-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, S4H8Hvgpnbh/UAKdZFp6/e28Sv+ESThVUL7oWfC2ClFKJHbeyw6roEv+EB6TVE5i yU00APlG5T6HPktyrukA1Q== 0000950131-01-502098.txt : 20010702 0000950131-01-502098.hdr.sgml : 20010702 ACCESSION NUMBER: 0000950131-01-502098 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010629 EFFECTIVENESS DATE: 20010629 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DIAMOND TECHNOLOGY PARTNERS INC CENTRAL INDEX KEY: 0000924940 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MANAGEMENT CONSULTING SERVICES [8742] IRS NUMBER: 364069408 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64276 FILM NUMBER: 1672864 BUSINESS ADDRESS: STREET 1: 875 NORTH MICHIGAN AVE SUITE 3000 CITY: CHICAGO STATE: IL ZIP: 60611 BUSINESS PHONE: 3122555000 MAIL ADDRESS: STREET 1: 875 NORTH MICHIGAN AVE STE 3000 CITY: CHICAGO STATE: IL ZIP: 60611 S-8 1 ds8.txt FORM S-8 FOR EMPLOYEE STOCK PLAN - BRAZIL As filed with the Securities and Exchange Commission on June 29, 2001. UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 DIAMONDCLUSTER INTERNATIONAL, INC. (Exact name of registrant as specified in its charter) Delaware 36-4069408 (State or other jurisdicti on 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) DIAMONDCLUSTER INTERNATIONAL, INC. EMPLOYEE STOCK PURCHASE PLAN - BRAZIL (Full title of plan) Nancy K. Bellis, Vice President and General Counsel DiamondCluster International, Inc. 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
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 Class B Common Stock 75,000 $10.54 $790,500 $198 par value $.001 per share Class A Common Stock (2) (2) par value $.001 per share
____________________________ 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, into which the Class B Common Stock is convertible, as reported on the Nasdaq National Market as of closing on June 27, 2001. 2. 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 employees of the Registrant. 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 DiamondCluster International, Inc., formerly known as 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, 2001 (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 2 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 (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. Employee Stock Purchase Plan - Brazil 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 holders of issued and outstanding Class B Common Stock 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. 3 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. 4 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 Certificate of Amendment to the Restated Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-4 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. Employee Stock Purchase Plan - Brazil. 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. 5 (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. 6 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 29th day of June, 2001. DIAMONDCLUSTER INTERNATIONAL, INC. 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 DiamondCluster International, Inc. (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 29th of June, 2001. DiamondCluster International, Inc. Employee Stock Purchase Plan - Brazil By: 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 29th day of June, 2001.
Signature Title /s/ MELVYN E. BERGSTEIN Chairman and Chief Executive Officer (Principal - ------------------------------------ Executive Officer) Melvyn E. Bergstein /s/ KARL E. BUPP Chief Financial Officer and Treasurer (Principal Financial and - ------------------------------------ Accounting Officer) Karl E. Bupp /s/ MICHAEL E. MIKOLAJCZYK Vice Chairman, Secretary and Director - ------------------------------------ Michael E. Mikolajczyk
7
Signature Title /s/ ADAM J. GUTSTEIN - ----------------------------------------- President and Director Adam J. Gutstein /s/ JAVIER RUBIO - ----------------------------------------- President, Europe and Latin America and Director Javier Rubio /s/ JOHN J. SVIOKLA - ----------------------------------------- Vice Chairman and Director John J. Sviokla /s/ EDWARD R. ANDERSEN - ----------------------------------------- Director Edward R. Andersen /s/ DONALD R. CALDWELL - ----------------------------------------- Director Donald R. Caldwell /s/ MARK L. GORDON - ----------------------------------------- Director Mark L. Gordon /s/ ALAN C. KAY - ----------------------------------------- Director Alan C. Kay /s/ JOHN D. LOEWENBERG - ----------------------------------------- Director John D. Loewenberg /s/ CHRISTOPHER J. MOFFIT - ----------------------------------------- Director Christopher J. Moffit /s/ ARNOLD R. WEBER - ----------------------------------------- Director Arnold R. Weber
8 INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8 Exhibit Number Description of Document 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 Certificate of Amendment to the Restated Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-4 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. Employee Stock Purchase Plan -Brazil. 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. 9 EX-4.4 2 dex44.txt EMPLOYEE STOCK PLAN - BRAZIL Exhibit 4.4 DIAMONDCLUSTER INTERNATIONAL, INC. EMPLOYEE STOCK PURCHASE PLAN - Brazil The DiamondCluster International, Inc. (the "Company") Employee Stock Purchase Plan - Brazil provides eligible employees of DiamondCluster International Ltda, a Brazilian corporation, an opportunity to purchase shares of Common Stock of the Company on the terms and conditions set forth below. 1. Definitions. ----------- (a) Committee - the Company's Worldwide Operating Committee, as constituted from time to time. (b) 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. (c) Compensation - with respect to a Participant, the portion of the Participant's base salary paid to the Participant during the applicable payroll period. (d) Effective Date - July 1, 2001 (e) Eligible Employee - an employee who is eligible to participate in the Plan pursuant to Section 3. (f) Enrollment Date - the Effective Date and each November 1, February 1, May 1, and August 1 thereafter. (g) Enrollment Period - the 24 month period commencing on a Grant Date. (h) 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. (i) Grant Date - the Enrollment Date as of which a Participant's Option is granted under Section 4(a). (j) Option - an option to purchase shares of Common Stock under the Plan, pursuant to the terms and conditions thereof. -1- (k) Participant - an Eligible Employee who is participating in the Plan pursuant to Section 4. (l) Payment Period - the period beginning with the Effective Date and ending on October 31, 2001, and the three-month period ending each January 31, April 30, July 31 and October 31 thereafter. (m) Plan - DiamondCluster International, Inc. Employee Stock Purchase Plan - Brazil, as amended from time to time. (n) 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 shares of Common Stock purchased are credited. (o) Plan Administrator - such other person or persons, including a committee, as may be appointed by the Committee to administer the Plan. (p) Purchase Date - except as provided in Section 15, the last day of a Payment Period. (q) 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. (r) 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 75,000. 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. ------------------------- -2- (a) An Eligible Employee may participate in the Plan effective as of any Enrollment Date by enrolling in the Plan electronically via the Plan website at www.aststockplan.com in advance of such date as the Plan Administrator shall -------------------- deem equitable under the circumstances. This enrollment 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 electronic enrollment and such Employee has received all information required to be disclosed to such Employee under applicable 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. 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, , to accrue at a rate which exceeds $5,000 for each calendar quarter ($20,000 annually) of the Company in which the Option is outstanding at any time. The $20,000 limitation applies to the transfer of funds for the purchase of shares of all non-Brazilian companies. Therefore, if you have transferred ---- currency outside of Brazil for the purchase of shares of a non-Brazilian company during the preceding 12 months or, intend to do so over the next 12 months, your payroll deductions will be adjusted accordingly. 6. Changes in Payroll Deductions. A Participant may elect to increase or ----------------------------- decrease the amount of his payroll deductions once during a Payment Period, via the Plan website, 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. ------------------------------------ -3- (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 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. Except as provided in Section 9(ii), an Eligible Employee whose participation in the Plan is terminated may rejoin the Plan no earlier than three months following his withdrawal by re-enrolling via the Plan website 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. -4- 9. Automatic Withdrawal. If the Fair Market Value of the Shares on any -------------------- Purchase Date of an Enrollment Period is less than the Fair Market Value of the Shares on the Grant Date for such Enrollment Period, then every participant shall automatically (i) be withdrawn from such Enrollment Period at the close of such Purchase Date and after the acquisition of Shares for such Enrollment Period, and (ii) be re-enrolled in the Enrollment Period commencing on the first business day subsequent to such Purchase Date, notwithstanding the last sentence of Section 7(a). 10. 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. 11. 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. 12. 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). 13. 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. 14. 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. 15. 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)., 16. 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 -5- 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 23. Effective Date. The Plan shall become effective July 1, 2001, -------------- 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. -6- EX-5.1 3 dex51.txt OPINION OF COMPANY'S VICE PRESIDENT EXHIBIT 5.1 June 29, 2001 DiamondCluster International, Inc. 875 North Michigan Avenue, Suite 3000 Chicago, Illinois 60611 Re: 75,000 Shares of Class B Common Stock, $.001 par value, of DiamondCluster International, Inc. Dear Sir or Madam: I refer to the Registration Statement on Form S-8 (the "Registration Statement") filed by DiamondCluster International, Inc. (the "Company") with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of 75,000 shares of Class B Common Stock, $.001 par value (the "Shares"), of the Company which may be issued pursuant to the DiamondCluster International, Inc. Employee Stock Purchase Plan - - Brazil. 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. Assuming that all required actions of the directors and stockholders relating to the offering of the Shares are taken, including necessary resolutions, 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 DiamondCluster International, Inc. EX-23.2 4 dex232.txt CONSENT OF KPMG LLP EXHIBIT 23.2 Consent of KPMG LLP The Stockholders and Board of Directors DiamondCluster International, Inc.: We consent to incorporation by reference in this Registration Statement on Form S-8 of DiamondCluster International, Inc. of our reports dated May 1, 2001, relating to the consolidated balance sheets of DiamondCluster International, Inc. and subsidiaries as of March 31, 2000 and 2001, and the related consolidated statements of operations and comprehensive income (loss), stockholders' equity, and cash flows for each of the years in the three-year period ended March 31, 2001, and the related schedule, which reports appear in the March 31, 2001 annual report on Form 10-K of DiamondCluster International, Inc. /s/ KPMG LLP Chicago, Illinois June 29, 2001 -----END PRIVACY-ENHANCED MESSAGE-----