{"id":41660,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/partners-operating-agreement-diamond-technology-partners-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"partners-operating-agreement-diamond-technology-partners-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/partners-operating-agreement-diamond-technology-partners-inc.html","title":{"rendered":"Partners&#8217; Operating Agreement &#8211; Diamond Technology Partners Inc."},"content":{"rendered":"<pre>                             AMENDED AND RESTATED\n\n                         PARTNERS' OPERATING AGREEMENT\n                         -----------------------------\n\n     THIS AMENDED AND RESTATED PARTNERS' OPERATING AGREEMENT (this 'Agreement')\nis entered into as of the 1st day of April, 1996, among DIAMOND TECHNOLOGY\nPARTNERS, INC., an Illinois corporation (the 'Company') and certain individuals\ndesignated by the Company or any 'Affiliate' (as defined in Section 1.1(f)\nhereof) as a 'Partner;' said individuals and all other persons who may hereafter\nbe designated by the Company or any Affiliate as 'Partners' pursuant to the\nprovisions hereof, are referred to herein collectively as the 'Partners' and\nindividually as a 'Partner.'\n\n                                  WITNESSETH:\n\n     WHEREAS, the parties to this Agreement entered into that certain Partners'\nOperating Agreement dated as of March 22, 1994, which was amended by:  (i) a\ncertain First Amendment to Diamond Technology Partners, Inc. Partners' Operating\nAgreement dated June 24, 1994; (ii) a certain Second Amendment to Diamond\nTechnology Partners, Inc. Partners' Operating Agreement dated as of November 30,\n1994; and (iii) a certain Third Amendment to Diamond Technology Partners, Inc.\nPartners' Operating Agreement dated as of April 27, 1995 (collectively, the\n'Prior Partners' Operating Agreement'), whereby the parties established a set of\nprocedures relating to the utilization of the combined voting power of the\nPartners' shares of stock of the Company, including internal governance and\ncompensation provisions to be realized through the strength of said combined\nvoting power and whereby the parties granted a proxy to the person holding the\nposition of Chairman of the Board and Chief Executive Officer of the Company and\nprovided for the selection of any successors to such Chief Executive Officer\n('CEO');\n\n     WHEREAS, the parties to this Agreement and various other shareholders of\nthe Company entered into that certain Voting and Stock Restriction Agreement\ndated as of March 22, 1994, which was amended by:  (i) a certain Amendment to\nVoting and Stock Restriction Agreement dated as of March 22, 1994; (ii) a\ncertain Amendment Number Two to Voting and Stock Restriction Agreement dated as\nof November 30, 1994; and (iii) a certain Amendment Number Three to Voting and\nStock Restriction Agreement dated as of April 27, 1995 (collectively the 'Prior\nVoting Agreement');\n\n     WHEREAS, contemporaneously with the execution and delivery of this\nAgreement, the Prior Voting Agreement is being amended and restated in its\nentirety, to provide, among other things, for the incorporation therein of the\nprovisions relating to the grant of the proxy to the CEO (the 'Voting\nAgreement');\n\n     WHEREAS, a Delaware company has been, or will be, organized by the\nshareholders of the Company to own the stock of, and to provide certain\nmanagement services for, the Company and other possible Affiliates; and\n\n \n     WHEREAS, the parties wish to amend each of the aforementioned agreements,\nand, in light of the agreements having already been amended several times, now\nwish to amend and restate the Prior Partners' Operating Agreement in its\nentirety, to eliminate certain provisions that will be incorporated into the\nVoting Agreement and to modify the Prior Partners' Operating Agreement to\nincorporate the new company structure resulting from the reincorporation and the\nformation of a wholly owned subsidiary;\n\n     NOW, THEREFORE, for and in consideration of the foregoing premises and the\nmutual covenants and agreements contained herein, and other good and valuable\nconsideration, the receipt, sufficiency and adequacy of which are hereby\nacknowledged, the parties hereto agree as follows:\n\n                                   ARTICLE I\n\n                                 SUCCESSOR CEO\n                                 -------------\n\n1.1. Selection of Successor.\n     ---------------------- \n\n  Upon any CEO of the Company ceasing to hold the office of CEO as determined\naccording to the terms of the Voting Agreement, his or her successor shall be\nselected by means of the following procedures, which shall be conducted as\nexpeditiously as possible as soon as the occasion shall arise:\n\n          (a)   The Management Committee of the Partners (as constituted\n        pursuant to Section 2.1 hereof), by vote of a majority of its members,\n        shall slate six Partners for election of three of them to a 'CEO\n        Nominating Committee,' to consist of three Partners;\n\n          (b)   The Partners shall vote on the six nominees, and the three\n        receiving the highest number of votes shall constitute the CEO\n        Nominating Committee;\n\n          (c)   The CEO Nominating Committee, by vote of a majority of its\n        members, shall select a Partner as its nominee (who may, if said\n        committee so desires, be the incumbent CEO) and shall propose such\n        nominee to the Partners;\n        \n          (d)   The Partners, by the affirmative vote of a simple majority of\n        the Partners, may approve the nominee who shall thereby become the\n        holder of the proxy granted under the Voting Agreement; however, if they\n        shall fail to approve the nominee, the entire procedure set forth in\n        this Section 1.1 shall be repeated, beginning with the slating and\n        election of a new CEO Nominating Committee;\n\n          (e)   The nominee shall be submitted to the Board of Directors of the\n        Company (the 'Board of Directors'), which shall vote on his or her\n        election as CEO. The Board of Directors shall only consider nominations\n        for CEO pursuant to the procedures provided in this Section 1.1. It is\n        intended and understood that each person selected under the foregoing\n        procedures to be the successor CEO shall become the successor holder of\n        the \n\n \n        proxy granted under the Voting Agreement; and\n\n             (f)   The CEO of the Company, and each successor CEO, shall also be\n        submitted to the Board of Directors of each Affiliate (as defined in\n        this Section), which shall vote on his or her election as CEO of the\n        Affiliate (or such other position of comparable authority). The CEO of\n        each Affiliate shall be deemed to have resigned from that position upon\n        his or her resignation or removal as the CEO of the Company. For\n        purposes of this Agreement, the term 'Affiliate' shall mean any\n        affiliate, subsidiary, or parent of, or any other entity controlling,\n        controlled by, or under common control of, the Company.\n\n        1.2. Removal of CEO.\n             -------------- \n \n             Notwithstanding the foregoing, the present CEO shall be subject to\nremoval by the Board of Directors from said position at any time after the\neffective date (the 'IPO Date') of the registration statement filed under the\nSecurities Act of 1933 (as amended), in connection with the first public\noffering of securities of the Company, and each subsequent CEO shall be subject\nto removal at any time -- i.e., shall be required to resign as CEO and to assign\nthe proxy to a successor pursuant to the Voting Agreement, who shall be selected\nin accordance with Section 1.1 hereof -- in the event that either of the\nfollowing shall occur:\n\n               (a)   if the Management Compensation Committee (as constituted\n        pursuant to Article II hereof) shall have sent to the Partners a\n        proposal to initiate the CEO nominating process, and the proposal is\n        approved by the affirmative vote of two-thirds (2\/3) of the total number\n        of Partners; or\n\n               (b)   if an annual compensation plan, as presented to the\n        Partners pursuant to Article III hereof, is not approved by at least\n        seventy percent (70%) of the Partners, pursuant to Section 3.6.\n\n1.3.    Retention of Present CEO.\n        ------------------------ \n\n        Each Partner hereby promises and agrees that, subject to the provisions\nof the Voting Agreement relating to the CEO ceasing to hold office, the present\nCEO shall continue to hold such office until the sixth (6th) anniversary date of\nthe IPO Date. Accordingly, each Partner elected to the Board of Directors shall\nvote to elect and retain the present CEO in such position until the IPO Date.\nFurther, each Partner elected to the Board of Directors of any Affiliate shall\nalso vote to elect and retain the present CEO as the CEO (or such other position\nof comparable authority) of the Affiliate until the IPO Date.\n\n                                  ARTICLE II\n                                  ----------\n\n                              COMMITTEE STRUCTURE\n                              -------------------\n\n     2.1. Management Committee.\n          -------------------- \n \n\n \n          There shall be a 'Management Committee,' consisting of the CEO and\nPartners appointed to the Management Committee by the CEO (each of whom shall be\nappointed for an indefinite term and who may be removed from such position at\nany time by the CEO). The Management Committee is a committee of the Partners\nand may take any action within its authority for the Company and any of the\nAffiliates.\n \n  2.2.  Management Compensation Committee and Nominating Committee.\n        ---------------------------------------------------------- \n \n          In addition to the CEO Nominating Committee and the Management\nCommittee, there shall be a 'Management Compensation Committee' and a\n'Nominating Committee,' each consisting of three Partners.  For each position to\nbe filled on one of such committees, the Management Committee shall nominate\nthree candidates; the Partners shall vote on the three nominees, and the Partner\nreceiving the highest number of votes shall be deemed elected to the committee.\nMembers of each of these committees shall be elected for staggered terms of\nthree years each, with one member elected each year (except for the three\ninitial members of the committee, who shall be elected for terms of one, two,\nand three years, respectively, with the Partner receiving the most votes deemed\nelected to the longest term). No Partner may serve consecutive terms on either\nof these committees, no Partner may serve simultaneously on both committees, and\nthe CEO may not serve on either committee.  Each committee can have, at most,\none member of the Management Committee as a member of the committee.  In case of\ntie votes, or of the death of a Partner or the inability of a Partner to\ncontinue to serve or his or her resignation from a committee or the Company, the\nCEO shall break the tie or specify the replacement for such Partner.\n\n     2.3. Duties of Nominating Committee.\n          ------------------------------ \n \n          (a)   The Nominating Committee's objectives are to screen thoroughly\nall new Partner candidates for the Company and any Affiliates, and to present\nthose it deems appropriate to the Partners for a vote of admittance. The\nNominating Committee will work within the guidelines presented by the Management\nCommittee regarding the need for and limitations to the number of new Partners.\n\n  (b)   A new Partner will be admitted when he or she has the endorsement of the\nNominating Committee and the affirmative vote of eighty percent (80%) of the\nPartners, at which time he or she shall be submitted for election by the Board\nof Directors as an officer of the Company or the Affiliate employing such\nPartner, as the case may be; provided, however, that no person shall be deemed\nto have become a 'Partner' for purposes of this Agreement until such person\nshall have executed a written agreement in which he or she agrees to be subject\nto all of the provisions hereof and to accept, assume and perform all of the\nduties and obligations of a Partner hereunder.\n\n     2.4. Duties of Management Committee.\n          ------------------------------ \n \n          (a)   The Management Committee will review all new proposals, new\nwork,\n\n \nnew contracts and proposed new client relationships for the Company and any\nAffiliates.  The Management Committee shall have the sole authority to accept\nnew work and make all decisions regarding staffing. Additionally, no new client\nrelationships will be initiated without approval of the Management Committee and\nthe assignment of a client director.\n\n  (b)     On an annual basis, the Management Committee will be responsible for\nthe preparation of a strategic update and an operating plan for each of the\nCompany and any of the Affiliates, as necessary. These documents will be\npresented at a full Partners' meeting for discussion and comment. They will then\nbe presented to the Board of Directors of the Company for approval.\n\n     2.5. Other Duties.\n          ------------ \n \n          (a)   Any Partner may be removed from his or her position as a Partner\nand have his or her employment relationship with the Company and\/or an Affiliate\nterminated, at any time and without any reason or cause or the need to assert or\ndemonstrate any reason or cause, if the CEO shall recommend such removal and\ntermination and if the recommendation shall be approved by the affirmative vote\nof at least two-thirds (2\/3) of the members of the Management Compensation\nCommittee and by all of the members (other than such Partner, if a member) of\nthe Management Committee.\n \n          (b)   The functions of the Management Compensation Committee, and\nrelated functions of the other committees, are set forth in Article III, below.\n\n                                  ARTICLE III\n\n                           ANNUAL COMPENSATION PLAN\n                           ------------------------\n\n     3.1. Aggregate Compensation.\n          ---------------------- \n \n          At the beginning of the last quarter of each fiscal year, the CEO and\nthe Management Committee shall commence deliberations and determine\nrecommendations concerning the aggregate amount of bonuses (if any) and the\naggregate number of stock options (if any) to be granted to all employees, based\non their performance during said fiscal year, and the aggregate amount of base\ncompensation to be payable to all employees for the coming fiscal year.  The CEO\nand the Management Committee shall send the recommendations to the Board of\nDirectors of  the Company and each of the Affiliates (as applicable).\n\n     3.2. Board of Directors Approval.\n          --------------------------- \n \n          The Board of Directors of the Company and each of the Affiliates (as\napplicable), after receiving such recommendation, shall make a decision\nregarding these aggregate amounts.  If such Boards of Directors (or their\nrespective Compensation Committee) shall have approved the recommendation, it\nshall be sent to the Management Committee; if it shall not approve the\nrecommendation, the matter shall be referred back to the CEO and the Management\nCommittee, \n\n \nand the entire procedure shall re-commence.\n\n     3.3. Allocations to Partners.\n          ----------------------- \n \n          (a)   The Management Committee, after the Board of Directors has\napproved the aggregate recommendations, shall recommend specific allocations to\nindividual Partners of the aggregate amounts of bonuses, options and base\ncompensation set forth in the recommendations, and shall refer the matter to the\nManagement Compensation Committee.\n\n  (b)   The Management Compensation Committee, after receiving the\nrecommendations, shall make a decision thereon:\n\n             (i)        If it approves the recommendations, it shall submit the\n     recommendations to the Partners for approval; or\n\n             (ii)       If it shall not approve the recommendations, it shall\n     refer the matter back to the Management Committee.\n\n     3.4. Approval by Partners.\n          -------------------- \n \n          If, after receiving the recommendations, at least seventy percent\n(70%) of the Partners shall approve them, the recommendations shall be referred\nto the Board of Directors of the Company and the Affiliates (as applicable) for\nfinal approval; if fewer than seventy (70%) of the Partners shall approve the\nrecommendations, the matter shall be referred back to the CEO and the Management\nCommittee (under Section 3.1 of this Agreement) and, subject, in the case of\nrecommendations made after the IPO Date, to the implementation of the removal\nprocedures set forth in Section 1.2 hereof, the entire process of this Article\nIII shall be repeated until concluded.\n\n     3.5. Implementation.\n          -------------- \n \n          The recommendations shall be implemented if approved by the Board of\nDirectors of the Company and each of the Affiliates (as applicable).  The\nrecommendations shall apply to the Company and each of the Affiliates (as\napplicable).\n\n                                  ARTICLE IV\n                                  ----------\n\nPARTNERS' COMPENSATION PROGRAM\n- ------------------------------\n\n4.1. Adoption of Program.\n     ------------------- \n\n  The Partners' hereby adopt the compensation program (the 'Program'),\nsubstantially in the form attached as Exhibit A hereto, and shall hold all\nshares of common stock, no par value, of the Company (including all shares of\ncommon stock, no par value, of Company owned by such Partner, and any other\nshares of stock or other voting securities, of any class or series, of Company,\nof any Affiliate, or of any entity into or with which Company or any Affiliate\nmay be \n\n \nmerged or consolidated, that the Partner may hereafter acquire by any means from\nCompany, any Affiliate or from any other person or entity, including shares\nissued as stock dividends or pursuant to any recapitalization or reorganization,\nand shares issued in exchange for such shares in any merger, consolidation,\nreorganization, or transfer or exchange of assets, of Company or any Affiliate,\nand any options, warrants, or other rights to acquire any such common stock;\ncollectively, the 'Common Stock') subject to the terms of the Program.\n\n4.2. Amendment.\n     --------- \n\n  Except as may be provided in the Program, the Program may be amended from time\nto time by recommendation of the Management Committee and the Management\nCompensation Committee to the Board of Directors and by action of the Board of\nDirectors, subject to approval of a majority of all of the Partners.  All of the\nPartners agree to be bound by the terms of any amendments to the Program\napproved according to the foregoing procedures.\n\n                                   ARTICLE V\n                                   ---------\n\nDEFERRED COMPENSATION PLAN\n- --------------------------\n\n     The Deferred Compensation Plan that was instituted for certain Partners\npursuant to the Prior Partners' Operating Agreement is hereby terminated in all\nrespects.  The Deferred Credits (as defined under the Prior Partners' Operating\nAgreement) accrued for the benefit of each Partner who joined the Company (or\nany Affiliate) prior to February 28, 1995, plus an amount equal to interest on\nthe undistributed portion thereof, compounded annually, at a rate equal to the\nfloating 'prime rate' as announced from time to time by American National Bank\nand Trust Company of Chicago (and adjusted for changes at the time of each\nannounced change in such rate), shall be payable by the Company to such Partner\npursuant to the recommendations of the Management Committee to the Board of\nDirectors and by action of the Board of Directors.\n\nARTICLE VI\n- ----------\n\n                                 MISCELLANEOUS\n                                 -------------\n\n     5.1. Stock Issuances to Employees.\n          ---------------------------- \n \n          The Company promises and agrees not to grant, issue or sell any shares\nof the Common Stock:\n\n                (a)     to any person seeking to become a Partner until such\nperson shall have adopted this Agreement as if he or she was an original party\nhereto; and\n\n                (b)     to any person who is an employee of the Company\n(including any person seeking to become a Partner), or as an inducement to a\nperson to become an employee of the Company, until such person shall have\nadopted the Voting Agreement as if he or she was an original party thereto.\n \n\n \n5.2. Affiliates.\n     ---------- \n\n     The Partners and the Company agree to use their best efforts to cause each\nAffiliate of the Company, now or hereafter existing, to adopt this Agreement as\nif such entity was an original party hereto.\n\n     5.3. Termination.\n          ----------- \n \n  This Agreement shall terminate upon the dissolution of the Company or at such\nearlier time as only one Partner owns Common Stock.\n\n     5.4. Amendment.\n          --------- \n \n          This Agreement may be amended in any manner by a written instrument\nduly executed by the Company and all of the Partners.\n\n     5.5. Successors and Assigns.\n          ---------------------- \n \n          All of the terms, provisions and conditions of this Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective\nheirs, administrators, executors, successors and assigns.\n\n     5.6. Severability.\n          ------------ \n \n          If any portion or provision of this Agreement shall be held to be\ninvalid or unenforceable for any reason, the remaining provisions hereof shall\nnevertheless be deemed valid, enforceable and carried into effect, unless the\neffect thereof would clearly violate the manifest present intention of the\nparties hereto.\n\n     5.7. Governing Law.\n          ------------- \n \n          This Agreement shall be subject to and governed by the laws of the\nState of Illinois irrespective of the fact that any of the parties hereto may be\nor become a resident of a different state.\n\n                           [SIGNATURE PAGE FOLLOWS]\n\n \n          IN WITNESS WHEREOF, the parties have caused this Amended and Restated\nPartners Operating Agreement to be executed as of the date first written above.\n\nDIAMOND TECHNOLOGY\nPARTNERS, INC.\n\nBy:\n   ----------------------------------\nTitle:\n      -------------------------------\n\nPARTNERS:\n\n\/s\/ Anthony L. Abbattista\n- ------------------------------------ \nAnthony L. Abbattista\n\n\/s\/ Melvyn E. Bergstein\n- ------------------------------------ \nMelvyn E. Bergstein\n\n\/s\/ Laura M. Bestor\n- ------------------------------------ \nLaura M. Bestor\n\n\/s\/ Karl E. Bupp\n- ------------------------------------ \nKarl E. Bupp\n\n\/s\/ Michael J. Connolly\n- ------------------------------------ \nMichael J. Connolly\n\n\/s\/ Craig D. Elderkin\n- ------------------------------------ \nCraig D. Elderkin\n\n\/s\/ Elwood G. Forsythe\n- ------------------------------------ \nElwood G. Forsythe\n\n\/s\/ Adam J. Gutstein\n- ------------------------------------ \nAdam J. Gutstein\n\n\/s\/ Carl J. Hugener\n- ------------------------------------\nCarl J. Hugener\n\n\/s\/ Jay R. Kingley\n- ------------------------------------ \nJay R. Kingley\n\n\/s\/ Chapman H. Kistler\n- ------------------------------------ \nChapman H. Kistler\n\n \n\n\n\n\/s\/ Alan A. Matsumura\n- -------------------------------- \nAlan A. Matsumura\n\n\/s\/ James V. McGee\n- -------------------------------- \nJames V. McGee\n\n\/s\/ Michael E. Mikolajczyk\n- -------------------------------- \nMichael E. Mikolajczyk\n\n\/s\/ Christopher J. Moffitt\n- -------------------------------- \nChristopher J. Moffitt\n\n\/s\/ James W. Niland\n- -------------------------------- \nJames W. Niland\n\n\/s\/ Michael J. Palmer\n- -------------------------------- \nMichael J. Palmer\n\n\/s\/ Bruce R. Quade\n- -------------------------------- \nBruce R. Quade\n\n\/s\/ David M. Rappaport\n- -------------------------------- \nDavid M. Rappaport\n\n\/s\/ Mark E. Siefertson\n- -------------------------------- \nMark E. Siefertson\n\n\/s\/ Kirk E. Siefkas\n- -------------------------------- \nKirk E. Siefkas\n\n\/s\/ Martha J. Silva\n- -------------------------------- \nMartha J. Silva\n\n\/s\/ James C. Spira\n- -------------------------------- \nJames C. Spira\n\n\/s\/ Ronald V. Coughlin\n- -------------------------------- \nRonald V. Coughlin\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7316],"corporate_contracts_industries":[9505],"corporate_contracts_types":[9573,9577],"class_list":["post-41660","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-diamondcluster-international-inc","corporate_contracts_industries-services__management","corporate_contracts_types-formation","corporate_contracts_types-formation__partner"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41660","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41660"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41660"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41660"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41660"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}