<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON DECEMBER __, 1999.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-4069408
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
875 N. MICHIGAN AVENUE, SUITE 3000
CHICAGO, ILLINOIS 60611
(312) 255-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DIAMOND TECHNOLOGY PARTNERS INCORPORATED ADVISORS STOCK OPTION PLAN
(FULL TITLE OF PLAN)
NANCY K. BELLIS, VICE PRESIDENT AND GENERAL COUNSEL
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
875 N. MICHIGAN AVENUE, SUITE 3000
CHICAGO, ILLINOIS 60611
(312) 255-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
BE REGISTERED) REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING OF REGISTRA-
SHARE(1) PRICE TION FEE
<S> <C> <C> <C> <C>
Class A Common Stock 350,000 $63 $22,050,000 $5,821.20
par value $.001 per
share
</TABLE>
1. Computed in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee. Computation
based upon the average of the high and low prices of the Class A Common
Stock of the Registrant as reported on the Nasdaq National Market as of
closing on December 3, 1999.
<PAGE> 2
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that have been filed with the Securities and
Exchange Commission (the "Commission") by Diamond Technology Partners
Incorporated (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1999 (File No. 000-22125), containing audited financial statements for
the Company's latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (File No.
000-22125) since the end of the fiscal year covered by the Annual Report on Form
10-K referenced above; and
(c) The description of the Class A Common Stock which is contained in the
registration statement on Form 8A filed with the Commission (File No. 000-22125)
under the Exchange Act, including any subsequent amendment or any report filed
for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act 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 are deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the respective dates of
filing of such documents (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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
This Registration Statement relates to the Class A Common Stock, par value
$0.001 per share (the "Class A Common Stock") of the Registrant.
The authorized capital stock of the Registrant consists of 40,000,000
shares of Class A Common Stock, 20,000,000 shares of Class B Common Stock, and
2,000,000 shares of Preferred Stock, par value $1.00 per share (the "Preferred
Stock").
Class A Common Stock is entitled to one vote per share and Class B Common
Stock is entitled to five votes per share on all matters submitted to a vote of
holders of Common Stock. Class B Common Stock may be owned beneficially or of
record only by Permitted Holders (as defined below). In the event that any share
of Class B Common Stock is transferred to any party other than a Permitted
Holder or if a beneficial or record holder of a share of Class B Common Stock
ceases to be a Permitted Holder, the share automatically and immediately shall
be converted into a share of Class A Common Stock. Shares of Class A Common
Stock may not be converted into shares of Class B Common Stock.
2
<PAGE> 3
"Permitted Holders" of Class B Common Stock are (i) persons who are
employees of the Company or any of its majority-owned subsidiaries and (ii) the
Company. A person shall cease to be a Permitted Holder on the date on which he
or she ceases to be an employee of the Company or any of its majority-owned
subsidiaries.
The holders of Class A Common Stock and Class B Common Stock (together,
the "Common Stock") do not have cumulative voting rights. The election of
directors is determined by a plurality of votes cast and, except as otherwise
required by law or the Certificate of Incorporation of the Company, all other
matters are determined by a majority of the votes cast. All of the holders of
the Class B Common Stock have granted proxies to the Chief Executive Officer of
the Company to vote their shares. Accordingly, the Chief Executive Officer will
have the voting power to elect the Company's entire Board of Directors.
The holders of Common Stock are entitled to receive ratably such
dividends, if any, as may be declared by the Board of Directors out of funds
legally available therefor, subject to any preferential dividend rights of
outstanding Preferred Stock. Upon the liquidation, dissolution or winding up of
the Company, the holders of Common Stock are entitled to receive ratably the net
assets of the Company available after the payment of all debts and other
liabilities. Holders of the Common Stock have no preemptive, subscription,
redemption or conversion rights other than as described herein. The outstanding
shares of Common Stock are, and the shares offered by the Company under the
Diamond Technology Partners Incorporated 1998 Equity Incentive Plan will be,
when issued and paid for in accordance with the plan and the forms of stock
option agreement thereunder, fully paid and nonassessable. The rights,
preferences and privileges of holders of Common Stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of
Preferred Stock, which the Company may designate and issue in the future.
The Company, by resolution of the Board of Directors and without any
further vote or action by the stockholders, has the authority, subject to
certain limitations prescribed by law, to issue from time to time up to an
aggregate of 2,000,000 shares of Preferred Stock in one or more classes or
series and to determine the designation and the number of shares of any class or
series as well as the voting rights, preferences, limitations and special
rights, if any, of the shares of any such class or series, including the
dividend rights, dividend rates, conversion rights and terms, voting rights,
redemption rights and terms, and liquidation preferences. The issuance of
Preferred Stock may have the effect of delaying, deferring or preventing a
change of control of the Company. As of the date hereof, there are no shares of
Preferred Stock outstanding, and the Company has no present plans to issue any
shares of Preferred Stock.
The Company has adopted a number of provisions in its charter and bylaws
that may make a change in control difficult, if not impossible, and therefore
may tend to discourage an unsolicited or unfriendly takeover bid. The Company's
Class B Common Stock is entitled to five votes per share. All of the issued and
outstanding Class B Common Stock is owned, and after the Offering will continue
to be owned, by employee stockholders of the Company, all of whom have granted
proxies to the Chief Executive Officer of the Company to vote their shares.
Therefore, the Chief Executive Officer (or his successors) will have the power
to determine all matters submitted to a vote of Stockholders, including any
matter related to a change in control of the Company. The charter and bylaws of
the Company also provide that special stockholders meetings may be called only
by the Chairman of the Board of Directors, by the Secretary at the direction of
the Board of Directors, or by stockholders holding at least 30% of the issued
and outstanding shares of outstanding Common Stock. Notice of stockholder
proposals at annual meetings of stockholders must be presented to the Company at
least 45 days prior to the date of the meeting; provided, however, that if less
than 60 days' notice is given to stockholders, notice of stockholder proposals
must be presented to the Company no later than 15 days following the day on
which notice of the annual meeting was given. In addition, the Company's Board
of Directors is divided into three classes, each of which serves for a staggered
three-year term, which may make it more difficult for a third party to gain
control of the Board of Directors.
3
<PAGE> 4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Nancy K. Bellis is Vice President and General Counsel of the Company. As
of the date hereof, Ms. Bellis has been granted options to acquire 37,500 shares
of Class B Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's By-laws require the Registrant to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed proceeding by reason of the fact that he is or was a
director or officer of the Registrant or is or was serving at the request of the
Registrant as a director, officer, employee, fiduciary or agent of another
corporation, trust or other enterprise against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such proceeding if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any such criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. Such
indemnification as to expenses is mandatory to the extent the individual is
successful on the merits of the matter. Delaware law permits the Registrant to
provide similar indemnification to employees and agents who are not directors or
officers. The determination of whether an individual meets the applicable
standard of conduct may be made by the disinterested directors, independent
legal counsel or the stockholders. Delaware law also permits indemnification in
connection with a proceeding brought by or in the right of the Registrant to
procure a judgment in its favor. Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended (the "Act") may be
permitted to directors, officers, or persons controlling the Registrant pursuant
to the foregoing provisions, the Registrant has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in that Act and is therefore unenforceable.
The Registrant maintains a directors and officers liability insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
4
<PAGE> 5
ITEM 8. EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
4.1 Restated Certificate of Incorporation of the Company filed
as Exhibit 3.1 to the Company's Registration Statement on
Form S-1 and any amendments thereto (filed with the
Commission on February 21, 1997, (File No. 333-17785) (the
"Form S-1"), and hereby incorporated by reference).
4.2 Amended and Restated By-laws of the Company (filed as
Exhibit 3.2 to the Form S-1 and hereby incorporated by
reference).
4.3 Diamond Technology Partners Incorporated Form of Stock
Option Agreement.
5.1 Opinion of the Company's Vice President and General Counsel
as to the legality of the securities being registered.
23.1 Consent of the Company's Vice President and General Counsel
(included in her opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company 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 this 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 this Registration Statement;
and
(iii) 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.
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 by the Company pursuant
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for purposes 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 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 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.
5
<PAGE> 6
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 6th day of
December, 1999.
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
By: /s/ MELVYN E. BERGSTEIN
---------------------------------------
Melvyn E. Bergstein, Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Management Committee of Diamond Technology Partners Incorporated (which
administers the employee benefit plan) has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly authorized
in the City of Chicago, State of Illinois on the 6th day of December, 1999.
Diamond Technology Partners Incorporated
Advisors Stock Option Plan
By: /s/ MELVYN E. BERGSTEIN
-----------------------------
Melvyn E. Bergstein
Management Committee Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Melvyn E. Bergstein and Michael E.
Mikolajczyk, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange 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 in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each said attorneys-in fact and agents, or his or their 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 the 6th day of December, 1999.
SIGNATURE TITLE
/s/ MELVYN E. BERGSTEIN Director, Chairman and Chief Executive
- ---------------------------- Officer (Principal Executive Officer)
Melvyn E. Bergstein
/s/ MICHAEL E. MIKOLAJCZYK Director and President
- ----------------------------
Michael E. Mikolajczyk
/s/ KARL E. BUPP Vice President and Chief Financial Officer
- ---------------------------- (Principal Accounting Officer)
Karl E. Bupp
7
<PAGE> 8
SIGNATURE TITLE
/s/ ADAM J. GUTSTEIN Director and Chief Operating Officer
- -----------------------------
Adam J. Gutstein
/s/ CHRISTOPHER J. MOFFIT Director
- -----------------------------
Christopher J. Moffit
/s/ JOHN J. SVIOKLA Director
- -----------------------------
John J. Sviokla
/s/ EDWARD R. ANDERSEN Director
- -----------------------------
Edward R. Andersen
/s/ DONALD R. CALDWELL Director
- -----------------------------
Donald R. Caldwell
/s/ ALAN KAY Director
- -----------------------------
Alan Kay
/s/ JOHN D. LOEWENBERG Director
- -----------------------------
John D. Loewenberg
/s/ MARK L. GORDON Director
- -----------------------------
Mark L. Gordon
/s/ ARNOLD R. WEBER Director
- -----------------------------
Arnold R. Weber
8
<PAGE> 9
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT PAGE
<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Company filed
as Exhibit 3.1 to the Company's Registration Statement on
Form S-1 and any amendments thereto (filed with the
Commission on February 21, 1997, (File No. 333-17785) (the
"Form S-1"), and hereby incorporated by reference).
4.2 Amended and Restated By-laws of the Company (filed as
Exhibit 3.2 to the Form S-1 and hereby incorporated by
reference).
4.3 Diamond Technology Partners Incorporated Form of Stock
Option Agreement.
5.1 Opinion of the Company's Vice President and General Counsel
as to the legality of the securities being registered.
23.1 Consent of the Company's Vice President and General Counsel
(included in her opinion filed as Exhibit 5.1).
23.2 Consent of KPMG LLP.
</TABLE>
9
<PAGE> 1
EXHIBIT 4.3
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
NON-EMPLOYEE STOCK OPTION AGREEMENT
THIS AGREEMENT (the "Agreement"), effective as of the 1st day of April,
1999, is entered into by and between Diamond Technology Partners Incorporated, a
Delaware corporation (the "Company") and ________________________ (the
"Optionee").
WHEREAS, Optionee is a nonemployee consultant or service provider to
the Company; and
WHEREAS, the Company desires to grant Optionee non-qualified options to
purchase shares of $0.001 par value common stock of Company on the terms and
conditions contained in this Agreement; and
WHEREAS, the parties hereto desire to evidence in writing the terms and
conditions of the Option.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
All capitalized terms used herein shall have the meanings set forth in
this section, unless expressly provided otherwise herein.
(a) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(b) "Committee" means the Company's Management Committee, as
constituted from time to time, or any other committee appointed by the
Board of Directors of the Company.
(c) "Date of Grant" shall mean the date of this Option
Agreement as set forth above.
(d) "Disability" shall mean any medically determinable
physical or mental impairment which prevents the Optionee from engaging
in any substantial gainful activity and which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months. Disability shall be
determined by the Committee based upon medical reports and other
evidence satisfactory to the Committee.
(e) "Option" shall mean the right to purchase Stock which has
been granted pursuant to this Agreement.
(f) "Option Shares" shall mean the shares of Stock subject to
the Option.
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<PAGE> 2
(g) "Stock" shall mean the $0.001 par value Common Stock of
the Company or, in the event that the Company becomes a wholly-owned
subsidiary of another corporation, the common stock of that entity.
-2-
<PAGE> 3
2. GRANT OF OPTION; EXERCISE PRICE.
The Company hereby grants to the Optionee this Option to purchase all
or any part of Twelve Thousand (12,000) shares of Stock at the Exercise Price of
Twenty Dollars and Thirty Cents ($20.30) per share, on the terms and conditions
set forth herein.
3. RESTRICTIONS ON TRANSFER.
(a) This Option may not be transferred, assigned, pledged or
hypothecated in any way and will not be subject to execution,
attachment or similar process, except by will or under the laws of
descent and distribution or pursuant to a domestic relations order
issued by a court of competent jurisdiction and, in any event, will be
subject to this Agreement.
(b) This Option will terminate immediately upon any attempted
transfer, assignment, pledge or hypothecation of this Option in
violation of this Section 3, and any attempted transfer, assignment,
pledge or hypothecation of any Option Shares in violation of this
Section 3 will be void without further action by the Company and have
no effect.
4. VESTING OF OPTION.
This Option is exercisable only upon and after vesting. Except as
provided in this Section 4, this Option shall cliff vest in annual increments
over a four (4) year period beginning on the Date of Grant according to the
following schedule:
(a) as to the first fifteen percent (15%) of the Option Shares, two
(2) years after the Date of Grant;
(b) as to the next thirty percent (30%) of the Option Shares, on the
third anniversary of the Date of Grant; and
(c) as to the final fifty-five percent (55%) of the Option Shares, on
the fourth anniversary of the Date of Grant.
The foregoing vesting schedule assumes the Optionee's continuous
performance of services for the Company through the vesting period. Except as
provided below, no portion of this Option shall vest after the date the Optionee
ceases to perform services for the Company for any reason, and any unvested
portion of this Option theretofore held by the Optionee in such case shall be
canceled as of that date.
5. WHEN OPTION MAY BE EXERCISED.
(a) Except as provided in subsections (b) and (c) of this
Section 5, the vested portion of this Option shall be exercised, if at
all, by the Optionee at any time before the fifth anniversary of the
Date of Grant.
(b) If the Optionee ceases to perform services for the Company
for any reason, the Optionee's vested Options must be exercised, if at
all, not later than 90 days following the date the Optionee ceases to
perform such services. Any unvested portion of this Option terminates
immediately upon the cessation of Optionee's services for the Company.
-3-
<PAGE> 4
(c) The Committee shall have the discretion, exercisable at
any time before a sale, merger, consolidation, reorganization,
liquidation or change of control of the Company, as defined by the
Committee, to provide for the acceleration of vesting and for
settlement, including cash payment, of the Option upon or immediately
before the effectiveness of such event.
6. EXERCISE OF OPTION.
(a) During the Optionee's lifetime, this Option shall be
exercisable only by the Optionee or his or her legal representative or
guardian. In the event of the Optionee's death, this Option shall be
exercisable by the person or entity (including the Optionee's estate)
that has obtained the Optionee's rights under the Option by will or
under the laws of descent and distribution.
(b) This Option may be exercised by submitting to the Company
(1) a Notice of Exercise in the form attached hereto as Exhibit A; (2)
any written representations, covenants, and other undertakings that the
Company may prescribe to satisfy securities laws and regulations or
other requirements; and (3) a certified or bank cashier's check payable
to the order of the Company in an amount equal to the full purchase
price of the Option Shares to be purchased.
7. WITHHOLDING OF TAXES.
The Company, by itself or through a subsidiary, as applicable, shall
make such provisions and take such steps as either may deem necessary or
appropriate for the withholding of any taxes which any of them is required by
any law or regulation by any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with this Option,
including, but not limited to, the withholding of the issuance of all or any
portion of the Option Shares subject to this Option until the holder of this
Option reimburses the Company or its subsidiary, as the case may be, for the
amount required to be withheld with respect to such taxes, canceling any portion
of the issuance of the Option Shares subject to this Option in an amount
sufficient to reimburse the Company or its subsidiary, as the case may be, for
such amount, deducting from the Optionee's compensation an amount sufficient to
reimburse the Company or its subsidiary, as the case may be, for such amount, or
taking any other action reasonably required to satisfy any withholding
obligations.
8. STOCKHOLDER RIGHTS.
The Optionee shall have none of the rights of a shareholder with
respect to the Option Shares until the transfer of such shares to the Optionee
has been duly recorded on the stock transfer books of the Company upon the
exercise of the Option.
9. DILUTION.
In the event of any stock dividend, stock split, combination or
exchange of shares, merger, consolidation, spinoff, recapitalization or other
distribution (other than normal cash dividends) of Company assets to
stockholders, or any other change affecting shares of Stock or share price, such
proportionate adjustments, if any, as the Committee in its discretion may deem
-4-
<PAGE> 5
appropriate to reflect such change shall be made with respect to this Option and
the Exercise Price.
10. CONTINUED SERVICES NOT PRESUMED.
Nothing in this Agreement shall give the Optionee the right to continue
in his or her capacity as a consultant or service provider to the Company or
affect the right of the Company to terminate the services of the Optionee for
any reason or no reason at all at any time.
11. NON-QUALIFIED STOCK OPTION.
This Option DOES NOT qualify as an "incentive stock option" under the
Code.
-5-
<PAGE> 6
12. NOTICES.
All notices by one party to the other under this Agreement shall be in
writing. Any notice under this Agreement to the Company shall be addressed to
the Company at Suite 3000, 875 N. Michigan Avenue, Chicago, Illinois 60611, and
any notice to the Option shall be addressed to the Optionee at the address
listed beneath Optionee's signature hereto. If mailed by United States mail,
properly addressed and proper postage prepaid or if sent by recognized overnight
courier service, notice shall be effective on the date of mailing or delivery to
such carrier. If served personally, notice shall be effective as of the date of
delivery to the address of the party to whom the notice is addressed. If the
effective date as provided above is not a business day, the effective date shall
be the next regular business day. Either party may at any time notify the other
in writing of a new address for service of notice upon that party.
13. SEVERABILITY.
If any provision of this Agreement for any reason should be found by
any arbitrator or court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such declaration shall not affect the
validity, legality, or enforceability of any remaining provision or portion
hereof, which remaining provision or portion shall remain in full force and
effect as if this Agreement had been adopted with the invalid, illegal or
unenforceable provision or portion eliminated.
14. HEADINGS.
The headings and captions utilized in this Agreement shall not be
construed to limit or modify the terms or meaning of this Agreement.
15. AGREED FORUM.
All acts required to be performed by the Optionee hereunder shall be
deemed to be performed in Chicago, Cook County, Illinois, and the Optionee
hereby submits to the jurisdiction of any state or Federal court located in
Chicago, Illinois and waives any and all objections to the jurisdiction of such
counts and the venue of any action brought therein.
16. ARBITRATION.
In the event of a dispute relating to this Stock Option Agreement, the
parties agree to attempt in good faith to resolve the dispute among themselves.
If this is unsuccessful, the parties shall attempt to mutually agree on an
alternative dispute resolution mechanism. If the parties cannot so agree on an
alternative dispute resolution mechanism, then the parties shall submit this
dispute to binding arbitration under the Commercial Rules of the American
Arbitration Association. The parties shall each bear one-half of the costs of
the alternative dispute resolution mechanism.
Each party shall select an arbitrator of its choice within 20 days of
the giving or receipt of notice of arbitration. The two, in turn, shall choose a
third presiding arbitrator. If the two shall be unable to agree upon the
presiding arbitrators or if any party fails or refuses to appoint an arbitrator,
the appointing authority shall have the power to make an appointment.
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<PAGE> 7
The award of the arbitrators, which shall be in writing and furnished
within 30 days of the last day of the hearing, shall be final and binding upon
the parties and neither party shall appeal the award to any court. Judgment for
enforcement of the award of the arbitrators may be entertained by a court having
jurisdiction thereof. The parties acknowledge that this provision and any award
rendered pursuant to it shall be governed by the federal Uniform Arbitration
Act.
17. EQUITABLE RELIEF.
The Company shall be entitled to enforce the terms and provisions of
this Agreement by an action for injunction or specific performance or an action
for damages or all of them, or may be made the subject of the arbitration
proceedings described in the preceding section.
18. APPLICABLE STATE LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Illinois.
19. SUCCESSORS AND ASSIGNS.
Subject to the limitations of the transferability of this Option, this
Agreement shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Non-Employee
Stock Option Agreement as of the day and year first above written.
OPTIONEE: THE COMPANY:
Diamond Technology Partners
Incorporated
By:
- ---------------------------- ---------------------------------
Name: Name: Melvyn E. Bergstein
----------------------- Title: Chief Executive Officer
ADDRESS:
- ----------------------------
- ----------------------------
- ----------------------------
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<PAGE> 8
EXHIBIT A
TO
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
NON-EMPLOYEE STOCK OPTION AGREEMENT
NOTICE OF EXERCISE
(To be executed only upon exercise of the Option)
Reference is made to the Diamond Technology Partners Incorporated
Non-Employee Stock Option Agreement, dated as of April 1, 1999 (the "Option
Agreement"), between Diamond Technology Partners Incorporated, a Delaware
corporation (the "Company") and ________________________________ (the
"Optionee"). Capitalized terms used herein and not otherwise defined have the
meanings assigned to such terms in the Option Agreement.
1. The Optionee hereby irrevocably exercises the option for and
purchases _________________________ shares of Stock.
2. The full purchase price for the shares of Stock being purchased
hereunder, calculated in accordance with the Option Agreement, is
$____________________, and the Optionee is delivering to the Company
simultaneously with the delivery of this Notice of Exercise a certified or bank
cashier's check payable to the order of the Company in such amount.
3. The shares of Stock being purchased hereunder are being acquired for
the Optionee's own account and not with a view to distribution thereof in
violation of applicable federal or state securities laws.
4. The Optionee requests that certificates for the shares of Stock
being purchased hereunder be issued in the name of and delivered to the Optionee
at the following address:
----------------------------------
----------------------------------
----------------------------------
Dated as of
--------------------
- ------------------------------------
(Signature)
- ------------------------------------
(Printed Name)
-8-
<PAGE> 1
EXHIBIT 5.1
December 6, 1999
Diamond Technology Partners Incorporated
875 North Michigan Avenue, Suite 3000
Chicago, Illinois 60611
RE: 350,000 Shares of Class A Common Stock, $.001
par value, of Diamond Technology Partners Incorporated
Dear Sir or Madam:
I refer to the Registration Statement on Form S-8 (the "Registration
Statement") filed by Diamond Technology Partners Incorporated (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the registration of 350,000 shares
of Class A Common Stock, $.001 par value (the "Shares"), of the Company which
may be issued pursuant to the Diamond Technology Partners Incorporated Advisors
Stock Option Plan (the "Plan").
I am familiar with the proceedings to date with respect to the Plan and
the proposed issuance and sale of the Shares and have examined such records,
documents and questions of law, and I am satisfied as to such matters of fact,
as I have considered relevant and necessary as a basis for this opinion.
Based on the foregoing, I am of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware.
2. The Shares will be, as and when acquired in accordance with the
terms and conditions of the Plan, legally issued, fully paid and non-assessable
under the Delaware General Corporation Law.
I do not find it necessary for the purposes of this opinion to cover,
and accordingly I express no opinion as to, the application of the securities or
blue sky laws of the various states to the sale of the Shares.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ NANCY K. BELLIS
-------------------------------------------
Vice President and General Counsel
of Diamond Technology Partners Incorporated
<PAGE> 1
EXHIBIT 23.2
CONSENT OF KPMG LLP
The Stockholders and Board of Directors
Diamond Technology Partners Incorporated:
We consent to incorporation by reference in this Registration Statement on Form
S-8 of Diamond Technology Partners Incorporated of our reports dated April 19,
1999, relating to the consolidated balance sheets of Diamond Technology Partners
Incorporated and subsidiary as of March 31, 1998 and 1999, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the years in the three-year period ended March 31, 1999, and the related
schedule, which reports appear in the March 31, 1999 annual report on Form 10-K
of Diamond Technology Partners Incorporated.
/s/ KPMG LLP
Chicago, Illinois
December 6, 1999
