<PAGE>
As filed with the Securities and Exchange Commission on June 28, 2000
Registration No. 333 - _______________
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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)
Braun Consulting, Inc. Retirement Savings Plan
(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 500,000 $23.50 $11,750,000 $3,102
============================================================================================================
</TABLE>
(1) This registration statement covers shares of Common Stock which may be
offered or sold pursuant to the Braun Consulting, Inc. Retirement Savings
Plan, and includes an indeterminate number of shares that may be issuable by
reason of stock splits, stock dividends or similar transactions. In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, the
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Braun Consulting, Inc. Retirement Savings
Plan described herein.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) and (c), based on the average of the high and low sales price
of a share of the Common Stock on June 23, 2000 as reported on the Nasdaq
National Market. Pursuant to Rule 457(h)(2), no separate registration fee is
required with respect to the interests in the Braun Consulting, Inc.
Retirement Savings Plan.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
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") or the Braun Consulting, Inc. Retirement Savings Plan (the
"Plan") with the Securities and Exchange Commission under the Securities
Exchange Act of 1934 are hereby incorporated by reference in this registration
statement:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) amendment on Form 10-K/A to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1999;
(c) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(d) the Company's Current Report on Form 8-K filed February 14, 2000; 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 or the Plan 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. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superceded for the purposes of this registration statement to the
extent that a statement contained or incorporated by reference herein modifies
or supercedes such statement. Any statement so modified or superceded shall not
be deemed, except as so modified or superceded, to constitute a part of this
registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
1
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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.
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.
2
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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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
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.
**24.1 Power of Attorney (included on the signature page of this
registration statement).
**99.1 Braun Consulting, Inc. Retirement Savings Plan.
</TABLE>
____________________
* An opinion of counsel as to the legality of the shares of Common Stock is
not required because such shares are not original issuance securities. In
lieu of an opinion of counsel concerning compliance with the requirements
of ERISA and an Internal Revenue Service ("IRS") determination letter that
the Plan is qualified under Section 401(k) of the Internal Revenue Code of
1986, as amended, the registrant hereby undertakes to submit the Plan and
any amendments thereto to the IRS in a timely manner and will make all
changes required by the IRS in order to qualify the Plan.
** 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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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; 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 (1)(i) and (1)(ii) of this section do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
3
<PAGE>
(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 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.
4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
--------------
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chicago, State of Illinois, on this 28th day of
June, 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 June 28, 2000.
<TABLE>
<CAPTION>
Signature Title
--------------------------- --------------------------------------
<S> <C>
/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>
5
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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
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
--------
trustees of the Braun Consulting, Inc. Retirement Savings Plan have 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
28th day of June, 2000.
BRAUN CONSULTING, INC.
RETIREMENT SAVINGS PLAN
Trustees:
/s/ Steven J. Braun
----------------------------
Steven J. Braun
/s/ John C. Burke
----------------------------
John C. Burke
/s/ Gregory A. Ostendorf
----------------------------
Gregory A. Ostendorf
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
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.
**24.1 Power of Attorney (included on the signature page of this registration statement).
**99.1 Braun Consulting, Inc. Retirement Savings Plan.
</TABLE>
____________________
* An opinion of counsel as to the legality of the shares of Common Stock is
not required because such shares are not original issuance securities. In
lieu of an opinion of counsel concerning compliance with the requirements
of ERISA and an Internal Revenue Service ("IRS") determination letter that
the Plan is qualified under Section 401(k) of the Internal Revenue Code of
1986, as amended, the registrant hereby undertakes to submit the Plan and
any amendments thereto to the IRS in a timely manner and will make all
changes required by the IRS in order to qualify the Plan.
** Filed herewith.
