. HOLMEN,
or any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, 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 connection therewith, 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
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 in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Luther J. Nussbaum Chief Executive Officer June 19, 2000
------------------------------------ and Chairman of the Board
Luther J. Nussbaum
/s/ Walter J. McBride Executive Vice President and June 19, 2000
------------------------------------ Chief Financial Officer
Walter J. McBride
/s/ Steven Heck Director June 19, 2000
------------------------------------
Steven Heck
/s/ Steven Lazarus Director June 19, 2000
------------------------------------
Steven Lazarus
Director June 19, 2000
------------------------------------
David S. Lipson
/s/ Stanley R. Nelson Director June 19, 2000
------------------------------------
Stanley R. Nelson
Director June 19, 2000
------------------------------------
Stephen E. Olson
/s/ Scott S. Parker Director June 19, 2000
------------------------------------
Scott S. Parker
/s/ Fatima Reep Director June 19, 2000
------------------------------------
Fatima Reep
/s/ Jack O. Vance Director June 19, 2000
------------------------------------
Jack O. Vance
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
------ ----------- --------
<S> <C> <C>
5.1 Opinion of Robert R. Holmen, General Counsel 7
23.1 Consent of Grant Thorton LLP, Independent Accountants 8
23.2 Consent of KPMG LLP, Independent Accountants 9
23.3 Consent of Robert R. Holmen (included in Exhibit 5.1) 7
24.1 Power of Attorney (included on signature pages) 5
</TABLE>
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