As filed with the Securities and Exchange Commission on December 30, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ANSWERTHINK CONSULTING GROUP, INC.
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(Exact name of registrant as specified in its charter)
FLORIDA 65-0750100
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1001 BRICKELL BAY DRIVE, SUITE 3000
MIAMI, FLORIDA 33131
(Address of principal executive offices)
ANSWERTHINK CONSULTING GROUP, INC. 1998 STOCK OPTION AND INCENTIVE PLAN
ANSWERTHINK CONSULTING GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
TED A. FERNANDEZ
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN
ANSWERTHINK CONSULTING GROUP, INC.
1001 BRICKELL BAY DRIVE, SUITE 3000
MIAMI, FLORIDA 33131
(305) 375-8005
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(Name, address and telephone number, including area code, of agent for service)
Copy to:
DAVID B.H. MARTIN, JR., ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE (2)
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<S> <C> <C> <C> <C>
COMMON STOCK,
PAR VALUE $.001 (1) $21.62 $232,457,585 $64,623.21
=================================================================================================================================
<FN>
(1) 10,000,000 shares of AnswerThink Consulting Group, Inc. Common Stock, par
value $.001 per share ("Shares") are being registered pursuant to the
AnswerThink Consulting Group, Inc. 1998 Stock Option and Incentive Plan and
750,000 Shares are being registered pursuant to the AnswerThink Consulting
Group, Inc. Employee Stock Purchase Plan.
(2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of calculating
the amount of the registration fee. The proposed maximum offering price per
share was determined by calculating the weighted average exercise price of (i)
2,673,050 Shares being offered under outstanding options at a weighted average
exercise price of $10.71, (ii) 7,326,950 Shares being offered at an exercise
price of $25.59 based on the average of the high and low prices per share of the
Shares, on December 24, 1998 as reported on The Nasdaq Stock Market and (iii)
750,000 Shares being offered at a price of $21.75, which is 85% of the average
of the high and low prices per share of the Shares, on December 24, 1998 as
reported on The Nasdaq Stock Market, which reflects that Shares may be purchased
under the AnswerThink Consulting Group, Inc. Employee Stock Purchase Plan at 85%
of fair market value.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act"). In accordance
with the instructions to Part I of Form S-8, such documents will not be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
AnswerThink Consulting Group, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents filed by it with the Commission:
(a) The Registrant's final prospectus dated May 28, 1998
as filed with the Commission pursuant to Rule 424(b)
of the Securities Act, which contains audited
financial statements for the fiscal year ended
January 2, 1998;
(b) The description of the Registrant's Common Stock, par
value $.001 per share (the "Common Stock"), contained
in the Registrant's Registration Statement on Form
8-A filed with the Commission on March 17, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for
the three months ended July 3, 1998 as filed with the
Commission on August 17, 1998;
(d) The Registrant's Quarterly Report on Form 10-Q for
the three months ended October 2, 1998 as filed with
the Commission on November 16, 1998; and
(e) The Registrant's Current Report on Form 8-K filed
with the Commission on October 14, 1998, as amended
on December 14, 1998 (File No. 0-24343).
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, or 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 remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the date of filing of
such documents or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (The Common Stock is registered under Section
12 of the Exchange Act.)
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<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
To the fullest extent permitted by the Florida Business
Corporation Act (the "Florida Act"), the Company's Articles of Incorporation
provide that directors of the Company shall not be personally liable to the
Company or its shareholders for monetary damages for breach of fiduciary duty as
a director. Generally, the Florida Act permits indemnification of a director or
officer upon a determination that he or she acted in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
The Articles of Incorporation and Bylaws of the Company
provide for the indemnification of the Company's directors and officers and any
person who is or was serving at the request of the Company as a director,
officer, employee, partner (limited or general) or agent of another corporation
or of a partnership, joint venture, limited liability company, trust or other
enterprise, including service with respect to an employee benefit plan to the
fullest extent authorized by, and subject to the conditions set forth in the
Florida Act against all expenses, liabilities and losses (including attorneys'
fees, judgments, fines, ERISA taxes, excise taxes, or penalties, charges,
expenses and amounts paid or to be paid in settlement), except that the Company
will indemnify a director or officer in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Company's Board of Directors. The indemnification provided
under the Bylaws includes the right to be paid by the Company the expenses
(including attorneys' fees) in advance of any proceeding for which
indemnification may be had in advance of its final disposition, provided that
the payment of such expenses (including attorneys' fees) incurred by a director
or officer in advance of the final disposition of a proceeding may be made only
upon delivery to the Company of an undertaking by or on behalf of such director
or officer to repay all amounts so paid in advance if it is ultimately
determined that such director or officer is not entitled to be indemnified.
Pursuant to the Bylaws, if a claim for indemnification is not paid by the
Company within 60 days after a written claim has been received by the Company,
the claimant may at any time thereafter bring an action against the Company to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant will be entitled to be paid also the expense of prosecuting such
action.
Under the Articles of Incorporation, the Company has the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against such person or incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Company would have the power to indemnify such person
against such liability under the provisions of the Florida Act. The Company
maintains director and officer liability insurance on behalf of its directors
and officers.
* * *
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1 Second Amended and Restated Certificate of
Incorporation of the Registrant (filed as
Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-48123),
and incorporated herein by reference).
4.2 Amended and Restated Bylaws of the
Registrant (filed as Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q
(File No. 000-24343), as filed with the
Commission on August 17, 1998 and
incorporated herein by reference).
4.3 Form of Common Stock Certificate of the
Registrant (filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form
8-A (File No. 000-24343), as filed with the
Commission on May 21, 1998 and incorporated
herein by reference).
4.4 AnswerThink Consulting Group, Inc. 1998
Stock Option and Incentive Plan (filed as
Exhibit 10.11 to the Registrant's
Registration Statement on Form S-1 (File No.
333-48123), and incorporated herein by
reference).
4.5 AnswerThink Consulting Group, Inc. Employee
Stock Purchase Plan.
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included
in their opinion filed as Exhibit 5.1
hereto).
24.1 Power of Attorney (included on signature
pages).
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<PAGE>
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;
(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 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) of
the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the 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.
(c) The undertaking concerning indemnification is as set
forth under the response to Item 6.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 City of Miami, State of Florida on the 30th day of December,
1998.
ANSWERTHINK CONSULTING GROUP, INC.
BY: /s/ TED A. FERNANDEZ
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Ted A. Fernandez
President, Chief Executive Officer and Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ted A. Fernandez and Luis E. San Miguel,
jointly and severally, each in his own capacity, as true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement (including post-effective amendments), and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact, or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ TED A. FERNANDEZ President, Chief Executive Officer and December 30, 1998
- ---------------------------------------- Chairman (Principal executive officer)
Ted A. Fernandez
/s/ LUIS E. SAN MIGUEL Executive Vice President, Finance and December 30, 1998
- ---------------------------------------- Chief Financial Officer (Principal
Luis E. San Miguel financial and accounting officer)
/s/ ALLAN R. FRANK Executive Vice President, Chief Technology December 30, 1998
- ---------------------------------------- Officer and Director
Allan R. Frank
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ ULYSSES S. KNOTTS, III Executive Vice President, Sales and December 30, 1998
- ---------------------------------------- Marketing and Director
Ulysses S. Knotts, III
/s/ FERNANDO MONTERO Director December 30, 1998
- ----------------------------------------
Fernando Montero
/s/ EDMUND R. MILLER Director December 30, 1998
- ----------------------------------------
Edmund R. Miller
/s/ BRUCE RAUNER Director December 30, 1998
- ----------------------------------------
Bruce Rauner
/s/ WILLIAM C. KESSINGER Director December 30, 1998
- ----------------------------------------
William C. Kessinger
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Second Amended and Restated Certificate of
Incorporation of the Registrant (filed as
Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-48123),
and incorporated herein by reference).
4.2 Amended and Restated Bylaws of the
Registrant (filed as Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q
(File No. 000-24343), as filed with the
Commission on August 17, 1998 and
incorporated herein by reference).
4.3 Form of Common Stock Certificate of the
Registrant (filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form
8-A (File No. 000-24343), as filed with the
Commission on May 21, 1998 and incorporated
herein by reference).
4.4 AnswerThink Consulting Group, Inc. 1998
Stock Option and Incentive Plan (filed as
Exhibit 10.11 to the Registrant's
Registration Statement on Form S-1 (File No.
333-48123), and incorporated herein by
reference).
4.5 AnswerThink Consulting Group, Inc. Employee
Stock Purchase Plan.
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included
in their opinion filed as Exhibit 5.1
hereto).
24.1 Power of Attorney (included on signature
pages).
EXHIBIT 4.5
ANSWERTHINK CONSULTING GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
TABLE OF CONTENTS
PAGE
----
1. SHARES SUBJECT TO THE PLAN................................................1
2. ADMINISTRATION............................................................1
3. INTERPRETATION............................................................1
4. ELIGIBLE EMPLOYEES........................................................1
5. PARTICIPATION IN THE PLAN.................................................2
6. OFFERINGS.................................................................2
7. OFFERING PERIODS..........................................................2
8. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE...........................2
9. TIMING OF PURCHASE; PURCHASE LIMITATION...................................3
10. ISSUANCE OF STOCK CERTIFICATES...........................................3
11. WITHHOLDING OF TAXES.....................................................4
12. ACCOUNT STATEMENTS.......................................................4
13. PARTICIPATION ADJUSTMENT.................................................4
14. CHANGES IN ELECTIONS TO PURCHASE.........................................4
15. VOLUNTARY TERMINATION OF EMPLOYMENT OR DISCHARGE.........................5
16. RETIREMENT OR SEVERANCE..................................................5
17. LAY-OFF, AUTHORIZED LEAVE OR ABSENCE OR DISABILITY.......................5
18. DEATH....................................................................6
19. FAILURE TO MAKE PERIODIC CASH PAYMENTS...................................7
20. TERMINATION OF PARTICIPATION.............................................7
21. ASSIGNMENT...............................................................7
22. APPLICATION OF FUNDS.....................................................7
23. NO RIGHT TO CONTINUED EMPLOYMENT.........................................7
24. AMENDMENT OF PLAN........................................................7
25. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.........................8
26. EFFECT OF CHANGES IN CAPITALIZATION......................................8
(a) Changes in Stock.....................................................8
(b) Reorganization in Which the Company Is the Surviving Corporation.....8
(c) Reorganization in Which the Company Is Not the Surviving Corporation
or Sale of Assets or Stock........................................10
(d) Adjustments..........................................................10
(e) No Limitations on Company............................................10
27. GOVERNMENTAL REGULATION..................................................10
28. STOCKHOLDER RIGHTS.......................................................10
29. RULE 16b-3...............................................................11
30. PAYMENT OF PLAN EXPENSES.................................................11
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<PAGE>
ANSWERTHINK CONSULTING GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
The Board of Directors of AnswerThink Consulting Group, Inc. (the
"Company") has adopted this Employee Stock Purchase Plan (the "Plan") to enable
eligible employees of the Company and its participating Affiliates (as defined
below), through payroll deductions, to purchase shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock"). The Plan is for the
benefit of the employees of AnswerThink Consulting Group, Inc. and any
participating Affiliates. The Plan is intended to benefit the Company by
increasing the employees' interest in the Company's growth and success and
encouraging employees to remain in the employ of the Company or its
participating Affiliates. The provisions of the Plan are set forth below:
1. SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 26 below, the aggregate
number of shares of Common Stock that may be made available for purchase by
participating employees under the Plan is 750,000. The shares issuable under the
Plan may, in the discretion of the Board of Directors of the Company (the
"Board"), be either authorized but unissued shares or treasury shares.
2. ADMINISTRATION.
The Plan shall be administered under the direction of the Compensation
Committee of the Board (the "Committee"). No member of the Board or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan.
3. INTERPRETATION.
It is intended that the Plan will meet the requirements for an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code of
1986 (the "Code"), and it is to be so applied and interpreted. Subject to the
express provisions of the Plan, the Committee shall have authority to interpret
the Plan, to prescribe, amend and rescind rules relating to it, and to make all
other determinations necessary or advisable in administering the Plan, all of
which determinations will be final and binding upon all persons.
4. ELIGIBLE EMPLOYEES.
Any employee of the Company or any of its participating Affiliates may
participate in the Plan, except the following, who are ineligible to
participate: (a) an employee who has been employed by the Company or any of its
participating Affiliates for less than three months as of the beginning of an
Offering Period (as defined in Section 7 below); (b) an employee whose customary
employment is for less than five months in any calendar year; (c) an employee
whose customary employment is 20 hours or less per week; and (d) an employee
who, after exercising his or her rights to purchase shares under the Plan, would
own shares of Common Stock
<PAGE>
(including shares that may be acquired under any outstanding options)
representing five percent or more of the total combined voting power of all
classes of stock of the Company. The term "participating Affiliate" means any
company or other trade or business that is a subsidiary of the Company
(determined in accordance with the principles of Sections 424(e) and (f) of the
Code and the regulations thereunder). The Board may at any time in its sole
discretion, if it deems it advisable to do so, terminate the participation of
the employees of a particular participating Affiliate.
5. PARTICIPATION IN THE PLAN.
An eligible employee may become a participating employee in the Plan by
completing an election to participate in the Plan on a form provided by the
Company and submitting that form to the Payroll Department of the Company. The
form will authorize payroll deductions (as provided in Section 6 below) and
authorize the purchase of shares of Common Stock for the employee's account in
accordance with the terms of the Plan. Enrollment will become effective upon the
first day of the first Offering Period.
6. OFFERINGS.
At the time an eligible employee submits his or her election to
participate in the Plan (as provided in Section 5 above), the employee shall
elect to have deductions made from his or her pay subject to a maximum of
fifteen percent (15%) of total compensation, on each pay day following his or
her enrollment in the Plan, and for as long as he or she shall participate in
the Plan. The deductions will be credited to the participating employee's
account under the Plan. An employee may not during any Offering Period change
his or her percentage of payroll deduction for that Offering Period, nor may an
employee withdraw any contributed funds, other than in accordance with Sections
14 through 20 below.
7. OFFERING PERIODS.
The Offering Periods shall be determined by the Committee. The first
Offering Period under the Plan shall commence on the date determined by the
Committee.
8. RIGHTS TO PURCHASE COMMON STOCK; PURCHASE PRICE.
Rights to purchase shares of Common Stock will be deemed granted to
participating employees as of the first trading day of each Offering Period. The
purchase price of each share of Common Stock (the "Purchase Price") shall be
determined by the Committee; PROVIDED, HOWEVER, the Purchase Price shall not be
less than the lesser of 85 percent of the fair market value of the Common Stock
(i) on the first trading day of the Offering Period or (ii) on the last trading
day of such Offering Period; PROVIDED, FURTHER, that in no event shall the
Purchase Price be less than the par value of the Common Stock. For purposes of
the Plan, "fair market value" means the value of each share of Common Stock
subject to the Plan on a given date determined as follows: if on such date the
shares of Common Stock are listed on an established national or regional stock
exchange, are admitted to quotation on The Nasdaq Stock Market, or are publicly
traded on an established securities market, the fair market value of the shares
of Common Stock
- 2 -
<PAGE>
shall be the closing price of the shares of Common Stock on such exchange or in
such market (the highest such closing price if there is more than one such
exchange or market) on such date or, if such date is not a trading day, on the
trading day immediately preceding such date (or if there is no such reported
closing price, the fair market value shall be the mean between the highest bid
and lowest asked prices or between the high and low sale prices on such trading
day) or, if no sale of the shares of Common Stock is reported for such trading
day, on the next preceding day on which any sale shall have been reported. If
the shares of Common Stock are not listed on such an exchange, quoted on such
System or traded on such a market, fair market value shall be determined by the
Board in good faith.
9. TIMING OF PURCHASE; PURCHASE LIMITATION.
Unless a participating employee has given prior written notice
terminating such employee's participation in the Plan, or the employee's
participation in the Plan has otherwise been terminated as provided in Sections
15 through 20 below, such employee will be deemed to have exercised
automatically his or her right to purchase Common Stock on the last trading day
of the Offering Period (except as provided in Section 14 below) for the number
of shares of Common Stock which the accumulated funds in the employee's account
at that time will purchase at the Purchase Price, subject to the participation
adjustment provided for in Section 13 below and subject to adjustment under
Section 26 below. Notwithstanding any other provision of the Plan, no employee
may purchase in any one calendar year under the Plan and all other "employee
stock purchase plans" of the Company and its participating Affiliates shares of
Common Stock having an aggregate fair market value in excess of $25,000,
determined as of the first trading date of the Offering Period as to shares
purchased during such period. Effective upon the last trading day of the
Offering Period, a participating employee will become a stockholder with respect
to the shares purchased during such period, and will thereupon have all
dividend, voting and other ownership rights incident thereto. Notwithstanding
the foregoing, no shares shall be sold pursuant to the Plan unless the Plan is
approved by the Company's stockholders in accordance with Section 25 below.
10. ISSUANCE OF STOCK CERTIFICATES.
On the last trading day of the Offering Period, a participating
employee will be credited with the number of shares of Common Stock purchased
for his or her account under the Plan during such Offering Period. Shares
purchased under the Plan will be held in the custody of an agent (the "Agent")
appointed by the Board of Directors. The Agent may hold the shares purchased
under the Plan in stock certificates in nominee names and may commingle shares
held in its custody in a single account or stock certificate without
identification as to individual participating employees. A participating
employee may, at any time following his or her purchase of shares under the
Plan, by written notice instruct the Agent to have all or part of such shares
reissued in the participating employee's own name and have the stock certificate
delivered to the employee.
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<PAGE>
11. WITHHOLDING OF TAXES.
To the extent that a participating employee realizes ordinary income in
connection with a sale or other transfer of any shares of Common Stock purchased
under the Plan, the Company may withhold amounts needed to cover such taxes from
any payments otherwise due and owing to the participating employee or from
shares that would otherwise be issued to the participating employee hereunder.
Any participating employee who sells or otherwise transfers shares purchased
under the Plan within two years after the beginning of the Offering Period in
which the shares were purchased must within 30 days of such transfer notify the
Payroll Department of the Company in writing of such transfer.
12. ACCOUNT STATEMENTS.
The Company will cause the Agent to deliver to each participating
employee a statement for each Offering Period during which the employee
purchases Common Stock under the Plan, reflecting the amount of payroll
deductions during the Offering Period, the number of shares purchased for the
employee's account, the price per share of the shares purchased for the
employee's account and the number of shares held for the employee's account at
the end of the Offering Period.
13. PARTICIPATION ADJUSTMENT.
If in any Offering Period the number of unsold shares that may be made
available for purchase under the Plan pursuant to Section 1 above is
insufficient to permit exercise of all rights deemed exercised by all
participating employees pursuant to Section 9 above, a participation adjustment
will be made, and the number of shares purchasable by all participating
employees will be reduced proportionately. Any funds then remaining in a
participating employee's account after such exercise will be refunded to the
employee.
14. CHANGES IN ELECTIONS TO PURCHASE.
(a) A participating employee may, at any time prior to the last trading
day of the Offering Period, by written notice to the Company, direct the Company
to cease payroll deductions (or, if the payment for shares is being made through
periodic cash payments, notify the Company that such payments will be
terminated), in accordance with the following alternatives:
(i) The employee's option to purchase shall be reduced to the
number of shares which may be purchased, as of the last day of the Offering
Period, with the amount then credited to the employee's account; or
(ii) Withdraw the amount in such employee's account and
terminate such employee's option to purchase.
(b) Any participating employee may increase or decrease his or her
payroll deduction or periodic cash payments, to take effect on the first day of
the next Offering Period, by delivering to the Company a new form regarding
election to participate in the Plan under Section 5 above.
- 4 -
<PAGE>
15. VOLUNTARY TERMINATION OF EMPLOYMENT OR DISCHARGE.
In the event a participating employee voluntarily leaves the employ of
the Company or a participating Affiliate, otherwise than by retirement under a
plan of the Company or a participating Affiliate, or is discharged for cause
prior to the last day of the Offering Period, the amount in the employee's
account will be distributed and the employee's option to purchase will
terminate.
16. RETIREMENT OR SEVERANCE.
In the event a participating employee who has an option to purchase
shares leaves the employ of the Company or a participating Affiliate because of
retirement under a plan of the Company or a participating Affiliate, or because
of termination of the employee's employment by the Company or a participating
Affiliate for any reason except discharge for cause, the participating employee
may elect, within 10 days after the date of such retirement or termination, one
of the following alternatives:
(a) The employee's option to purchase shall be reduced to the number of
shares which may be purchased, as of the last day of the Offering Period, with
the amount then credited to the employee's account; or
(b) Withdraw the amount in such employee's account and terminate such
employee's option to purchase.
In the event the participating employee does not make an election
within the aforesaid 10-day period, he or she will be deemed to have elected
subsection 16(b) above.
17. LAY-OFF, AUTHORIZED LEAVE OR ABSENCE OR DISABILITY.
Payroll deductions for shares for which a participating employee has an
option to purchase may be suspended during any period of absence of the employee
from work due to lay-off, authorized leave of absence or disability or, if the
employee so elects, periodic payments for such shares may continue to be made in
cash.
If such employee returns to active service prior to the last day of the
Offering Period, the employee's payroll deductions will be resumed and if said
employee did not make periodic cash payments during the employee's period of
absence, the employee shall, by written notice to the Company's Payroll
Department within 10 days after the employee's return to active service, but not
later than the last day of the Offering Period, elect:
(a) To make up any deficiency in the employee's account resulting from
a suspension of payroll deductions by an immediate cash payment;
(b) Not to make up such deficiency, in which event the number of shares
to be purchased by the employee shall be reduced to the number of whole shares
which may be
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<PAGE>
purchased with the amount, if any, then credited to the employee's account plus
the aggregate amount, if any, of all payroll deductions to be made thereafter;
or
(c) Withdraw the amount in the employee's account and terminate the
employee's option to purchase.
A participating employee on lay-off, authorized leave of absence or
disability on the last day of the Offering Period shall deliver written notice
to his or her employer on or before the last day of the Offering Period,
electing one of the alternatives provided in the foregoing clauses (a), (b) and
(c) of this Section 17. If any employee fails to deliver such written notice
within 10 days after the employee's return to active service or by the last day
of the Offering Period, whichever is earlier, the employee shall be deemed to
have elected subsection 17(c) above.
If the period of a participating employee's lay-off, authorized leave
of absence or disability shall terminate on or before the last day of the
Offering Period, and the employee shall not resume active employment with the
Company or a participating Affiliate, the employee shall receive a distribution
in accordance with the provisions of Section 16 of this Plan.
18. DEATH.
In the event of the death of a participating employee while the
employee's option to purchase shares is in effect, the legal representatives of
such employee may, within three months after the employee's death (but no later
than the last day of the Offering Period) by written notice to the Company or
participating Affiliate, elect one of the following alternatives:
(a) The employee's option to purchase shall be reduced to the number of
shares which may be purchased, as of the last day of the Offering Period, with
the amount then credited to the employee's account; or
(b) Withdraw the amount in such employee's account and terminate such
employee's option to purchase.
In the event the legal representatives of such employee fail to deliver
such written notice to the Company or participating Affiliate within the
prescribed period, the election to purchase shares shall terminate and the
amount, then credited to the employee's account shall be paid to such legal
representatives.
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<PAGE>
19. FAILURE TO MAKE PERIODIC CASH PAYMENTS.
Under any of the circumstances contemplated by this Plan, where the
purchase of shares is to be made through periodic cash payments in lieu of
payroll deductions, the failure to make any such payments shall reduce, to the
extent of the deficiency in such payments, the number of shares purchasable
under this Plan.
20. TERMINATION OF PARTICIPATION.
A participating employee will be refunded all moneys in his or her
account, and his or her participation in the Plan will be terminated if either
(a) the Board elects to terminate the Plan as provided in Section 25 below, or
(b) the employee ceases to be eligible to participate in the Plan under Section
4 above. As soon as practicable following termination of an employee's
participation in the Plan, the Company will deliver to the employee a check
representing the amount in the employee's account and a stock certificate
representing the number of whole shares held in the employee's account. Once
terminated, participation may not be reinstated for the then current Offering
Period, but, if otherwise eligible, the employee may elect to participate in any
subsequent Offering Period.
21. ASSIGNMENT.
No participating employee may assign his or her rights to purchase
shares of Common Stock under the Plan, whether voluntarily, by operation of law
or otherwise. Any payment of cash or issuance of shares of Common Stock under
the Plan may be made only to the participating employee (or, in the event of the
employee's death, to the employee's estate). Once a stock certificate has been
issued to the employee or for his or her account, such certificate may be
assigned the same as any other stock certificate.
22. APPLICATION OF FUNDS.
All funds received or held by the Company under the Plan may be used
for any corporate purpose until applied to the purchase of Common Stock and/or
refunded to participating employees. Participating employees' accounts will not
be segregated.
23. NO RIGHT TO CONTINUED EMPLOYMENT.
Neither the Plan nor any right to purchase Common Stock under the Plan
confers upon any employee any right to continued employment with the Company or
any of its participating Affiliates, nor will an employee's participation in the
Plan restrict or interfere in any way with the right of the Company or any of
its participating Affiliates to terminate the employee's employment at any time.
24. AMENDMENT OF PLAN.
The Board may, at any time, amend the Plan in any respect (including an
increase in the percentage specified in Section 8 above used in calculating the
Purchase Price); PROVIDED,
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<PAGE>
HOWEVER, that without approval of the stockholders of the Company no amendment
shall be made (a) increasing the number of shares specified in Section 1 above
that may be made available for purchase under the Plan (except as provided in
Section 26 below), (b) changing the eligibility requirements for participating
in the Plan, or (c) impairing the vested rights of participating employees.
25. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.
The Plan shall be effective as of the date of adoption by the Board,
which date is set forth below, subject to approval of the Plan by a majority of
the votes present and entitled to vote at a duly held meeting of the
shareholders of the Company at which a quorum representing a majority of all
outstanding voting stock is present, either in person or by proxy; PROVIDED,
HOWEVER, that upon approval of the Plan by the shareholders of the Company as
set forth above, all rights to purchase shares granted under the Plan on or
after the effective date shall be fully effective as if the shareholders of the
Company had approved the Plan on the effective date. If the shareholders fail to
approve the Plan on or before one year after the effective date, the Plan shall
terminate, any rights to purchase shares granted hereunder shall be null and
void and of no effect, and all contributed funds shall be refunded to
participating employees. The Board may terminate the Plan at any time and for
any reason or for no reason, provided that such termination shall not impair any
rights of participating employees that have vested at the time of termination.
In any event, the Plan shall, without further action of the Board, terminate ten
(10) years after the date of adoption of the Plan by the Board or, if earlier,
at such time as all shares of Common Stock that may be made available for
purchase under the Plan pursuant to Section 1 above have been issued.
26. EFFECT OF CHANGES IN CAPITALIZATION.
(A) CHANGES IN STOCK.
If the number of outstanding shares of Common Stock is increased or
decreased or the shares of Common Stock are changed into or exchanged for a
different number or kind of shares or other securities of the Company by reason
of any recapitalization, reclassification, stock split, reverse split,
combination of shares, exchange of shares, stock dividend, or other distribution
payable in capital stock, or other increase or decrease in such shares effected
without receipt of consideration by the Company occurring after the effective
date of the Plan, the number and kinds of shares that may be purchased under the
Plan shall be adjusted proportionately and accordingly by the Company. In
addition, the number and kind of shares for which rights are outstanding shall
be similarly adjusted so that the proportionate interest of a participating
employee immediately following such event shall, to the extent practicable, be
the same as immediately prior to such event. Any such adjustment in outstanding
rights shall not change the aggregate Purchase Price payable by a participating
employee with respect to shares subject to such rights, but shall include a
corresponding proportionate adjustment in the Purchase Price per share.
(B) REORGANIZATION IN WHICH THE COMPANY IS THE SURVIVING CORPORATION.
- 8 -
<PAGE>
Subject to Subsection (c) of this Section 26, if the Company shall be
the surviving corporation in any reorganization, merger or consolidation of the
Company with one or more other corporations, all outstanding rights under the
Plan shall pertain to and apply to the securities to which a holder of the
number of shares of Common Stock subject to such rights would have been entitled
immediately following such reorganization, merger or consolidation, with a
corresponding proportionate adjustment of the Purchase Price per share so that
the aggregate Purchase Price thereafter shall be the same as the aggregate
Purchase Price of the shares subject to such rights immediately prior to such
reorganization, merger or consolidation.
- 9 -
<PAGE>
(C) REORGANIZATION IN WHICH THE COMPANY IS NOT THE SURVIVING
CORPORATION OR SALE OF ASSETS OR STOCK.
Upon any dissolution or liquidation of the Company, or upon a merger,
consolidation or reorganization of the Company with one or more other
corporations in which the Company is not the surviving corporation, or upon a
sale of all or substantially all of the assets of the Company to another
corporation, or upon any transaction (including, without limitation, a merger or
reorganization in which the Company is the surviving corporation) approved by
the Board that results in any person or entity owning more than 80 percent of
the combined voting power of all classes of stock of the Company, the Plan and
all rights outstanding hereunder shall terminate, except to the extent provision
is made in writing in connection with such transaction for the continuation of
the Plan and/or the assumption of the rights theretofore granted, or for the
substitution for such rights of new rights covering the stock of a successor
corporation, or a parent or subsidiary thereof, with appropriate adjustments as
to the number and kinds of shares and exercise prices, in which event the Plan
and rights theretofore granted shall continue in the manner and under the terms
so provided. In the event of any such termination of the Plan, the Offering
Period shall be deemed to have ended on the last trading day prior to such
termination, and in accordance with Section 10 above the rights of each
participating employee then outstanding shall be deemed to be automatically
exercised on such last trading day. The Board shall send written notice of an
event that will result in such a termination to all participating employees not
later than the time at which the Company gives notice thereof to its
stockholders.
(D) ADJUSTMENTS.
Adjustments under this Section 26 related to stock or securities of the
Company shall be made by the Committee, whose determination in that respect
shall be final, binding, and conclusive.
(E) NO LIMITATIONS ON COMPANY.
The grant of a right pursuant to the Plan shall not affect or limit in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
27. GOVERNMENTAL REGULATION.
The Company's obligation to issue, sell and deliver shares of Common
Stock pursuant to the Plan is subject to such approval of any governmental
authority and any national securities exchange or other market quotation system
as may be required in connection with the authorization, issuance or sale of
such shares.
28. STOCKHOLDER RIGHTS.
Any dividends paid on shares held by the Company for a participating
employee's account will be transmitted to the employee. The Company will deliver
to each participating employee
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<PAGE>
who purchases shares of Common Stock under the Plan, as promptly as practicable
by mail or otherwise, all notices of meetings, proxy statements, proxies and
other materials distributed by the Company to its stockholders. Any shares of
Common Stock held by the Agent for an employee's account will be voted in
accordance with the employee's duly delivered and signed proxy instructions.
There will be no charge to participating employees in connection with such
notices, proxies and other materials.
29. RULE 16B-3.
Transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or any successor provision under the Securities
Exchange Act of 1934, as amended. If any provision of the Plan or action by the
Board fails to so comply, it shall be deemed null and void to the extent
permitted by law and deemed advisable by the Board. Moreover, in the event the
Plan does not include a provision required by Rule 16b-3 to be stated herein,
such provision (other than one relating to eligibility requirements, or the
price and amount of awards) shall be deemed automatically to be incorporated by
reference into the Plan.
30. PAYMENT OF PLAN EXPENSES.
The Company will bear all costs of administering and carrying out the
Plan.
* * *
This Plan was duly adopted and approved by the Board of Directors of
the Company by unanimous written consent on the 23rd of April, 1998.
/s/ JOHN F. BRENNAN
---------------------------
Secretary of the Company
This Plan was duly approved by the stockholders of the Company by
written consent on the 23rd day of April, 1998.
/s/ JOHN F. BRENNAN
---------------------------
Secretary of the Company
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EXHIBIT 5.1
HOGAN & HARTSON L.L.P.
COLUMBIA SQUARE
555 THIRTEENTH STREET, NW
WASHINGTON, DC 20004-1109
TEL (202) 637-5600
FAX (202) 637-5910
December 30, 1998
Board of Directors
AnswerThink Consulting Group, Inc.
1001 Brickell Bay Drive
30th Floor
Miami, FL 33131
Dear Gentlemen:
We are acting as counsel to AnswerThink Consulting Group,
Inc., a Florida corporation (the "COMPANY"), in connection with its registration
statement on Form S-8 (the "REGISTRATION STATEMENT") to be filed with the
Securities and Exchange Commission, covering 10,750,000 shares of the Company's
common stock, $.001 par value per share (the "SHARES"), of which 750,000 Shares
may be purchased pursuant to the AnswerThink Consulting Group, Inc. Employee
Stock Purchase Plan (the "PURCHASE PLAN") and of which 10,000,000 Shares are
issuable upon the exercise of options granted under the AnswerThink Consulting
Group, Inc. 1998 Stock Option and Incentive Plan (the "OPTION PLAN"). This
opinion letter is furnished to you at your request to enable you to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. /section/
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Second Amended and Restated Certificate of
Incorporation of the Company, as amended, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
3. The Amended and Restated By-laws of the Company, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
4. A copy of the Purchase Plan, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
5. A copy of the Option Plan, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
<PAGE>
Board of Directors
AnswerThink Consulting Group, Inc.
Page 2
December 30, 1998
6. Resolutions of the Board of Directors of the Company
adopted on May 5, 1998, May 26 , 1998 and October 16,
1998, as certified by the Secretary of the Company on
the date hereof as then being complete, accurate and
in effect.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of all natural persons,
the accuracy and completeness of all documents submitted to us, the authenticity
of all original documents and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter is based as to matters of law solely on
the Florida Business Corporation Act. We express no opinion herein as to any
other laws, statutes, regulations or ordinances.
Based upon, subject to and limited by the foregoing, we are of
the opinion that the Shares, when issued and delivered in the manner and on the
terms contemplated in the Registration Statement and as contemplated by the
Purchase Plan and the Option Plan, as the case may be (with the Company's having
received the consideration therefor, the form of which is in accordance with
applicable law) will be validly issued, fully paid and nonassessable under the
Florida Business Corporation Act.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are an "expert" within the meaning of the Securities Act
of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
AnswerThink Consulting Group, Inc. ("AnswerThink") on Form S-8 of our report
dated March 12, 1998, except for Note 11, as to which the date is May 12, 1998,
on our audit of the consolidated financial statements of AnswerThink, and of our
reports dated February 27, 1998, on our audits of the financial statements of
Delphi Partners, Inc., The Hackett Group, Inc., Relational Technologies, Inc.
and Legacy Technology, Inc., all of which reports are included in AnswerThink's
Form S-1 (File No. 333-48123) as amended on May 28, 1998.
We also consent to the incorporation by reference in this registration statement
of AnswerThink Consulting Group, Inc. on Form S-8 of our report dated November
24, 1998, on our audit of the financial statements of Infinity Consulting Group,
Inc. included in Form 8-K, as amended on December 14, 1998 (File No. 0-24343).
PricewaterhouseCoopers LLP
Miami, Florida
December 28, 1998
