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Registration No. 333-47830
As filed with the Securities and Exchange
Commission on November 28, 2000.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2 TO FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ON FORM S-8
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
(Exact name of registrant as specified in its charter)
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DELAWARE 36-4069408
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
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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)
DIAMONDCLUSTER INTERNATIONAL, INC. 2000 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)
This Post-Effective Amendment No. 2 to Form S-4 Registration Statement on Form
S-8 relates to 8,500,000 shares of Class B Common Stock, par value $.001 per
share, of Diamond Technology Partners Incorporated (the "Registrant") issuable
upon exercise of options issued pursuant to the DiamondCluster International,
Inc. 2000 Stock Option Plan. These shares of Class B Common Stock were
originally registered on the Registrant's Registration Statement on Form S-4 to
which this is an amendment; accordingly, the registration fee in respect of such
Class B Common Stock was paid at the time of the original filing of the
Registration Statement relating to such Common Stock. This Registration
Statement also covers the shares of Class A Common Stock, par value $.001 per
share, into which Class B Common Stock may be converted and that they may be
issued in lieu of the Class B Common Stock to optionees who have ceased to be
permitted holders of the Class B Common Stock as provided in the Registrant's
restated certificate of incorporation.
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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, 2000 (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 8-A 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 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 100,000,000
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
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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 (ii) any
corporation, company, limited liability company, partnership or limited
partnership controlled by an employee or group of employees of the Company or of
any of its majority-owned subsidiaries; (iii) any trust for the primary benefit
of an employee of the Company or any of its majority-owned subsidiaries, or for
the primary benefit of the employee's spouse, lineal ancestors or lineal
descendants, and (iv) 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 may have, from
time to time, 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 DiamondCluster
International, Inc. 2000 Stock Option 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) may have, from time
to time, 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 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.
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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 (filed with the Commission on February 21, 1997,
(File No. 333-17785) (the "Form S-1"), and hereby
incorporated by reference).
4.2 Form of Amendment to the Restated Certificate of
Incorporation of the Company (filed with the Commission on
November 6, 2000, (File No. 333-47830) and hereby
incorporated by reference).
4.3 Amended and Restated By-laws of the Company (filed as
Exhibit 3.2 to the Form S-1 and hereby incorporated by
reference).
4.4 DiamondCluster International, Inc. 2000 Stock Option Plan.
4.5 Form of Stock Option Agreement for Non-Partners.
4.6 Form of Stock Option Agreement for Partners.
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.
23.3 Power of Attorney (included on signature page of original
filing).
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.
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(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 Post-
Effective Amendment No. 2 on Form S-8 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 November, 2000.
DIAMOND TECHNOLOGY PARTNERS INCORPORATED
By: 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 Post-Effective
Amendment No. 2 on Form S-8 to be signed on its behalf by the undersigned,
thereto duly authorized in the City of Chicago, State of Illinois on the
28th day of November, 2000.
DiamondCluster International, Inc.
2000 Stock Option Plan
By: Melvyn E. Bergstein
-------------------
Melvyn E. Bergstein
Management Committee Chairman
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 2 on Form S-8 has been signed by the following persons in the
capacities indicated on the 28th day of November, 2000.
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Signature Title
* Chairman and Chief Executive Officer (Principal
----------------------------
Melvyn E. Bergstein Executive Officer)
* Chief Financial Officer and Treasurer (Principal
----------------------------
Karl E. Bupp Financial and Accounting Officer)
* Vice Chairman, Secretary and Director
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Michael E. Mikolajczyk
* President and Director
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Adam J. Gutstein
* Vice Chairman and Director
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John J. Sviokla
* Director
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Edward R. Andersen
* Director
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Donald R. Caldwell
* Director
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Mark L. Gordon
* Director
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Alan C. Kay
* Director
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John D. Loewenberg
* Director
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Christopher J. Moffit
* Director
----------------------------
Arnold R. Weber
* /s/ Melvyn E. Bergstein
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Attorney-In-Fact
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
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Exhibit Number Description of Document Page
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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 Form of Amendment to the Restated Certificate of
Incorporation of the Company (filed with the Commission on
November 6, 2000, (File No. 333-47830) and hereby
incorporated by reference).
4.3 Amended and Restated By-laws of the Company (filed as
Exhibit 3.2 to the Form S-1 and hereby incorporated by
reference).
4.4 DiamondCluster International, Inc. 2000 Stock Option Plan.
4.5 Form of Stock Option Agreement for Non-Partners.
4.6 Form of Stock Option Agreement for Partners.
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.
23.3 Power of Attorney (included on signature page of original
filing).
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