As filed with the Securities and Exchange Commission on April 21, 1998
Registration No. 33-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------
COMPLETE MANAGEMENT, INC.
(Exact Name of Registrant as Specified in Its Charter)
New York 8742 11-3149119
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Classification Code Number) Identification
Organization) Number)
254 West 31st Street
New York, NY 10001
(212) 273-0600
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
-----------------------------
Complete Management, Inc.
Employee Stock Purchase Plan
Steven M. Rabinovici
Chairman and Chief Executive Officer
Complete Management, Inc.
254 West 31st Street
New York, NY 10001
(212) 273-0600
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent for Service)
-------------------------------
with a copy to:
Stephen A. Zelnick, Esq.
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue, Suite 902
New York, New York 110022
(212) 838-1177
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Amount to Maximum
be Proposed Maximum Aggregate Amount of
Title of Securities Registered Offering Price Offering Registration
to be Registered (1) Per Share(1) Price(1) Fee
---------------- --- ------------ -------- ---
<S> <C> <C> <C> <C>
Common Shares (par value
$.001 per share) issuable
pursuant to the Complete
Management, Inc. Employee
Stock Purchase Plan.(2) 1,000,000 $7.9375 $10,750,000 $754.06
</TABLE>
(1) Estimated in accordance with rule 457(c) and (h), the proposed maximum
offering price per share, proposed maximum aggregate offering price and the
amount of the registration fee are based upon the average of the high and
low prices reported on the New York Stock Exchange on February 23, 1998,
with respect to Shares available for purchase under the Employee Stock
Purchase Plan (the "Plan").
(2) This registration statement also covers such indeterminate number of
interests as may be offered under the Plan.
<PAGE>
COMPLETE MANAGEMENT, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Rule 428(b)(i) of the Securities Act of 1933, as amended (the
"Securities Act"). Such documents need not be filed with the Securities and
Exchange Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents, which include the statement of availability required by
Item 2 of Form S-8, and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
<PAGE>
COMPLETE MANAGEMENT, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference, except as superseded or
modified herein:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
2. The description of the Company's Common Shares, contained in the
Company's Registration Statement on Form 8-A (Registration No.
0-27260) registering such shares pursuant to Section 12 of the
Exchange Act including any amendment or report updating such
description.
3. The Company's Proxy Statements for its 1997 Annual Meeting of
Shareholders dated July 16, 1997 and its Special Meeting of
Shareholders dated September 30, 1997
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the termination of the offering of Common Shares shall be deemed to be
incorporated in and made a part of this Prospectus by reference from the date of
filing such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that is also incorporated
by reference herein modifies or replaces such statement. Any statements so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Upon oral or written request, the Company will provide without charge a
copy of any document incorporated in this Prospectus by reference, exclusive of
exhibits (unless such exhibits are specifically incorporated by reference into
such documents), to each person, including any beneficial owner, to whom this
Prospectus is delivered. Requests for such documents should be directed to
Complete Management, Inc., 254 West 31st Street, New York New York 10001,
Attention: Corporate Secretary, telephone (212) 273-0600
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Legal matters in connection with the issuance of Common Shares offered
hereby have been passed upon for the Company by Morse, Zelnick, Rose & Lander,
LLP. Members of the firm beneficially own an aggregate of 67,528 Common Shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 722 and 723 of the New York Business Corporation Law grant to the
Company the power to indemnify the officers and directors of the Company as
follows:
(a) A corporation may indemnify any person made, or threatened to be made,
a party to an action or proceeding other than one by or in the right of the
corporation to procure a judgment in its favor, whether civil or criminal,
including an action by or in the right of any other corporation of any type of
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of the
corporation served in any capacity at the request of the corporation, by reason
of the fact that he, his testator or intestate, was a director or officer of the
corporation, or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests of
the corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful.
(b) The termination of any such civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not in itself create a presumption that any such director or
officer did not act, in good faith, for a purpose which he reasonably believed
to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation or that he had reasonable
cause to believe that his conduct was unlawful.
(c) A corporation may indemnify any person made, or threatened to be made,
a party to an action by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he, his testator or intestate, is or was
a director or officer of the corporation, or is or was serving at the request of
the corporation as a director or officer of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, against amounts paid in settlement and
reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense or settlement of such action, or
in connection with an appeal therein if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interest of
the corporation, except that no indemnification under this paragraph shall be
made in respect of (1) a threatened action, or a pending action which is settled
or otherwise disposed of, or (2) any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation, unless and only
to the extent that the court on which the action was brought, or, if no action
was brought, any court of competent jurisdiction, determines upon application
that, in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
(d) For the purpose of this section, a corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or
II-2
<PAGE>
participants or beneficiaries of the plan; excise taxes assessed on a person
with respect to an employee benefit plan pursuant to applicable law shall be
considered fines; and action taken or omitted by a person with respect to an
employee benefit plan in the performance of such person's duties for a purpose
reasonably believed by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the corporation.
Payment of indemnification other than by court award is as follows:
(a) A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in section 722 shall be entitled to indemnification as authorized in such
section.
(b) Except as provided in paragraph (a), any indemnification under section
722 or otherwise permitted by section 721, unless ordered by a court under
section 724 (Indemnification of directors and officers by a court), shall be
made by the corporation, only if authorized in the specific case:
(1) By the board acting by a quorum consisting of directors who are
not parties to such action or proceeding upon a finding that the director or
officer has met the standard of conduct set forth in section 722 or established
pursuant to section 721, as the case may be; or
(2) If a quorum under subparagraph (1) is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs:
(A) By the board upon the opinion in writing of independent
legal counsel that indemnification is proper in the circumstances because the
applicable standard of conduct set forth in such sections has been met by such
director or officer; or
(B) By the shareholders upon a finding that the director or
officer has met the applicable standard of conduct set forth in such sections.
(C) Expenses incurred in defending a civil or criminal action
or proceeding may be paid by the corporation in advance of the final disposition
of such action or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amounts as, and to the extent, required
by paragraph (a) of section 725.
The Company's certificate of incorporation provides as follows:
SIXTH: The personal liability of directors to the corporation or its
shareholders for damages for any breach of duty in such capacity is hereby
eliminated except that such personal liability shall not be eliminated if a
judgment or other final adjudication adverse to such director establishes that
his acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he personally gained in fact a financial profit
or other advantage to which he was not legally entitled or that his acts
violated Section 719 of the Business Corporation Law.
EIGHTH: (a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a
II-3
<PAGE>
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Business Corporation
Law, as the same exists or may hereafter be amended (but, in case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment), against all expense, liability and loss
(including attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in paragraph (b) hereof, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section shall be
a contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Business Corporation Law requires,
the payment of such expenses incurred by a director or officer (in his or her
capacity as a director or officer and not in any other capacity in which service
was or is rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Section is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has no met the standards of conduct which make it
permissible under the Business Corporation Law for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its Shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the Business Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its Shareholders) that the claimant has
not met such applicable standard or conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, by-law, agreement, vote of Shareholders or
disinterested directors or otherwise.
(d) Insurance. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Company would
have the power to indemnify such person against such expense, liability or loss
under the Business Corporation Law.
II-4
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. INDEX TO EXHIBITS
The following Exhibits are filed as part of this Registration Statement.
Exhibit No. Description
----------- -----------
4.1 Certificate of Incorporation of the Registrant (*)
4.2 Certificate of Amendment to Certificate of Incorporation
filed on December 1, 1995(*)
4.3 Certificate of Amendment to Certificate of
Incorporation dated October 14, 1997(**)
4.4 Stock Purchase Plan of Registrant
5.1 Opinion of Morse, Zelnick, Rose & Lander, LLP regarding
legality of Securities
23.1 Consent of Arthur Andersen, LLP
23.2 Consent of Morse, Zelnick, Rose & Lander, LLP
(included in Exhibit 5.1)
24 Power of Attorney (included on Signature Page)
(*) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 No.33-97894.
(**) Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the period ended September 30, 1997
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant 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 require d 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 the 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 the Registration Statement;
II-5
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
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 with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose 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 initial bona fide
offering thereof.
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 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
offering herein, 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 Registrant pursuant to the provisions described in Item 6
of this Registration Statement, or otherwise, the Registrant 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 Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any section, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant 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.
II-6
<PAGE>
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 New York, State of New York on this 17th day of
April 1998.
COMPLETE MANAGEMENT, INC.
By: /s/ Steven Rabinovici
-------------------------
Steven Rabinovici
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Complete Management, Inc.,
hereby severally constitute and appoint Steven Rabinovici, Arthur L. Goldberg
and Stephen A. Zelnick, and each of them singly, our true and lawful attorneys
with full power to them, and each of them singly, to sign for us and in our
names in the capacities indicated below the Registration Statement on Form S-8
filed herewith and any and all pre-effective and post-effective amendments to
said Registration Statement, and generally to do all such things in our names
and on our behalf in our capacities as officers and directors to enable Complete
Management, Inc. to comply with the provisions of the Securities Act, and all
requirements of the Commission, hereby ratifying and confirming our signatures,
as they may be signed by our said attorneys or any of them, to said Registration
Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on April 17, 1998 by the following persons in the
capacities indicated.
Signature Title
- --------- -----
/S/Steven Rabinovici Chairman and Chief Executive Officer
- -------------------------------
Steven Rabinovici
/S/Arthur Goldberg Vice Chairman and Chief Financial Officer
- -------------------------------
Arthur L. Goldberg
/S/ Kenneth S. Schwartz, M.D. Director
- -------------------------------
Kenneth S. Schwartz, M.D.
/S/Steven Cohn Director
- -------------------------------
Steven Cohn
/S/Joseph S. Tocci Director
- -------------------------------
Joseph S. Tocci
/S/ Steven Hirsh Director
- -------------------------------
Steven Hirsh
COMPLETE MANAGEMENT, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
COMPLETE MANAGEMENT, INC. EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
ARTICLE 1
PURPOSE
1.1 PURPOSE OF PLAN.......................................... 1
ARTICLE 2
DEFINITIONS
2.1 ACCOUNT.................................................. 1
2.2 BOARD.................................................... 1
2.3 CODE..................................................... 1
2.4 COMPANY.................................................. 1
2.5 COMPENSATION............................................. 1
2.6 EFFECTIVE DATE........................................... 1
2.7 EMPLOYEE................................................. 1
2.8 EMPLOYER................................................. 1
2.9 MINIMUM HOLDING PERIOD................................... 1
2.10 PARTICIPANT.............................................. 1
2.11 PLAN..................................................... 1
2.12 PURCHASE................................................. 2
2.13 PURCHASE PRICE........................................... 2
2.14 SHARES or STOCK.......................................... 2
2.15 SUBSIDIARY/IES........................................... 2
ARTICLE 3
ADMINISTRATION OF THE PLAN
3.1 BY THE COMPANY........................................... 2
ARTICLE 4
EMPLOYEES ELIGIBLE TO PURCHASE STOCK
4.1 ELIGIBILITY.............................................. 2
ARTICLE 5
STOCK
5.1 STOCK MAXIMUM............................................ 2
<PAGE>
ARTICLE 6
PURCHASES; AUTHORIZATION OF PAYROLL DEDUCTIONS BY PARTICIPANTS
6.1 PURCHASES................................................ 3
6.2 PAYROLL DEDUCTIONS....................................... 3
ARTICLE 7
TERMS AND CONDITIONS OF PURCHASES
7.1 TERMS AND CONDITIONS..................................... 3
ARTICLE 8
WITHDRAWALS FROM PARTICIPANT ACCOUNTS
8.1 REVOCATION............................................... 5
8.2 CERTIFICATE REQUESTS; HOLDING PERIOD; DIRECTIONS TO
SELL; TRANSACTIONAL EXPENSES............................. 5
8.3 TERMINATION OF EMPLOYMENT................................ 5
8.4 TERMINATION OF EMPLOYMENT DUE TO DEATH................... 5
ARTICLE 9
RECAPITALIZATION, REORGANIZATION OR CHANGE IN CAPITALIZATION
9.1 COMPANY'S DISCRETION..................................... 6
9.2 CORPORATE TRANSACTIONS................................... 6
ARTICLE 10
AMENDMENT OR TERMINATION OF THE PLAN
10.1 AMENDMENT OR TERMINATION................................. 6
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 NON-TRANSFERABILITY...................................... 6
11.3 TAX WITHHOLDING.......................................... 7
11.4 GOVERNMENT AND OTHER REGULATIONS......................... 7
11.5 INDEMNIFICATION.......................................... 7
11.6 RELIANCE ON REPORTS...................................... 7
11.7 GOVERNING LAW............................................ 7
11.8 RELATIONSHIP TO OTHER BENEFITS........................... 8
11.9 EXPENSES................................................. 8
11.10 TITLES AND HEADINGS...................................... 8
11.11 NON-EXCLUSIVITY OF PLAN.................................. 8
11.12 DESIGNATION OF BENEFICIARY............................... 8
11.13 USE OF FUNDS............................................. 8
11.14 EFFECT OF PLAN........................................... 8
<PAGE>
COMPLETE MANAGEMENT, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE 1
PURPOSE
1.1 PURPOSE OF PLAN. This Employee Stock Purchase Plan is intended to
encourage employees of Complete Management, Inc. (the "Company") and its
subsidiaries to remain in the employ of the Company and to participate in its
growth by permitting them to purchase shares of Company common stock at a price
that is less than fair market value on the date of purchase. Such purchases
shall be made from funds accumulated through payroll deductions. This Plan is
intended to qualify as a "Employee Stock Purchase Plan" within the meaning of
section 423 of the Internal Revenue Code.
ARTICLE 2
DEFINITIONS
2.1 ACCOUNT means the account established for each Participant under the
Plan to hold Shares of Stock and to be credited with cash awaiting investment in
Shares of Stock.
2.2 BOARD means the Board of Directors of the Company.
2.3 CODE means the Internal Revenue Code of 1986, as amended.
2.4 COMPANY means Complete Management, Inc. and its successors.
2.5 COMPENSATION means W-2 wages otherwise, but for an election under this
Plan, payable in cash to the Participant by the Company.
2.6 EFFECTIVE DATE means the first day of the first payroll period
beginning after February 15, 1998.
2.7 EMPLOYEE means any employee of an Employer whose customary employment
is (i) twenty (20) hours per week or more or (ii) at least five (5) months in
any calendar year.
2.8 EMPLOYER means the Company and its Subsidiaries.
2.9 MINIMUM HOLDING PERIOD means the period of time Shares purchased under
the Plan will be held in custody by the Company in a Participant's Account as
specified in Section 8.2.
2.10 PARTICIPANT means any Employee who participates in the Plan as
provided in Article 6. A Participant shall continue to be a Participant as long
as he or she has an Account.
2.11 PLAN means the Complete Management, Inc. Employee Stock Purchase
Plan, as herein set forth, and as amended from time to time.
<PAGE>
2.12 PURCHASE means any purchase of Shares of Stock made in accordance
with the terms and conditions of the Plan.
2.13 PURCHASE PRICE means the price per Share at which Stock may be
purchased under the Plan, which shall be ninety-five percent (95%) of the fair
market value of a Share of Stock as of the date of Purchase, as determined by
the Company in accordance with Section 7.1(a).
2.14 SHARES or STOCK means shares of the common stock, par value $.001 per
share, of the Company.
2.15 SUBSIDIARY/IES means any entity bearing a relationship to the Company
that is described in section 424(f) of the Code and designated as a
participating Employer in the Plan by the Company. All entities bearing such a
relationship as of the Effective Date shall be deemed Subsidiaries hereunder.
ARTICLE 3
ADMINISTRATION OF THE PLAN
3.1 BY THE COMPANY. The Plan shall be administered by the Company, which
shall have full power and authority to: (i) interpret and administer the Plan
and any instrument or agreement entered into under the Plan; (ii) establish such
rules and regulations and appoint such agents as it shall deem appropriate for
the proper administration of the Plan; and (iii) make any other determination
and take any other action that the Company deems necessary or desirable for
administration of the Plan. Decisions of the Company shall be final, conclusive
and binding upon all persons, including any Participant and any other employee
of the Company.
ARTICLE 4
EMPLOYEES ELIGIBLE TO PURCHASE STOCK
4.1 ELIGIBILITY. All Employees who have completed ninety (90) days of
continuous employment with the Employer shall be eligible to Purchase Stock
under the Plan as of the first day of the payroll period commencing after such
ninetieth (90th) day, except for any Employee who, immediately after the
purchase, would own (or would be deemed to own under the rules of section
423(b)(3) of the Code) any class of stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Company or any of its Subsidiaries. If the effect of the purchase of Shares of
Stock by an Employee is such that his or her total stock ownership (as
determined under section 423(b)(3) of the Code) equals or exceeds such five
percent (5%) limitation, such Purchase election shall be entirely void.
ARTICLE 5
STOCK
5.1 STOCK MAXIMUM. The maximum number of Shares of Stock which may be
Purchased under the Plan is one million (1,000,000) Shares, subject, however, to
adjustment as hereinafter provided.
<PAGE>
ARTICLE 6
PURCHASES; AUTHORIZATION OF PAYROLL DEDUCTIONS BY PARTICIPANTS
6.1 PURCHASES. Unless otherwise specified by the Company, there shall be
twenty-four (24) Purchase dates under the Plan during each twelve (12) month
calendar year during which this Plan is in effect and, unless otherwise
specified by the Company, the day of Purchase shall be the last day of the
payroll period of the Participant or as soon thereafter as is practicable for
the Company to effect Purchase elections.
6.2 PAYROLL DEDUCTIONS. Each Employee shall become a Participant pursuant
to the terms of the Plan by filing an election to participate in the Plan in the
form of a payroll deduction authorization (in the manner prescribed by the
Company) within such time as is determined by the Company. The election shall
specify a whole percentage of Compensation which the Employee wishes to apply to
the Purchase for each payroll period until the Employee properly revokes or
changes his or her election, subject to the limitations contained in Sections
4.1 and 7.1(b). Payroll deductions (a) shall commence with the first regular
payroll period after the Company accepts a properly filed Employee payroll
deduction election and (b) shall end on the last day of the last regular payroll
period in which the Employee elects in writing to cease participation, or, if
earlier, on the last day of the last regular payroll period prior to the
termination of the Participant's employment with the Employer. An Employee may
revoke his or her election at any time; however, in such case, the Employee must
wait ninety (90) days after revocation to re-enter the Plan, as if he or she
were a new Employee on the date of any such revocation. If the Participant's
termination of employment or revocation election occurs on or within a time
prior to the last day of the payroll period in which it is not reasonably
practicable for the Company to render ineffective the Participant's Purchase
election existing at the time of the employment termination or revocation and
the Company or its designee implements the Purchase election, the Company will
have the right in its sole and absolute discretion to disregard the Purchase and
instead pay to the Participant the Compensation reduction amount or to treat the
Purchase as having occurred in accordance with the terms of the existing
Purchase election.
ARTICLE 7
TERMS AND CONDITIONS OF PURCHASES
7.1 TERMS AND CONDITIONS. Except as provided in subparagraph (b) of this
Section 7.1, all Participants shall have the same rights and privileges, as
specified below:
(a) Purchase Price: The Purchase Price shall be the average price at
which Stock is purchased under the Plan for all Participants on the exchange on
which the Stock is Purchased, without regard to transactional costs, multiplied
by ninety-five percent (95%).
(b) Accrual Limitation: Notwithstanding any other provision of the
Plan, no Employee may purchase Stock if pursuant to all unexpired offerings
under all existing employee stock purchase plans, as defined in section 423 of
the Code, the right to Purchase would cause such Employee to accrue an annual
right to acquire Stock at a rate which exceeds at any time twenty-five thousand
dollars ($25,000) of the fair market value of the Stock (determined at the time
of each Purchase under this Plan with respect to Shares purchased hereunder and
at the date of grant with respect to option-type employee stock purchase plans).
Only rights to purchase
<PAGE>
Stock that have been granted under an employee stock purchase plan which
complies with section 423 of the Code shall be taken into account for purposes
of this subparagraph (b).
(c) Nontransferability of Plan Participation: Plan participation
shall not be transferable by the Participant other than by will or the laws of
descent and distribution during the Participant's lifetime, and Purchases may be
made hereunder only on behalf of the Participant.
(d) Purchases: Purchases of Shares by any Participant shall be made
with funds accumulated in the Participant's Account through payroll deductions
from the Participant's Compensation, under rules of uniform application. Cash
remaining in a Participant's Account representing fractional Shares shall be
accumulated and added to the next payroll period elective amounts and used in
such next payroll period to Purchase Stock if the Participant is, at the end of
the next payroll period, employed as an Employee and has not revoked his or her
Purchase election or, if he or she is not then an Employee or has timely revoked
his or her Purchase election, the amount shall be paid to the Participant in
cash as soon as practicable following the date he or she ceases to be an
Employee.
(e) Other Provisions: Each Purchase may contain such other
provisions as the Company shall deem advisable, including restrictions on resale
of Stock, provided that no such provisions may in any way conflict, or be
inconsistent with, the terms of the Plan as amended from time to time.
(f) Requirements of Law: The issuance of any Stock hereunder is
conditioned upon registration of the Stock to be issued under applicable federal
and state securities laws and its listing on any applicable stock exchange. In
no event shall any stock be issued hereunder prior to the effective date of any
such registration or listing application.
(g) Issuance of Shares: The Shares of Stock purchased by each
Participant shall be issued in the name of the Participant and shall be
considered to be issued and outstanding to his or her credit as of the close of
business on the day of each Purchase. Shares Purchased by each Participant shall
be credited to that individual's Account as soon as practicable after each
Purchase.
(h) Account Balances: No interest shall accrue at any time on any
amount credited to the Account of a Participant. After the close of each month,
a report shall be sent to each Participant stating the entries made to his or
her Account, the number of Shares purchased and the applicable Purchase Price.
(i) Minimum Holding Period: A Participant will possess all the
rights and privileges of a stockholder with respect to all of the Shares held in
his or her Account under the Plan, including the right to vote such Shares, and
will receive all dividends, distributions and stockholder communications with
respect to such Shares. However, except as provided in Section 8.2, Shares shall
remain in the Account until the expiration of the Minimum Holding Period with
respect to such Shares, as determined by the Company.
<PAGE>
ARTICLE 8
WITHDRAWALS FROM PARTICIPANT ACCOUNTS
8.1 REVOCATION. Except for any officer of the Company who is subject to
the reporting requirements of section 16(a) of the Securities Exchange Act of
1934, as amended (an "Insider"), Participants may cease participation in the
Plan at any time and withdraw all cash amounts in their Accounts. Such
withdrawal shall serve to cancel the Participant's Plan participation. Partial
cash withdrawals shall not be permitted. Cash withdrawal requests shall be made
in such form and under such conditions as may be specified from time to time by
the Company. Insiders may not make cash withdrawals for so long as they remain
Insiders.
8.2 CERTIFICATE REQUESTS; HOLDING PERIOD; DIRECTIONS TO SELL;
TRANSACTIONAL EXPENSES. A Participant may request, once in each calendar year,
delivery of a stock certificate representing all or any portion of the Shares
(in any whole number of Shares) held in his or her Account for at least the
Minimum Holding Period. Unless otherwise specified by the Company, the Minimum
Holding Period with respect to Shares purchased under the Plan shall be two (2)
years from the date of Purchase of the particular Shares. A Participant shall be
entitled to direct the Company to sell on the Participant's behalf any or all
Shares in the Participant's Account at any time, including during the Minimum
Holding Period, and the Company shall honor such requests, subject to reasonable
restrictions on frequency of such sale directions as might be imposed by the
Company. In honoring directions to sell, the Company may, at its discretion,
exchange Shares of those Participants who direct sales with those Participants
who direct Purchases utilizing for such purpose the Purchase Price established
under Section 7.1(a). All transactional expenses in respect of sales of Shares
held by the Company under the Plan shall be borne by the Company. The Company
shall be entitled, in its discretion, to distribute any Shares held under the
Plan to a Participant at any time, whether before or after the Minimum Holding
Period. Any Share which has been distributed by the Company to a Participant or
former Participant or to any individual on behalf of a Participant or former
Participant shall terminate any such Share's coverage under this Plan for all
purposes, including, but not limited to, the Company's payment of any
transactional expenses with respect to any disposition of such Shares.
8.3 TERMINATION OF EMPLOYMENT. Upon termination of a Participant's
employment with the Employer for any reason, whether voluntary or involuntary,
the Participant's participation in the Plan shall immediately terminate. Subject
to Section 6.2, as soon thereafter as is practicable, the Participant shall
receive the following: (i) a Stock certificate for all whole Shares held in the
Account for at least the Minimum Holding Period; and (ii) cash representing any
fractional Shares in the Account. Any Shares held for less than the Minimum
Holding Period shall remain in the Account for the remainder of any such Holding
Period(s) or until the former Participant's death or until a sale of such Shares
is directed by the former Participant and, at the Company's discretion as to the
frequency and timing of distributions, certificates for such Shares shall be
issued to the former Participant or his or her death beneficiary, as defined in
Section 11.13, as applicable, at the conclusion of the Minimum Holding Period
applicable to such Shares.
8.4 TERMINATION OF EMPLOYMENT DUE TO DEATH. Upon termination of the
Participant's employment because of his or her death, the Participant's
beneficiary, as
<PAGE>
defined in Section 11.13, shall receive all the payroll deductions credited to
the Participant's Account as of the date of death and all Stock in the
Participant's Account on the date of death.
ARTICLE 9
RECAPITALIZATION, REORGANIZATION OR CHANGE IN CAPITALIZATION
9.1 COMPANY'S DISCRETION. The Plan shall not affect in any way the
Company's right or power to make adjustments, reclassifications,
reorganizations, or changes of its capital or business or to merge, consolidate,
dissolve, liquidate, sell or transfer all or any part of its business or assets.
The Company shall have the discretion to adjust the number of Shares available
hereunder to reflect stock splits, stock dividends, mergers and other changes in
the capitalization of the Company.
9.2 CORPORATE TRANSACTIONS. Upon the dissolution or liquidation of the
Company, or upon a reorganization, merger or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation, or upon a sale of substantially all of the property or stock of the
Company to another corporation, each Participant shall receive with respect to
each Share held in his or her Account, as nearly as reasonably may be
determined, the cash, securities and/or property which a holder of one Share of
Stock was entitled to receive upon and at the time of such transaction. The
Company shall take such steps in connection with such transactions as the
Company shall deem necessary to assure that the provisions of this Section shall
thereafter be applicable, as nearly as reasonably may be determined, in relation
to the said cash, securities and/or property as to which such Participant might
thereafter be entitled to receive.
ARTICLE 10
AMENDMENT OR TERMINATION OF THE PLAN
10.1 AMENDMENT OR TERMINATION. The Board may suspend or terminate the
Plan, reconstitute the Plan in whole or in part, or amend or revise the Plan in
any respect whatsoever, except that (a) no amendment shall cause the Plan to
fail to qualify as an "employee stock purchase plan" as defined in Section 423
of the Code and (b) without approval of the stockholders, no amendment shall
increase the number of Shares which may be sold under the Plan or make any
change in the Employees or class of Employees eligible to participate in the
Plan.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 NON-TRANSFERABILITY. Except by the laws of descent and distribution,
no benefit provided hereunder shall be subject to alienation, assignment or
transfer by a Participant (or by any person entitled to such benefit pursuant to
the terms of this Plan), nor shall it be subject to attachment or other legal
process of whatever nature, and any attempted alienation, assignment, attachment
or transfer shall be void and of no effect whatsoever and, upon any such
attempt, the benefit shall terminate and be of no force or effect. During a
Participant's lifetime, Purchases may be made only by the Participant. Shares
shall be delivered only into the hands of the Participant or death beneficiary
entitled to receive the same or into the hands of the Participant's authorized
legal representative.
<PAGE>
11.2 NO EMPLOYMENT RIGHT. Neither this Plan nor any action taken hereunder
shall be construed as giving any right to any individual to be retained as an
officer or employee of the Company.
11.3 TAX WITHHOLDING. The Company shall have the right to deduct from all
payments hereunder any federal, state, local or employment taxes which it deems
are required by law to be withheld with respect to such payments.
11.4 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company to
deliver Shares or make cash payments hereunder shall be subject to all
applicable laws, rules and regulations, and to such approvals by any government
agencies as may be deemed necessary or appropriate by the Company. If Shares
deliverable hereunder may in certain circumstances be exempt from registration
under the Securities Act of 1933, the Company may restrict its transfer in such
manner as it deems advisable to ensure such exempt status. The Plan is intended
to comply with Rule 16b-3 under the Securities Exchange Act of 1934, as amended.
Any provision inconsistent with such Rule shall be inoperative and shall not
affect the validity of the Plan. The Plan shall be subject to any provision
necessary to assure compliance with federal and state securities laws.
11.5 INDEMNIFICATION. Each person who is or at any time serves as a member
of the Board or as an officer of the Company acting for the Company in respect
of the Plan shall be indemnified and held harmless by the Company against and
from (i) any loss, cost, liability or expense that may be imposed upon or
reasonably incurred by such person in connection with or resulting from any
claim, action, suit or proceeding to which such person may be a party or in
which such person may be involved by reason of any action or failure to act
under this Plan; and (ii) any and all amounts paid by such person in
satisfaction of judgment in any such action, suit or proceeding relating to this
Plan. Each person covered by this indemnification shall give the Company an
opportunity, at its own expense, to handle and defend the same before such
person undertakes to handle and defend the same on such person's own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the charter or
by-laws of the Company, as a matter of law, or otherwise, or any power that the
Company may have to indemnify such person or hold such person harmless.
11.6 RELIANCE ON REPORTS. Each member of the Board and each officer of the
Company acting for the Company in respect of the Plan shall be fully justified
in relying or acting in good faith upon any report made by the independent
public accountants of the Company, and upon any other information furnished in
connection with this Plan. In no event shall any person who is or shall have
been a member of the Board or an officer of the Company acting for the Company
in respect of the Plan be liable for any determination made or other action
taken or any omission to act in reliance upon any such report or information, or
for any action taken, including the furnishing of information, or failure to
act, if in good faith.
11.7 GOVERNING LAW. All matters relating to this Plan shall be governed by
the laws of the State of New York, without regard to the principles of conflict
of laws thereof, except to the extent preempted by the laws of the United
States.
<PAGE>
11.8 RELATIONSHIP TO OTHER BENEFITS. No payment under this Plan shall be
taken into account in determining any benefits under any pension, retirement,
profit sharing or group insurance plan of the Company.
11.9 EXPENSES. The expenses of implementing and administering this Plan
shall be borne by the Company.
11.10 TITLES AND HEADINGS. The titles and headings of the Articles and
Sections in this Plan are for convenience of reference only, and in the event of
any conflict, the text of this Plan, rather than such titles or headings, shall
control.
11.11 NON-EXCLUSIVITY OF PLAN. Neither the adoption of the Plan by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or only
in specific cases.
11.12 DESIGNATION OF BENEFICIARY. A Participant may file a written
designation of a beneficiary who is to receive any Stock and/or cash. Such
designation of a beneficiary may be changed by the Participant at any time. Upon
the death of a Participant, the Company shall deliver such Stock and/or cash to
such beneficiary. In the event of the death of a Participant and in the absence
of a beneficiary validly designated under the Plan, the Company shall deliver
such Stock and/or cash to the executor or administrator of the estate, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such Stock and/or cash to
the spouse or to any one or more dependents of the Participant as the Company
may designate. No beneficiary shall, prior to the death of the Participant by
whom he or she has been designated, acquire any interest in the Stock or cash
credited to the Participant under the Plan.
11.13 USE OF FUNDS. All payroll deductions received or held by the Company
under this Plan may be used by the Company for any corporate purpose and the
Company shall not be obligated to segregate such payroll deductions.
11.14 EFFECT OF PLAN. The provisions of the Plan shall, in accordance with
its terms, be binding upon, and inure to the benefit of, all successors of each
Employee participating in the Plan, including, without limitation, such
Employee's estate and executors, administrators or trustees, heirs and legatees,
and any receiver, trustee in bankruptcy or representative of creditors of such
Employee.
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022
(212) 838-1177
April 17, 1998
EXHIBIT 5.1
Complete Management, Inc.
254 West 31st Street
New York, New York 10001
Re: Complete Management, Inc.
Employee Stock Purchase Plan (the "Plan")
Gentlemen:
We have acted as counsel to Complete Management, Inc., a New York corporation
(the "Company") in connection with the preparation of a registration statement
on Form S-8 (the "Registration Statement") to be filed with the Securities
Exchange Commission under the Securities Act of 1933, as amended to register the
offering by the Company of 1,000,000 Common Shares par value $.001 per share
(the "Common Shares") pursuant to the Company's Employee Stock Purchase Plan
(the "Plan").
In this regard, we have reviewed the Certificate of Incorporation of the
Company, as amended, resolutions adopted by the Company's Board of Directors,
the Plan, and such other records, documents, statutes and decisions as we have
deemed relevant in rendering this opinion.
Based upon the foregoing, we are of the opinion that the Common Shares to
be acquired and resold to employees under the Plan have been duly and validly
authorized for issuance and when issued and delivered as contemplated by the
Registration Statement will be legally issued, fully paid and non-assessable.
We consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement. Members of this firm own an aggregate of 67,528 Common
Shares.
Very truly yours,
/s/ Morse, Zelnick, Rose & Lander, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our reports dated March
26, 1998 included (or incorporated by reference) in Complete Management, Inc.'s
Form 10-K for the year ended December 31, 1997 and to all references to our Firm
included in this registration statement on Form S-8.
/S/ ARTHUR ANDERSEN LLP
New York, New York
April 16, 1998
