<PAGE> 1
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 1999 EMPLOYEE STOCK PURCHASE 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 Registered(1) Proposed Maximum Proposed Maximum Amount
be Registered(1) Offering Price per Aggregate Offering of Registra-
Share(3) Price tion Fee
<S> <C> <C> <C> <C>
Class B Common Stock, 600,000 $41.50 $24,900,000.00 $6,922.20
Par value $.001 per
share
Class A Common Stock, (2) (2)
par value $.001 per
share (2)
</TABLE>
- --------------------------------------------------------------------------------
1. In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
2. This Registration Statement also covers the Shares of Class A Common Stock,
par value $.001 per share, into which the Class B Common Stock may be
converted and that may be issued in lieu of the Class B Common Stock
to participants who have ceased to be employees of the Registrant.
3. 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 bid and ask prices of the
Class A Common Stock of the Registrant into which the Class B Common
Stock is convertible as reported on the Nasdaq National Market as of
closing on September 27, 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 Statements 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. 000-26970), 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.
000-26970) 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 S8A filed with the Commission (File No.
000-26970) 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").
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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 Class B Common Stock, par value
$0.001 per share (the "Class B Common Stock"), of the Registrant and 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.
"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.
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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 maybe 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
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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 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
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.
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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 1999 Employee
Stock Purchase Plan.
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
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<PAGE> 7
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.
(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.
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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 27th day of
September, 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 27th day of September, 1999.
Diamond Technology Partners Incorporated
1999 Employee Stock Purchase 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 27th day of September, 1999.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Melvyn E. Bergstein Director, Chairman, President 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 Accountant Officer)
Karl E. Bupp
/s/ Christopher J. Moffit Director and Senior Vice President
- -----------------------------
Christopher J. Moffit
/s/ James C. Spira Director and Senior Vice President
- -----------------------------
James C. Spira
/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
</TABLE>
<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 1999 Employee Stock Purchase Plan.
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>
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<PAGE> 1
EXHIBIT 4.3
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
1999 EMPLOYEE STOCK PURCHASE PLAN
The Diamond Technology Partners Incorporated 1999 Employee Stock Purchase
Plan provides eligible employees of Diamond Technology Partners Incorporated, a
Delaware corporation (the "Company"), and its Subsidiaries an opportunity to
purchase shares of Common Stock of the Company on the terms and conditions set
forth below.
1. Definitions.
-----------
(a) Code - the Internal Revenue Code of 1986, as amended.
(b) Committee - the Company's Management Committee, as constituted from
time to time.
(c) Common Stock - the Company's Class B Common Stock, par value
$0.001 per share, and the Company's Class A Common Stock into which such Class
B Common Stock may be converted.
(d) Compensation - with respect to a Participant, the portion of the
Participant's base salary paid to the Participant during the applicable payroll
period.
(e) Effective Date - April 21, 1999.
(f) Eligible Employee - an employee who is eligible to participate in
the Plan pursuant to Section 3.
(g) Enrollment Date - the Effective Date and each July 1, October 1,
January 1 and April 1 thereafter.
(h) Enrollment Period - the 24 month period commencing on a Grant Date.
(i) Fair Market Value - the average of the closing price of a share of
the Company's Class A Common Stock on the NASDAQ National Market System for the
ten trading days immediately preceding the Grant date or the Purchase Date, as
applicable.
(j) Grant Date - the Enrollment Date as of which a Participant's Option
is granted under Section 4(a).
(k) Option - an option to purchase shares of Common Stock under the
Plan, pursuant to the terms and conditions therof.
(l) Participant - an Eligible Employee who is participating in the Plan
pursuant to Section 4.
<PAGE> 2
(m) Payment Period - the period beginning with the first day of the
calendar quarter and ending on the last day of the calendar quarter following
each Enrollment Date; provided that the first Payment Period shall begin on the
Effective Date and end on September 30, 1999.
(n) Plan - Diamond Technology Partners Incorporated 1999 Employee Stock
Purchase Plan, as amended from time to time.
(o) Plan Account - an account maintained by the Plan Administrator for each
Participant to which the Participant's payroll deductions are credited, against
which funds used to purchase shares of Common Stock are charged and to which
share of Common Stock purchased are credited.
(p) Plan Administrator - such other person or persons, including a
committee, as may be appointed by the Committee to administer the Plan.
(q) Purchase Date - except as provided in Section 15, the last day of a
Payment Period.
(r) Purchase Price - the lesser of 85% of the Fair Market Value of Common
Stock on the Grant Date of an Enrollment Period, or 85% of the Fair Market Value
of a share of Common Stock on the applicable Purchase date of such Enrollment
Period.
(o) Subsidiary - any corporation, other than the Company, in an unbroken
chain of corporations beginning with the Company if, at the time of the granting
of the Option, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
2. Stock Subject to the Plan. Subject to Section 12, the aggregate number of
shares of Common Stock which may be sold under the Plan is 600,000. The Company
shall either make open-market purchases to provide shares of Common Stock for
purchase under the Plan or, at the discretion of the Committee, sell Treasury
shares or issue authorized but unissued shares of Common Stock.
3. Eligible Employees. An "Eligible Employee" means each employee of the
Company and each employee of a Subsidiary to which the Plan is extended by the
Committee, except as otherwise provided in Section 4(c).
4. Participation in the Plan.
(a) An Eligible Employee may participate in the plan effective as of any
Enrollment Date by completing and filing with Plan Administrator 20 days in
advance of such date (or such later date as the Plan Administrator shall deem
equitable under the circumstances), an
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election form which authorizes payroll deductions from such Employee's
Compensation. The Enrollment Date as of which an Eligible Employee commences or
recommences participation in the Plan, and each Enrollment Date as of which an
Eligible Employee renews his authorization under Section 4(b), is a Grant Date.
A Participant's payroll deductions under the plan shall commence on his initial
Grant Date, and shall continue, subject to Section 4(b), until the Eligible
Employee terminates participation in the Plan or the Plan is terminated;
provided, that such payroll deductions shall not commence until the Company has
received such Eligible Employee's election form and such Employee has received
all information required to be disclosed to such Employee under applicable
securities laws.
(b) A Participant's payroll deduction authorization shall be automatically
renewed effective on the Enrollment Date following the conclusion of his initial
Enrollment Period and each subsequent Enrollment Period unless he otherwise
notifies the Plan Administrator in writing at least 20 days in advance of such
date.
(c) Notwithstanding the foregoing, an Eligible Employee shall not be
granted an Option on any Grant Date if such Employee, immediately after the
option is granted, owns stock possessing, 5% or more of the total combined
voting power or value of all classes of stock of the Company or any Subsidiary.
For purposes of this paragraph, the rules of Code Section 424(d) shall apply in
determining the stock ownership of an individual, and stock which an Eligible
Employee may purchase under outstanding options shall be treated as stock owned
by such Employee.
5. Payroll Deductions. An Eligible Employee may participate in the Plan only
through payroll deductions. Payroll deductions shall be made from the
Compensation paid to each Participant for each payroll period in such whole
percentage from 1% to 10% as the Participant shall authorize in his election
form. No Eligible Employee may be granted an Option which permits his rights to
purchase Common Stock under the plan, and any other stock purchase plan of the
Company or any Subsidiary that is qualified under Section 423 of the Code, to
accrue at a rate which exceeds $6,250 of Fair Market Value of such stock
(determined on the Grant Date of such Option) for each calendar quarter of the
Company in which the Option is outstanding at any time.
6. Changes in Payroll Deductions. A Participant may elect to increase or
decrease the amount of his payroll deductions once during a Payment Period by
filing a new election form at any time during that Payment Period. Any such
change shall not become effective sooner than the next Payment Period after
receipt of his election form.
7. Termination of Participation in Plan.
(a) A Participant may, at any time and for any reason, voluntarily
terminate participation in the Plan by written notification of withdrawal
delivered to the appropriate payroll office. Such Participant's payroll
deductions under the Plan shall cease as soon as practicable following delivery
of such notice. If the former Participant remains employed by the Company or any
of its Subsidiaries after termination of his participation in the Plan, any
payroll deductions
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<PAGE> 4
credited to such Participant's Plan Account may be used to purchase shares of
Common Stock on the next Purchase Date or refunded, without interest, to the
Participant, at the election of the Participant. An Eligible Employee whose
participation in the Plan is terminated may rejoin the Plan no earlier than
three months following his withdrawal by filing a new election form in
accordance with Section 4(a).
(b) A Participant's participation in the Plan shall be terminated upon
termination of his or her employment with the Company and its Subsidiaries for
any reason. If a former Participant is no longer employed by the company or
any of its Subsidiaries, any payroll deductions credited to his Plan Account
(plus, in the case of an involuntary termination of employment, interest at the
rate determined by the Plan Administrator) shall be paid to him in cash as soon
as practicable following his termination of employment.
8. Purchase of Shares.
(a) On each Grant Date, each Participant shall be deemed to have been
granted an Option.
(b) On each Purchase Date of an Enrollment Period, each Participant
shall be deemed, without any further action, to have purchased that number of
whole shares of Common Stock determined by dividing the Purchase Price on such
date into the balance in the Participant's Plan Account on the Purchase Date.
Any amount remaining in the Participant's Plan Account shall be carried forward
to the next Purchase Date unless the Plan Account is closed.
(c) As soon as practicable after each Purchase Date, a statement shall
be delivered to each Participant which shall include the number of shares of
Common Stock purchased on the Purchase Date on behalf of such Participant under
the Plan.
(d) A stock certificate for whole shares of Common Stock in a
Participant's Plan Account shall be issued upon request of the Participant at
any time. If the Participant's employment with the Company and all Subsidiaries
terminates, a stock certificate for whole shares of Common Stock in his Plan
Account shall be issued as soon as administratively feasible thereafter. Stock
certificates under the Plan shall be issued, at the election of the Participant,
in his name or in his name and the name of another person as joint tenants with
right of survivorship or as tenants in common. A cash payment shall be made for
any fraction of a share in such account, if necessary to close the account.
9. Rights as a Stockholder. A Participant shall not be treated as the owner
of Common Stock until the Purchase Date of such stock under the Plan. As of the
Purchase Date a Participant shall be treated as the record owner of his shares
purchased on such date pursuant to the Plan. Effective as of the Purchase Date,
such Participant shall agree in writing to become subject to the terms and
conditions of the Second Amended and Restated Voting and Stock Restriction
Agreement, dated August 4, 1997.
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<PAGE> 5
10. Rights Not Transferable. Rights under the Plan are not transferable by
a Participant other than by will or the laws of descent and distribution, and
are exercisable during the Participant's lifetime only by the Participant or by
the Participant's guardian or legal representative. No rights or payroll
deductions of a Participant shall be subject to execution, attachment, levy,
garnishment or similar process.
11. Application of Funds. All funds of Participants received or held by the
Company under the Plan before purchase of the shares of Common Stock shall be
held by the Company without liability for interest or other increment, except as
provided in Section 7(b).
12. Adjustments in Case of Changes Affecting Shares. In the event of a
subdivision or consolidation of outstanding shares of Common Stock of the
Company, or the payment of a stock dividend, the number of shares approved for
the Plan shall be increased or decreased proportionately, and such other
adjustment shall be made as may be deemed equitable by the Plan Administrator.
In the event of any other change affecting the Common Stock, such adjustment
shall be made as shall be deemed equitable by the Plan Administrator to give
proper effect to such event.
13. Administration of the Plan. The Plan shall be administered by the Plan
Administrator. The Plan Administrator shall have authority to make rules and
regulations for the administration of the Plan, and its interpretations and
decisions with regard to the Plan and such rules and regulations shall be final
and conclusive. It is intended that the Plan shall at all times meet the
requirements of Code Section 423,if applicable, and the Plan Administrator
shall, to the extent possible, interpret the provision of the plan so as to
carry out such intent.
14. Amendments to the Plan. The Committee may, at any time, or from time to
time, amend or modify the Plan; provided, however, that no amendment shall be
made increasing or decreasing the number of shares authorized for the Plan
(other than as provided in Section 12 or 15), and that, except to conform the
Plan to the requirements of the Code, no amendment shall be made which would
cause the Plan to fail to meet the applicable requirements of Code section 423.
15. Termination of Plan. The Plan shall terminate upon the earlier of (a)
the fifth anniversary of the Effective Date, (b) the date no more shares remain
to be purchased under the Plan, or (c) the termination of the Plan by the Board
of Directors of the Company as specified below. The Board of Directors of the
Company may terminate the Plan as of any date. The date of termination of the
Plan shall be deemed a Purchase Date. If on such Purchase Date Participants in
the aggregate have Options to purchase more shares of Common Stock than are
available for purchase under the Plan, each Participant shall be eligible to
purchase a reduced number of shares of Common Stock on a pro rata basis in
proportion to his Plan Account balance on such Purchase Date, and any excess
payroll deductions shall be returned to Participants, all as provided by rules
and regulations adopted by the Plan Administrator.
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16. Costs. All costs and expenses incurred in administering the Plan shall
be paid by the Company. Any costs or expenses of selling shares of Company Stock
acquired pursuant to the Plan shall be borne by the holder thereof.
17. Governmental Regulations. The Company's obligation to sell and deliver
its Common Stock pursuant to the plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such stock.
18. Applicable Law. This Plan shall be interpreted under the laws of the
United States of America and, to the extent not inconsistent therewith, by the
laws of the State of Illinois. This Plan is not intended to be subject to the
Employee Retirement Income Security Act of 1974, as amended, but is intended to
comply with Section 423 of the Code, if applicable. Any provisions required to
be set forth in this Plan by such Code section are hereby included as fully as
if set forth in the Plan in full.
19. Effect on Employment. The provisions of this Plan shall not affect the
right of the Company or any Subsidiary or any Participant to terminate the
Participant's employment with the Company or any Subsidiary.
20. Withholding. The Company reserves the right to withhold from stock or
cash distributed to a Participant any amounts which it is required by law to
withhold.
21. Sale of Company. In the event of a proposed sale of all or
substantially all of the assets of the Company or a merger of the Company with
or into another corporation, the Company shall require that each outstanding
Option be assumed or an equivalent right to purchase stock of the successor or
purchaser corporation be substituted by the successor or purchaser corporation,
unless the Plan is terminated.
22. Effective Date. The Plan shall become effective April 21, 1999,
provided that the stockholders of the Company approve it within 12 months after
the date the plan was adopted by the Board of Directors of the Company. If the
Plan is not approved by the stockholders prior to such date, the Plan shall
terminate, all grants hereunder shall be cancelled and be of no further force
and effect, and all persons who shall have been granted Options pursuant to this
Plan shall be entitled to the prompt refund in cash, with interest, of all sums
withheld from or paid by them pursuant to this Plan.
23. Foreign Employees. The Committee may provide for such special terms for
Participants who are foreign nationals, or who are employed by the Company
outside of the United States of America, as it may consider necessary or
appropriate to accommodate differences in local law, tax policy or custom.
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EXHIBIT 5.1
Diamond Technology Partners Incorporated September 27, 1999
875 North Michigan Avenue, Suite 3000
Chicago, Illinois 60611
Re: 600,000 Shares of Class B 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 600,000 shares
of Common Stock, $.001 par value (the "Shares"), of the Company which may be
issued pursuant to the Diamond Technology Partners Incorporated 1999 Employee
Stock Purchase 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
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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 report appear in the March 31, 1999 annual report on Form 10-K
of Diamond Technology Partners Incorporated.
/s/ KPMG LLP
Chicago, Illinois
September 27, 1999
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