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As filed with the Securities and Exchange Commission on February 18, 2000
Registration No. 333 - _______________
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRAUN CONSULTING, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3702425
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
30 West Monroe, Suite 300 60603
Chicago, Illinois (Zip Code)
(Address of principal executive offices)
1995 Director Stock Option Plan
1998 Employee Long Term Stock Investment Plan
1998 Executive Long Term Stock Investment Plan
1999 Independent Director Stock Option Plan
Non Qualified Stock Option Plan of Emerging Technologies Consultants, Inc.
(Full title of the plan)
Gregory A. Ostendorf
General Counsel and Secretary
Braun Consulting, Inc.
30 West Monroe, Suite 300
Chicago, Illinois 60603
(Name and address of agent for service)
(312) 984-7000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Proposed
Amount Maximum Proposed Maximum
Title of Securities To be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per share
("Common Stock") 4,105,363 $49.00 $96,567,322.80 $25,493.78
=============================================================================================================
</TABLE>
(1) Represents the maximum number of shares which could be purchased upon the
exercise of all stock options now outstanding or which may hereafter be
granted under the above plans, and includes an indeterminate number of
shares that may be issuable by reason of stock splits, stock dividends or
similar transactions.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) and (c), based on the option exercise prices to acquire
2,515,538 shares of common stock which have been granted under the plans
and the average of the high and low sales price of a share of the Common
Stock on February 11, 2000 as reported on the Nasdaq National Market with
respect to 1,589,825 shares of Common Stock as to which options are
available for grant as of the date of filing this registration statement.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Braun Consulting, Inc. (the "Company" or
"Braun Consulting") with the Securities and Exchange Commission under the
Securities Exchange Act of 1934 (File No. 001-15213) are hereby incorporated by
reference in this registration statement:
(a) the Company's Prospectus contained in its registration statement on Form
S-1 (Reg. No. 333-79251);
(b) the Company's Current Report on Form 8-K filed December 16, 1999;
(c) the Company's Current Report on Form 8-K filed February 14, 2000;
(d) the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999; and
(e) the description of the Common Stock set forth under the caption "Item 1.
Description of Registrant's Securities to be Registered" in the Company's
Registration Statement on Form 8-A filed August 2, 1999.
All documents filed by Braun Consulting pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, after the date of this
registration statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of the 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.
Delaware General Corporation Law
Section 145(a) of the Delaware General Corporation Law ("DGCL") provides that
any person made a party to any action by reason of the fact that he is or was a
director, officer, employee or agent of Braun Consulting may and, in certain
cases, must be indemnified by Braun Consulting against, in the case of a non-
derivative action, judgments, fines, amounts paid in settlement and reasonable
expenses (including attorneys' fees) incurred by him as a result of such action,
and in the case of a derivative action, against expenses (including attorneys'
fees), if in either type of action he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of Braun
Consulting. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or agent
is liable to Braun Consulting, unless upon court order it is determined that,
despite such adjudication of liability, but in view of all the circumstances of
the case, he is fairly and reasonably entitled to indemnity for expenses, and,
in a non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
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Certificate of Incorporation
The certificate of incorporation of Braun Consulting provides that a director
of Braun Consulting shall not be personally liable to Braun Consulting or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (1) for any breach of the director's duty of loyalty to
Braun Consulting or its stockholders, (2) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (3)
under Section 174 of the DGCL or (4) for any transaction from which the director
derived an improper personal benefit. Additionally, the certificate of
incorporation provides that Braun Consulting will indemnify its officers and
directors to the fullest extent permitted by the DGCL. However, if the DGCL is
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of Braun Consulting, in addition to
the limitation on personal liability described above, shall be limited to the
fullest extent permitted by the amended DGCL. Further, any repeal or
modification of such provision of the certificate of incorporation by the
stockholders of Braun Consulting shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of Braun
Consulting existing at the time of such repeal or modification.
Bylaws
Braun Consulting's Bylaws generally provide for indemnification of officers,
directors, employees and agents of Braun Consulting and persons serving at the
request of Braun Consulting in such capacities for other business organizations
against certain losses, costs, liabilities, and expenses incurred by reason of
their positions with Braun Consulting or such other business organizations. In
the case of non-derivative actions, Braun Consulting will indemnify such persons
against expenses, including attorney's fees, judgments, fines and amounts paid
in settlement incurred by such person as long as they acted in good faith and in
a manner they believed to be in or not opposed to the best interests of Braun
Consulting. In the case of derivative actions, Braun Consulting will indemnify
such persons against expenses, including attorneys' fees, incurred by them as
long as they acted in good faith and in a manner they believed to be in or not
opposed to the best interests of Braun Consulting. Braun Consulting also has
policies insuring its officers and directors and certain officers and directors
of its wholly owned subsidiaries against certain liabilities for actions taken
in such capacities, including liabilities under the Securities Act of 1933, as
amended.
Insurance
Braun Consulting maintains a policy of liability insurance to insure its
officers and directors and certain directors and officers of its wholly owned
subsidiaries against losses resulting from certain acts committed by them in
their capacities as officers and directors of Braun Consulting or its
subsidiaries.
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<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
------ -----------
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the registration statement on Form S-1 (Reg. No.
333-79251) (the "Form S-1") filed by Braun Consulting).
4.2 Form of Bylaws (incorporated by reference to Exhibit 3.2 to the
Form S-1).
*5.1 Opinion of Locke Liddell & Sapp LLP.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Locke Liddell & Sapp LLP (contained in Exhibit 5.1).
*24.1 Power of Attorney (included on the signature page of this
registration statement).
99.1 1995 Director Stock Option Plan (incorporated by reference to
Exhibit 10.6 to the Form S-1).
99.2 1998 Employee Long Term Stock Investment Plan (incorporated by
reference to Exhibit 10.7 to the Form S-1).
99.3 1998 Executive Long Term Stock Investment Plan (incorporated by
reference to Exhibit 10.8 to the Form S-1).
99.4 1999 Independent Director Stock Option Plan (incorporated by
reference to Exhibit 10 to the Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1999).
*99.5 Non Qualified Stock Option Plan of Emerging Technologies
Consultants, Inc.
____________________
* Filed herewith.
Item 9. Undertakings.
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 to include any material
information with respect to the plan of distribution not previously disclosed in
this registration statement or any material change to such information in this
registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 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
of 1933 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
II-3
<PAGE>
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 of 1933 and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on this 18th day of
February, 2000.
BRAUN CONSULTING, INC.
By: /s/ Steven J. Braun
-------------------------------
Steven J. Braun
President, Chief Executive Officer
and Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints STEVEN J. BRAUN, JOHN C. BURKE and GREGORY A.
OSTENDORF, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution for him, and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this registration statement, and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming that said attorneys-in-fact and agents or any of them,
or their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on February 18, 2000.
<TABLE>
<S> <C>
Signature Title
------------------------------------------- -------------------------------------------
/s/ Steven J. Braun President, Chief Executive Officer and
------------------------------------- Chairman of the Board (Principal
Steven J. Braun Executive Officer)
/s/ John C. Burke Chief Financial Officer and Treasurer
------------------------------------- (Principal Financial Officer and
John C. Burke Principal Accounting Officer)
/s/ Thomas J. Duvall Director
-------------------------------------
Thomas J. Duvall
/s/ Stephen J. Miller Director
-------------------------------------
Stephen J. Miller
/s/ Michael J. Evanisko Director
-------------------------------------
Michael J. Evanisko
/s/ James M. Kalustian Director
-------------------------------------
James M. Kalustian
</TABLE>
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/s/ Norman R. Bobins Director
-------------------------------------
Norman R. Bobins
/s/ William M. Conroy Director
-------------------------------------
William M. Conroy
/s/ William H. Inmon Director
-------------------------------------
William H. Inmon
/s/ Eric V. Schultz Director
-------------------------------------
Eric V. Schultz
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the registration statement on Form S-1 (Reg. No.
333-79251) (the "Form S-1") filed by Braun Consulting).
4.2 Form of Bylaws (incorporated by reference to Exhibit 3.2 to the
Form S-1).
*5.1 Opinion of Locke Liddell & Sapp LLP.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Locke Liddell & Sapp LLP (contained in Exhibit 5.1).
*24.1 Power of Attorney (included on the signature page of this
registration statement).
99.1 1995 Director Stock Option Plan (incorporated by reference to
Exhibit 10.6 to the Form S-1).
99.2 1998 Employee Long Term Stock Investment Plan (incorporated by
reference to Exhibit 10.7 to the Form S-1).
99.3 1998 Executive Long Term Stock Investment Plan (incorporated by
reference to Exhibit 10.8 to the Form S-1).
99.4 1999 Independent Director Stock Option Plan (incorporated by
reference to Exhibit 10 to the Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1999).
*99.5 Non Qualified Stock Option Plan of Emerging Technologies
Consultants, Inc.
____________________
* Filed herewith.
II-7
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF LOCKE LIDDELL & SAPP LLP]
February 18, 2000
Braun Consulting, Inc.
30 West Monroe, Suite 300
Chicago, IL 60603
Gentlemen:
We have acted as counsel for Braun Consulting, Inc., a Delaware corporation
(the "Company") in connection with the registration, pursuant to a Registration
Statement on Form S-8 being filed with the Securities and Exchange Commission
(the "Registration Statement") under the Securities Act of 1933, as amended, of
the offering of up to 4,105,363 shares of the Company's common stock, par value
$.001 per share (the "Common Stock"), which may be issued under the 1995
Director Stock Option Plan, the 1998 Employee Long Term Stock Investment Plan,
the 1998 Executive Long Term Stock Investment Plan, the 1999 Independent
Director Stock Option Plan, and the Non Qualified Stock Option Plan of Emerging
Technologies Consultants, Inc. (collectively, the "Plans").
In such capacity, we have examined the corporate documents of the Company,
including its Certificate of Incorporation and its Bylaws, and resolutions
adopted by its board of directors and committees thereof. We have also examined
the Registration Statement, together with the exhibits thereto, and such other
documents which we have deemed necessary for the purposes of the expressing the
opinion contained herein. We have relied on representations made by and
certificates of the officers of the Company and public officials with respect to
certain facts material to our opinion. We have made no independent
investigation regarding such representations and certificates.
Based upon the foregoing, we are of the opinion that the shares of Common
Stock issued pursuant to the Plans will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Locke Liddell & Sapp LLP
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Braun Consulting, Inc. on Form S-8 of our report dated January 10, 2000 in the
Current Report on Form 8-K filed by Braun Consulting, Inc. on February 14, 2000
and of our report dated May 4, 1999 (July 16, 1999 as to Note 12) appearing in
the Prospectus contained in Registration Statement No. 333-79251 of Braun
Consulting, Inc. on Form S-1 and to the reference to us under the headings
"Selected Financial Data" and "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Chicago, Illinois
February 18, 2000
<PAGE>
EXHIBIT 99.5
NON QUALIFIED STOCK OPTION PLAN
OF
EMERGING TECHNOLOGIES CONSULTANTS, INC.
1. The Corporation has created and adopted a Non-Qualified Stock Option
Employee Benefit Plan (the "Plan") which shall be available to employees who
have been employed by Corporation for a period of four years ("qualified
employee"). The stock available for purchase pursuant to this plan is
designated as "Class B Common Non Voting Stock" of the Corporation. The grant
of the option for the purchase of stock to a qualified employee shall vest in
twenty five percent installments for each full year of employment ("annual
vested stock option"). An employee shall be given credit for all time of
employment whether accrued prior to or subsequent to the adoption of the Plan.
However, such employee shall receive no benefit for partial years of employment,
if termination of employment occurs for any reason, with or without cause.
Further, if any such employee shall voluntarily leave employment or be
terminated for cause within four years of commencement of employment Corporation
shall have the option to reacquire all such shares for the same consideration
paid by employee at the time of the exercise of the option to purchase.
2. A qualified employee shall be given written notice annually of the
employee's right to exercise the annual vested stock option under this
Agreement. The employee shall exercise the annual vested stock option by
delivering an executed Share Option Agreement to the Corporation within 60 days
from the date of notice. The qualified employee shall pay all consideration for
the purchase of the annual vested stock within 30 days of the date of such
exercise. In the event that such qualified employee shall not exercise his or
her annual vested stock option within the said 60 day period or if such employee
fails to fully pay the consideration
<PAGE>
within 30 days of the date of such exercise, then the annual vested stock option
shall lapse subject to the cumulative right to reexercise that and any future
annual vested stock option upon the next anniversary date of employment and
annual notice to the qualified employee. However, all stock options of a vested
employee shall be exercised, if at all, upon the earlier of the qualified
employee's termination of employment or, if there be no termination of
employment for any reason, then upon the fifth anniversary of commencement of
employment and all rights to exercise stock options shall expire unless
previously exercised in accordance with the Plan.
By way of illustration of the above, if a qualified employee is entitled to
a total of 4000 shares under the plan, the said employee's annual vested stock
option shall be 1000 shares. In the event such employee chooses to exercise his
or her annual vested stock option after the first anniversary of employment then
such employee shall execute the Share Option Agreement within the 60 day period
following notice and pay the sum of $500.00 (1000 shares x $.50) within 30 days
thereafter. In the event such employee does not exercise his or her vested
stock option within such 60 days of the notice required herein or pay the
required consideration with 30 days of the exercise of the option then such
option rights shall lapse until the next anniversary of employment at which time
such employee shall be permitted to exercise the annual vested stock option for
that annual period and for all prior periods not exercised.
3. The shareholders and directors have assigned three hundred and fifty
thousand (350,000.00) shares of Common Non-voting Class B stock available for
such Plan, which shall be available to qualified employees in accordance with
the terms of this plan and in accordance with the Schedule A attached. Nothing
in this plan shall prevent Corporation from offering additional share options to
employees either during the course of employment or as an incentive to undertake
employment with the Corporation and such offerings, if any, shall be in the sole
and
2
<PAGE>
absolute discretion of the Corporation. Such additional offerings shall not
create further option rights to qualified employees under the Plan.
4. Any such shares issued pursuant to the Plan shall bear the legend set
forth below:
THE SALE, TRANSFER AND ENCUMBRANCE OF THIS CERTIFICATE IS SUBJECT TO
THE RESTRICTION SET FORTH IN DETAIL IN THE EMPLOYEE BENEFIT PLAN DATED
MAY 28, 1999 AND ON FILE OR AVAILABLE FOR INSPECTION IN THE OFFICE OF
THE SECRETARY OF THE CORPORATION. SHAREHOLDERS MAY OBTAIN, ON WRITTEN
REQUEST AND WITHOUT CHARGE, A COPY OF THIS DOCUMENT AT CORPORATION'S
OFFICE AT 131 GAITHER DRIVE, SUITE F, MT. LAUREL, NEW JERSEY 08054.
5. A share Option Agreement is annexed hereto, the terms of which are
expressly incorporated herein. This shall be the form executed by the
Corporation and qualified employee upon qualification and vesting of the rights
under this plan. The Corporation reserves the right to amend the plan or form
of Share Option Agreement from time to time as shall be necessary or advisable
in the sole and exclusive determination of Corporation.
6. The initial share option price shall be designated at $0.50 per share
but may be revised and amended from time to time by the Voting Shareholders and
Board of Directors of Corporation in the discretion of the Voting Shareholders
and the Board of Directors.
7. In the event Corporation is acquired, consolidated or merged into any
entity ("successor entity") in exchange for equity interests in the acquiring,
consolidating or merged entity the employee shall receive an equivalent equity
interest in such entity. In the event that such acquisition, consolidation or
merger is done in exchange for a combination of equity
3
<PAGE>
interests in such successor entity and cash, the shares held by such employee
pursuant to the Plan shall receive a proportionate share of cash and equity
interest in exchange for the employee's shares.
8. The shares purchased by an employee pursuant to the Plan shall be
subject to applicable State and Federal law and regulation.
9. The Corporation expressly retains the right to create alternate
entities to own and manage certain aspects of the Corporation's business
including but not limited to any "software product" now or hereafter developed
by Corporation. Corporation shall be free to create such alternate entities and
to transfer such portion of the corporation's assets without obligation to
compensate any such shareholder or shareholders for such loss of value, if any,
resulting from such transfer of assets.
Dated: May 28, 1999
EMERGING TECHNOLOGIES CONSULTANTS, INC.
4
