SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KPMG Consulting, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 22-3680505
(State or Other Jurisdiction of Incorporation) (IRS Employer Identification No.)
1676 International Drive
McLean, Virginia 22102
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. X
--
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. __
Securities Act registration statement file number to which this form
relates: _____________(if applicable).
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange On Which
To Be So Registered Each Class Is To Be Registered
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Common Stock, $.01 par value New York Stock Exchange
Series A Junior Participating
Preferred Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
N/A
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(Title of Class)
Item 1. Description of Registrant's Securities to be Registered.
The classes of securities to be registered hereby are the common stock, par
value $0.01 per share ("Common Stock"), of KPMG Consulting, Inc., a Delaware
corporation (the "Company"), and the associated rights (the "Rights") to
purchase Series A junior participating preferred stock, par value $0.01 per
share of the Company ("Series A Preferred Stock"), such Rights to initially
trade together with the Common Stock. The Company's authorized capital stock
consists of 1,000,000,000 shares of Common Stock and 10,000,000 shares of
preferred stock, par value $0.01 per share.
The Common Stock and associated Rights have heretofore been traded on the
Nasdaq National Market. A Registration Statement on Form 8-A registering the
Common Stock under Section 12(g) of the Securities Exchange Act of 1934 (the
"Exchange Act") was filed with the Securities and Exchange Commission on August
18, 2000. A Registration Statement on Form 8-A registering the Rights was filed
with the Securities and Exchange Commission on October 3, 2001 and amended on
September 6, 2002. This filing is to register the Common Stock and related
Rights under Section 12(b) of the Exchange Act.
A. COMMON STOCK
The following description of the Common Stock and provisions of the
Company's certificate of incorporation, as amended and restated, and bylaws, as
amended and restated, are only summaries and are qualified by reference to the
certificate of incorporation, as amended and restated, and bylaws, as amended
and restated, which have been previously filed with the SEC as exhibits on the
Company's Registration Statement on Form S-1 (File No. 333-36328).
The holders of Common Stock are entitled to receive dividends in cash,
stock of any corporation, or property of the Company, out of legally available
assets or funds of the Company as and when declared by the Company's board of
directors, subject to any dividend preferences that may be attributable to
preferred stock. In the event of the liquidation or dissolution of the Company's
business, the holders of Common Stock will be entitled to receive ratably the
balance of net assets available for distribution after payment of any
liquidation or distribution preference payable with respect to any then
outstanding shares of the Company's preferred stock. Each share of Common Stock
is entitled to one vote with respect to matters brought before the stockholders,
except for the election of any directors who may be elected by vote of any
outstanding shares of preferred stock voting as a class. Holders of Common Stock
are not entitled to cumulative voting for the election of directors. There are
no preemptive, conversion, redemption or sinking fund provisions applicable to
the Common Stock.
The rights and privileges of the Common Stock may be subordinate to the
rights and preferences of any of the Company's preferred stock.
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DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CERTIFICATE OF INCORPORATION AND
BYLAW PROVISIONS
The provisions of Delaware law, and of the Company's certificate of
incorporation, as amended and restated, and bylaws, as amended and restated, may
have the effect of delaying, deferring or discouraging another person from
acquiring control of the Company, including takeover attempts that might result
in a premium over the market price for the shares of Common Stock.
DELAWARE LAW
The Company has expressly elected not to be governed by the provisions of
Section 203 of the Delaware corporate law. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging in a business combination with
an interested stockholder for a three-year period following the time that this
stockholder becomes an interested stockholder, unless the business combination
is approved in a prescribed manner.
CERTIFICATE OF INCORPORATION AND BYLAW PROVISIONS
The Company's certificate of incorporation, as amended and restated,
provides for the division of the Company's board of directors into three classes
as nearly equal in size as possible with staggered three-year terms.
Approximately one-third of the Company's board will be elected each year.
In addition, the Company's certificate of incorporation, as amended and
restated, provides that directors may be removed only for cause and then only by
the affirmative vote of the holders of two-thirds of the outstanding voting
power of the Company's capital stock issued and outstanding and entitled to vote
generally in the election of directors. Under the Company's certificate of
incorporation, as amended and restated, any vacancy on the Company's board of
directors, however occurring, including a vacancy resulting from an enlargement
of the Company's board, may only be filled by vote of a majority of the
Company's directors then in office, even if less than a quorum. The
classification of the Company's board of directors and the limitations on the
removal of directors and filling of vacancies could have the effect of making it
more difficult for a third party to acquire, or of discouraging a third party
from attempting to acquire, control of the Company.
The Company's certificate of incorporation, as amended and restated, also
provides that any action required or permitted to be taken by the Company's
stockholders at an annual meeting or special meeting of stockholders may only be
taken at a stockholders meeting and may not be taken by written consent in lieu
of a meeting. The Company's certificate of incorporation, as amended and
restated, further provides that special meetings of the stockholders may only be
called by the chairman of the board of directors or by a majority of the board
of directors. The Company's bylaws, as amended and restated, provide that
stockholders at an annual meeting may only consider proposals or nominations
specified in the notice of meeting or brought before the meeting by or at the
direction of the board or by a stockholder who was a stockholder of record on
the record date for the meeting, who is entitled to vote at the meeting and who
has
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given to the Company's corporate secretary timely written notice, in proper
form, of the stockholder's intention to bring that proposal or nomination before
the meeting. In addition to some other applicable requirements, for a
stockholder proposal or nomination to be properly brought before an annual
meeting by a stockholder, the stockholder generally must have given notice in
proper written form to the corporate secretary not less than 90 days nor more
than 120 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders. Although the Company's bylaws, as amended and restated,
do not give the board the power to approve or disapprove stockholder nominations
of candidates or proposals regarding other business to be conducted at a special
or annual meeting, the Company's bylaws, as amended and restated, may have the
effect of precluding the consideration of some business at a meeting if the
proper procedures are not followed or may discourage or deter a potential
acquiror from conducting a solicitation of proxies to elect its own slate of
directors or otherwise attempting to obtain control of the Company.
The Company's certificate of incorporation, as amended and restated,
includes a fair price provision which prohibits business combinations with a
related person, unless either:
(a) the holders of the Common Stock receive in the business
combination either:
(i) the same consideration in form and amount per share as the
highest consideration paid by the related person in a tender
or exchange offer in which the related person acquired at
least 50% of the outstanding shares of the Common Stock and
which was consummated not more than one year prior to the
business combination or the entering into of a definitive
agreement for the business combination; or
(ii) not less in amount (as to cash) or fair market value (as to
non-cash consideration) than the highest price paid or
agreed to be paid by the related person for shares of the
Common Stock in any transaction that either resulted in the
related person's beneficially owning 15% or more of the
Common Stock, or was effected at a time when the related
person beneficially owned 15% or more of the Common Stock,
in either case occurring not more than one year prior to the
business combination; or
(b) the transaction is approved by:
(i) a majority of continuing directors; or
(ii) shares representing (x) at least two-thirds of the votes
entitled to be cast by the Common Stock, and (y) a majority
of the votes entitled to be cast by the holders of the
Common Stock, excluding all shares beneficially owned by any
related person.
Under the fair price provision, a related person is any person who
beneficially owns 15% or more of the Common Stock or is an affiliate of the
Company and at any time within the preceding two-year period was the beneficial
owner of 15% or more of the Common Stock
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outstanding. The business combinations involving the Company that are covered by
the fair price provision are:
o any merger or consolidation of the Company or any subsidiary of
the Company with or into a related person or an affiliate of a
related person;
o any sale, lease, exchange, transfer or other disposition of all
or substantially all of the assets of the Company to a related
person or an affiliate of a related person;
o reclassifications, recapitalizations and other corporate actions
requiring a stockholder vote that have the effect of increasing
by more than one percent the proportionate share of the Common
Stock beneficially owned by a related person or an affiliate of a
related person; and
o a dissolution of the Company voluntarily caused or proposed by a
related person or an affiliate of a related person.
A continuing director is a director who is unaffiliated with the related
person and who was a director before the related person became a related person,
and any successor of a continuing director who is unaffiliated with a related
person and is recommended or nominated to succeed a continuing director by a
majority of the continuing directors. Under the fair price provision, KPMG LLP
and its affiliates are not related persons. In addition, any person who acquires
15% or more of the Common Stock directly from KPMG LLP or its affiliates will
not be deemed related persons. The Company's board of directors has also adopted
resolutions excluding Cisco and its affiliates from the definition of related
person.
The Company's certificate of incorporation, as amended and restated,
permits the Company's board of directors, when evaluating:
o a tender offer or exchange for equity securities of the Company;
o a merger with the Company; or
o the possible purchase of all or substantially all of the
properties and assets of the Company
to give due consideration to the effect of any of the above transactions on
constituencies other than the Company's stockholders, including employees,
suppliers, customers, strategic partners, creditors and others having similar
relationships with the Company.
The Delaware General Corporation Law provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or bylaws or to
approve mergers, consolidations or the sale of all or substantially all its
assets, unless a corporation's certificate of incorporation or bylaws, as the
case may be, requires a greater percentage. The Company's certificate of
incorporation, as amended and restated, requires the affirmative vote of the
holders of at least two-thirds of the outstanding voting power of the Company's
capital stock issued and outstanding and entitled to vote
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generally in the election of directors to amend or repeal any of the provisions
of the Company's certificate of incorporation, as amended and restated,
discussed above or to approve mergers, consolidations or the sale of all or
substantially all of the Company's assets. The Company's bylaws, as amended and
restated, may be amended or repealed by a majority vote of the board of
directors, subject to any limitations set forth in the bylaws, and may also be
amended by the stockholders by the affirmative vote of the holders of at least
two-thirds of the outstanding voting power of the Company's capital stock issued
and outstanding and entitled to vote generally in the election of directors. The
two-thirds stockholder vote would be in addition to any separate class vote that
might in the future be required pursuant to the terms of any series of preferred
stock that might be outstanding at the time any of these amendments are
submitted to stockholders.
The Company's certificate of incorporation, as amended and restated,
authorizes the board of directors to issue, without stockholder approval,
preferred stock with such terms as the Company's board may determine.
LIMITATIONS OF LIABILITY AND INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's certificate of incorporation, as amended and restated, limits
the liability of directors to the Company and the Company's stockholders to the
fullest extent permitted by the Delaware General Corporation Law. Specifically,
a director will not be personally liable for monetary damages for breach of
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to the Company
or the Company's stockholders;
o for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law;
o under Section 174 of the Delaware General Corporation Law, which
concerns unlawful payments of dividends, stock purchases or
redemptions; or
o for any transaction from which the director derived an improper
personal benefit.
The certificate of incorporation, as amended and restated, provides that
the Company will indemnify and advance expenses to the Company's officers and
directors to the fullest extent permitted by the Delaware General Corporation
Law, as it now exists or may in the future be amended, against all expenses and
liabilities reasonably incurred in connection with their service for or on
behalf of the Company. These provisions are intended to assist the Company in
attracting and retaining qualified individuals to serve as directors.
B. PREFERRED STOCK
The board of directors of the Company declared a dividend of one Right for
each outstanding share of Common Stock ("Common Share") outstanding on October
2, 2001 (the "Record Date") to the stockholders of record on that date. Each
Right entitles the registered holder to purchase from the Company
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one one-thousandth of a share of Series A Junior Participating Preferred Stock,
par value $0.01 per share (a "Preferred Share" or "the Preferred Stock"), of the
Company, at a price of $90.00 per one one-thousandth of a Preferred Share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement, as amended (the "Rights Agreement"),
between the Company and EquiServe Trust Company, N.A., as rights agent (the
"Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 15% or more of the outstanding
Common Stock or (ii) 10 business days (or such later date as may be determined
by action of the board of directors prior to such time as any Person becomes an
Acquiring Person) following the commencement of, or announcement of an intention
to make, a tender offer or exchange offer the consummation of which would result
in the beneficial ownership by a person or group of 15% or more of the
outstanding Common Stock (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect to any of the
Common Stock certificates outstanding as of the Record Date, by such Common
Stock certificate with a copy of this summary of rights attached thereto.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Stock. Until the Distribution
Date (or earlier redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date or upon transfer or new issuance of
Common Stock will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Stock
outstanding as of the Record Date, even without such notation or a copy of this
summary of rights being attached thereto, will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Stock as of the Close of Business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on October 2, 2011 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Stock or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights
or warrants to subscribe for or purchase Preferred Stock at a price, or
securities convertible into Preferred Stock with a conversion price, less than
the then current market price of the Preferred Stock or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Stock) or of subscription
rights or warrants (other than those referred to above).
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The number of outstanding Rights and the number of one one-thousandths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock, a stock dividend
on the Common Stock payable in Common Stock, or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a quarterly dividend
payment of 1000 times the dividend declared per Common Share. In the event of
liquidation, the holders of the Preferred Stock will be entitled to an aggregate
payment of 1000 times the aggregate payment made per Common Share. Each
Preferred Share will have 1000 votes, voting together with the Common Stock. In
the event of any merger, consolidation or other transaction in which Common
Stock is exchanged, each Preferred Share will be entitled to receive 1000 times
the amount received per Common Share. These rights are protected by customary
antidilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the value of the one one-thousandth interest in a Preferred Share
purchasable upon exercise of each Right approximates the value of one Common
Share.
From and after the occurrence of an event described in Section 11(a)(ii) of
the Rights Agreement, if the Rights evidenced by the Rights Certificate are or
were at any time on or after the earlier of (x) the date of such event and (y)
the Distribution Date (as such term is defined in the Rights Agreement) acquired
or beneficially owned by an Acquiring Person or an Associate or Affiliate of an
Acquiring Person (as such terms are defined in the Rights Agreement), such
Rights shall become void, and any holder of such Rights shall thereafter have no
right to exercise such Rights.
In the event that any person becomes an Acquiring Person, each holder of a
Right, other than Rights beneficially owned by the Acquiring Person and its
Affiliates and Associates (which will thereafter be void), will thereafter have
the right to receive upon exercise that number of Common Shares having a market
value of two times the exercise price of the Right. If the Company does not have
sufficient Common Stock to satisfy such obligation to issue Common Stock, or if
the board of directors so elects, the Company shall deliver upon payment of the
exercise price of a Right an amount of cash or securities equivalent in value to
the Common Stock issuable upon exercise of a Right; provided that, if the
Company fails to meet such obligation within 30 days following the date a Person
becomes an Acquiring Person, the Company must deliver, upon exercise of a Right
but without requiring payment of the exercise price then in effect, Common Stock
(to the extent available) and cash equal in value to the difference between the
value of the Common Stock otherwise issuable upon the exercise of a Right and
the exercise price then in effect. The board of directors may extend the 30-day
period described above for up to an additional 60 days to permit the taking of
action that may be necessary to authorize sufficient additional Common Stock to
permit the issuance of Common Stock upon the exercise in full of the Rights.
In the event that, at any time after a Person becomes an Acquiring Person,
the Company is acquired in a merger or other business combination transaction or
50% or more of its
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consolidated assets or earning power are sold, proper provision will be made so
that each holder of a Right will thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right, that number of
shares of Common Stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise price of the
Right.
At any time after any Person becomes an Acquiring Person and prior to the
acquisition by any person or group of a majority of the outstanding Common
Stock, the board of directors of the Company may exchange the Rights (other than
Rights owned by such person or group which have become void), in whole or in
part, at an exchange ratio of one Common Share per Right (subject to
adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Share will be issued (other than
fractions which are integral multiples of one one-thousandth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Stock on the last trading day prior to the date of
exercise.
At any time prior to the time any Person becomes an Acquiring Person, the
board of directors of the Company may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right (the "Redemption Price"). The redemption of
the Rights may be made effective at such time, on such basis and with such
conditions as the board of directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The terms of the Rights may be amended by the board of directors of the
Company without the consent of the holders of the Rights, except that from and
after such time as any person becomes an Acquiring Person, no such amendment may
adversely affect the interests of the holders of the Rights (other than the
Acquiring Person and its Affiliates and Associates).
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
On August 22, 2002, pursuant to a share purchase agreement dated as of June
8, 2002 (the "Stock Purchase Agreement"), by and among the Company, KPMG DTG,
the majority shareholder of KPMG Consulting AG ("KCA"), and minority
shareholders of KCA as set forth in the Stock Purchase Agreement, the Company
acquired all of the outstanding shares of KCA (the "Acquisition"). In
contemplation of the Acquisition, the Company entered into an amendment of the
Rights Agreement between the Company and EquiServe Trust Company, N.A., as
rights agent (the "Amendment").
Generally, the Amendment modifies the Rights Agreement to provide that
neither the Acquisition nor the issuance of stock to KPMG DTG and other parties
under the share purchase agreement, nor any public disclosure of it, would cause
any person to become an Acquiring Person under the Rights Agreement or trigger
the issuance of Rights Certificates or the
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exercisability of the Rights themselves. Specifically, the Amendment provides,
among other things, that:
(i) no person shall become an "Acquiring Person" solely as a result
of execution and delivery of the Stock Purchase Agreement;
(ii) the execution and delivery or public disclosure of the Stock
Purchase Agreement shall not constitute a "Stock Acquisition
Date"; and
(iii) no "Distribution Date" will be deemed to have occurred solely
due to the execution and delivery of the Stock Purchase Agreement
or the transactions contemplated thereby.
A copy of the Rights Agreement is filed as an Exhibit to the Company's
Registration Statement on Form 8-A dated October 3, 2001. This summary
description of the Rights does not purport to be complete and is qualified in
its entirety by reference to the Rights Agreement, as amended, which is hereby
incorporated herein by reference.
The summary description of the Amendment is not intended to be complete.
You should read the entire text of the Amendment, which is attached as Exhibit
1.5, and incorporated by reference to the Company's Current Report on Form 8-K
filed with the Securities and Exchange Commission on September 6, 2002.
Item 2. Exhibits.
Not applicable.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Date: September 17, 2002 By: /s/ David W. Black
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David W. Black
Executive Vice President,
General Counsel & Secretary
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