As filed with the Securities and Exchange Commission on November 19, 1998
Registration No. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
COTELLIGENT, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3173918
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization)_______________________ Identification Number)
101 California Street
Suite 2050
San Francisco, CA 94111
(415) 439-6400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------
COTELLIGENT, INC.
1998 LONG-TERM INCENTIVE PLAN
(Full title of the Plan)
---------------------
James R. Lavelle
Chairman of the Board and Chief Executive Officer
Cotelligent, Inc.
101 California Street, Suite 2050
San Francisco, CA 94111
(415) 439-6400
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
--------------------
Copies to:
David Pollak, Esq. Daniel E. Jackson, Esq.
Morgan, Lewis & Bockius LLP Cotelligent, Inc.
101 Park Avenue 101 California Street, Suite 2050
New York, New York 10178 San Francisco, California 94111
(212) 309-6000 (415) 439-6400
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NY03/67523.2
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE (1)
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Securities to Amount to be Offering Aggregate Offering Registration
be Registered Registered (2) Price Per Share Price Fee(5)
- ------------------------------------------------------------------------------------ -----------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per 5,200 shares $15.9375(3) $ 82,875 $ 23.04
share 6,000 shares $14.125(3) $ 84,750 $ 23.56
1,500 shares $14.375(3) $ 21,563 $ 5.99
4,000 shares $14.875(3) $ 59,500 $ 16.54
500 shares $15.75(3) $ 7,875 $ 2.19
3,000 shares $17.9375(3) $ 53,813 $ 14.96
525,000 shares $12.75(3) $ 6,693,750 $ 1,860.86
37,500 shares $12.50(3) $ 468,750 $ 130.31
11,801 shares $16.25(3) $ 191,766 $ 53.31
56,500 shares $17.50(3) $ 988,750 $ 274.87
8,390 shares $18.25(3) $ 153,118 $ 42.57
1,500 shares $16.625(3) $ 24,938 $ 6.93
1,310,533 shares $18.75(4) $ 24,572,493 $ 6,831.15
==================================================================================== =========================================
Total 1,971,424 shares $ 9,286.28
==================================================================================== =========================================
</TABLE>
(1) This Registration Statement is also deemed, pursuant to Instruction E to
Form S-8, to relate to 689,467 shares previously registered on Form S-8
(File No. 33-3388) in connection with a predecessor plan, with respect to
which a fee of $3,239.05 has been paid.
(2) Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as a
result of stock splits, stock dividends or similar transactions in
accordance with the anti-dilution provisions of the Cotelligent, Inc. 1998
Long-Term Incentive Plan.
(3) Calculated pursuant to Rule 457(h) for the purpose of calculating the
registration fee, based upon the price at which outstanding options may be
exercised.
(4) Calculated pursuant to Rules 457(c) and (h), based upon the average of the
reported high and low sales prices for the Common Stock as reported on the
New York Stock Exchange for November 12, 1998.
(5) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended, (the Securities Act") as follows: Proposed Maximum Offering Price
per share multiplied by .000278.
EXPLANATORY NOTE
A total of 2,471,952 shares of Common Stock of Cotelligent, Inc. (the
"Company") were registered by Registration Statement on Form S-8, File No.
33-3388, to be issued in connection with the Company's 1995 Long-Term Incentive
Plan (the "1995 Plan"). On September 9, 1998, the shareholders of the Company
approved the 1998 Long-Term Incentive Plan (the "1998 Plan"), which replaces the
1995 Plan. Both the 1998 Plan and the 1995 Plan are long term incentive plans.
Six-hundred-eighty-nine-thousand-four-hundred and sixty-seven (689,467) shares
of common stock of the Company which were registered in connection with the 1995
Plan have not been issued under the 1995 Plan and, pursuant to Instruction E to
Form S-8 and the telephonic interpretation of Securities and Exchange Commission
set forth at pages 109-110 of the Division of Corporation Finance's Manual of
Publicly-Available Telephone Interpretations (July 1997), are carried forward
to, and deemed covered by this Registration Statement on Form S-8 in connection
with the 1998 Plan.
NY03/67523.2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act, and the Introductory Note to
Part I of Form S-8.
NY03/67523.2
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by the Company, a Delaware corporation,
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1998, filed with the Commission on June
25,1998.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998, filed with the Commission on August 14,
1998.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, filed with the Commission on
November 16, 1998.
(d) The Company's Current Report on Form 8-K (dated September 3,
1998), filed with the Commission on September 8, 1998.
(e) The Company's Registration Statement on Form S-4 for the
registration of 4,000,000 shares of Common Stock, filed with
the Commission on May 29, 1998.
(f) The description of the Company's Common Stock, contained in
the Registration Statement on Form 8-A as filed with the
Commission on February 18, 1998.
In addition, all reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such reports and documents.
Any statement contained herein, or in a document, all or a portion of
which is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Experts
The consolidated financial statements of the Company included in the
Company's Annual Report on Form 10- K for the fiscal year ended March 31, 1998
incorporated by reference in this Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report dated April 28, 1998, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports. Future financial statements of the company and the reports thereon of
Arthur Andersen LLP also will be incorporated by reference in this Registration
Statement in reliance upon the authority of that firm as experts in giving those
reports to the extent said firm has audited those financial statements and
consented to the use of their reports thereon.
NY03/67523.2
II-1
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Amended and Restated Bylaws provide that the Company
shall, to the fullest extent permitted by Section 145 of the General Corporation
Law of the State of Delaware, as amended, ("DGCL") indemnify its officers and
directors as permitted pursuant thereto.
Section 145 of the DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or agents against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by third parties by reason of the fact that
they were or are directors, officers, employees or agents of the corporation, if
such directors, officers, employees or agents acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reason to believe their conduct was unlawful. In an action by or in the right of
the corporation, indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents in connection
with the defense or settlement of an action or suit, and only with respect to a
matter as to which they shall have acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interest of the
corporation, except that no indemnification shall be made if such person shall
have been adjudged liable to the corporation, unless and only to the extent that
the court in which the action or suit was brought shall determine upon
application that the defendant directors, officers, employees or agents are
fairly and reasonably entitled to indemnify for such expenses despite such
adjudication of liability.
Article Seven of the Company's Amended and Restated Certificate of
Incorporation, provides that the Company's directors will not be personally
liable to the Company or its stockholders for monetary damages resulting from
breaches of their fiduciary duty as directors except (a) for any breach of the
duty of loyalty to the Company or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (c) under Section 174 of the DGCL which makes directors liable for
unlawful dividends or unlawful stock repurchases or redemptions or (d) for
transactions from which directors derive improper personal benefit. The Company
maintains liability insurance for the benefit of its directors and officers.
Item 7. Exemption from Registration.
Not applicable.
Item 8. Exhibits.
Exhibit Description
4.1 Amended and Restated Certificate of Incorporation of the
Company.
4.2 Amended and Restated By-Laws of the Company.
4.3 Cotelligent, Inc. 1998 Long-Term Incentive Plan (incorporated
by reference to Exhibit A to the Company's Proxy Statement
filed with the Commission on July 31, 1998).
NY03/67523.2
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<PAGE>
5 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP(included in Exhibit 5).
24 Powers of Attorney (included on signature pages hereof).
NY03/67523.2
II-3
<PAGE>
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 required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Company 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 the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as ex pressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
NY03/67523.2
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), the Company 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 San Francisco, State of
California, on November 19, 1998.
COTELLIGENT, INC.
By:___________________________________
James R. Lavelle
Chairman of the Board and Chief
Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes, appoints
and constitutes James R. Lavelle, Michael L. Evans, Daniel E. Jackson, and
Herbert D. Montgomery each of them singly, his true and lawful attorneys-in-fact
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities to sign and file any and all
amendments to this report with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and he hereby
ratifies and confirms all that said attorneys-in-fact or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/S/ James R. Lavelle
_____________________ Chairman of the Board and November 19, 1998
James R. Lavelle Chief Executive Officer
(Principal Executive Officer)
/S/ Edward E. Faber
_____________________ Vice Chairman of the Board November 19, 1998
Edward E. Faber
/S/ Michael L. Evans
_____________________ President and Chief Operating Officer November 19, 1998
Michael L. Evans and Director
/S/ Herbert D. Montgomery
_____________________ Senior Vice President, November 19, 1998
Herbert D. Montgomery Chief Financial Officer and Treasurer
(Principal Financial Officer)
/S/ Curtis J. Parker
_____________________ Vice President, Chief Accounting Officer November 19, 1998
Curtis J. Parker (Principal Accounting Officer)
NY03/67523.2
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<PAGE>
_____________________ Director November , 1998
Daniel M. Beals
/S/ Jeffery J. Bernardis
_____________________ Director November 19, 1998
Jeffery J. Bernardis
/S/ Anthony M. Frank
_____________________ Director November 19, 1998
Anthony M. Frank
/S/ B. Tom Green
_____________________ Director November 19, 1998
B. Tom Green
_____________________ Director November , 1998
Harvey L. Poppel
/S/ Susan E. Trice
_____________________ Director November 19, 1998
Susan E. Trice
NY03/67523.2
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</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit Index
<S> <C>
Exhibit Description
4.1 Amended and Restated Certificate of Incorporation of the Company.
4.2 Amended and Restated By-Laws of the Company.
4.3 Cotelligent, Inc. 1998 Long-Term Incentive Plan (incorporated by reference to Exhibit A to the
Company's Proxy Statement filed with the Commission on July 31, 1998).
5 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5).
24 Powers of Attorney (included on signature pages hereof).
</TABLE>
NY03/67523.2
II-7
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COTELLIGENT GROUP INC.
Pursuant to Section 242 of the Delaware
General Corporation Law
MICHAEL L. EVANS, President, and LORRAINE E. VEGA, Secretary of COTELLIGENT
GROUP, INC., a corporation organized and existing under the laws of the State of
Delaware, hereby certify as follows:
FIRST: The Certificate of Incorporation of Cotelligent Group, Inc. was
filed in the Office of the Secretary of State of Delaware on October 18, 1995.
SECOND: Article FIRST of the Certificate of Incorporation of Cotelligent
Group, Inc. is hereby amended to read as follows: "FIRST: The name of the
Corporation is COTELLIGENT, INC."
THIRD: The foregoing amendment has been duly adopted in accordance with
the provisions of Sections 141(f), 228 and 242 of the General Corporation Law of
the State of Delaware. Written consent to the foregoing amendment has been given
to the stockholders of Cotelligent Group, Inc. in accordance with Section 2328
of the General Corporation Law of the State of Delaware. That this Certificate
of Amendment of the Certificate of Incorporation shall be effective on September
9, 1998.
NY02B/21527.1
<PAGE>
IN WITNESS WHEREOF, the undersigned have made and signed this
Certificate of Amendment as of this 9th day of September, 1998.
/s/ Michael L. Evans
Michael L. Evans
President
ATTESTED:
/s/ Lorraine E. Vega
Lorraine E. Vega
Secretary
NY02B/21527.1
<PAGE>
AMENDED AND RESTATED
BY-LAWS
OF
COTELLIGENT, INC.
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of the stockholders
of the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Board of
Directors, for the purpose of electing Directors and for the transaction of such
other business as may be properly brought before the meeting.
SECTION 2. Special Meetings. Except as otherwise provided in the
Amended and Restated Certificate of Incorporation, a special meeting of the
stockholders of the Corporation may be called at any time by the Board of
Directors or the President and shall be called by the President or the Secretary
at the request in writing of stockholders holding together at least twenty-five
percent of the number of shares of stock outstanding and entitled to vote at
such meeting. Any special meeting of the stockholders shall be held on such
date, at such time and at such place within or without the State of Delaware as
the Board of Directors or the officer
NY02/217253.2
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<PAGE>
calling the meeting may designate. At a special meeting of the stockholders, no
business shall be transacted and no corporate action shall be taken other than
that stated in the notice of the meeting unless all of the stockholders are
present in person or by proxy, in which case any and all business may be
transacted at the meeting even though the meeting is held without notice.
SECTION 3. Notice of Meetings. Except as otherwise provided in
these Amended and Restated By-Laws or by law, a written notice of each meeting
of the stockholders shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder of the Corporation
entitled to vote at such meeting at his address as it appears on the records of
the Corporation. The notice shall state the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called.
SECTION 4. Quorum. At any meeting of the stockholders, the holders
of a majority in number of the total outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum of the stockholders for all purposes, unless
the representation of a larger number of shares shall be required by law, by the
Amended and Restated Certificate of Incorporation or by these Amended and
Restated By-Laws, in which case the representation of the number of shares so
required shall constitute a quorum; provided that at any meeting of the
stockholders at which the holders of any class of stock of the Corporation shall
be entitled to vote separately as a class, the holders of a majority in number
of the total outstanding shares of such class, present in person or represented
by
NY02/217253.2
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<PAGE>
proxy, shall constitute a quorum for purposes of such class vote unless the
representation of a larger number of shares of such class shall be required by
law, by the Amended and Restated Certificate of Incorporation or by these
Amended and Restated By-Laws.
SECTION 5. Adjourned Meetings. Whether or not a quorum shall be
present in person or represented at any meeting of the stockholders, the holders
of a majority in number of the shares of stock of the Corporation present in
person or represented by proxy and entitled to vote at such meeting may adjourn
from time to time; provided, however, that if the holders of any class of stock
of the Corporation are entitled to vote separately as a class upon any matter at
such meeting, any adjournment of the meeting in respect of action by such class
upon such matter shall be determined by the holders of a majority of the shares
of such class present in person or represented by proxy and entitled to vote at
such meeting. When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the stockholders, or the holder of any class of stock entitled to vote
separately as a class, as the case may be, may transact any business which might
have been transacted by them at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the adjourned meeting.
NY02/217253.2
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<PAGE>
SECTION 6. Organization. The President or, in his absence, a Vice
President shall call all meetings of the stockholders to order, and shall act as
Chairman of such meetings. In the absence of the President and all of the Vice
Presidents, the holders of a majority in number of the shares of stock of the
Corporation present in person or represented by proxy and entitled to vote at
such meeting shall elect a Chairman.
The Secretary of the Corporation shall act as Secretary of all
meetings of the stockholders; but in the absence of the Secretary, the Chairman
may appoint any person to act as Secretary of the meeting. It shall be the duty
of the Secretary to prepare and make, at least ten days before every meeting of
stockholders, a complete list of stockholders entitled to vote at such meeting,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held, for the ten days next
preceding the meeting, to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, and shall be produced
and kept at the time and place of the meeting during the whole time thereof and
subject to the inspection of any stockholder who may be present.
SECTION 7. Voting. Except as otherwise provided in the Amended and Restated
Certificate of Incorporation or by law, each stockholder shall be entitled to
one vote for each
NY02/217253.2
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<PAGE>
share of the capital stock of the Corporation registered in the name of such
stockholder upon the books of the Corporation. Each stockholder entitled to vote
at a meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. When
directed by the presiding officer or upon the demand of any stockholder, the
vote upon any matter before a meeting of stockholders shall be by ballot. Except
as otherwise provided by law or by the Amended and Restated Certificate of
Incorporation, Directors shall be elected by a plurality of the votes cast at a
meeting of stockholders by the stockholders entitled to vote in the election
and, whenever any corporate action, other than the election of Directors is to
be taken, it shall be authorized by a majority of the votes cast at a meeting of
stockholders by the stockholders entitled to vote thereon.
Shares of the capital stock of the Corporation belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes.
SECTION 8. Inspectors. When required by law or directed by the presiding
officer or upon the demand of any stockholder entitled to vote, but not
otherwise, the polls shall be opened and closed, the proxies and ballots shall
be received and taken in charge, and all
NY02/217253.2
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<PAGE>
questions touching the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided at any meeting of the
stockholders by two or more Inspectors who may be appointed by the Board of
Directors before the meeting, or if not so appointed, shall be appointed by the
presiding officer at the meeting. If any person so appointed fails to appear or
act, the vacancy may be filled by appointment in like manner.
SECTION 9. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Amended and Restated Certificate of Incorporation, any
action required to be taken or which may be taken at any annual or special
meeting of the stockholders of the Corporation, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of any such corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
NY02/217253.2
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<PAGE>
ARTICLE II
Board of Directors
SECTION 1. Number and Term of Office. The business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors, none of whom need be stockholders of the Corporation. The number of
Directors constituting the Board of Directors shall be fixed from time to time
by resolution passed by a majority of the Board of Directors. The Directors
shall, except as hereinafter otherwise provided for filling vacancies, be
elected at the annual meeting of stockholders, and shall hold office until their
respective successors are elected and qualified or until their earlier
resignation or removal.
SECTION 2. Removal, Vacancies and Additional Directors. The
stockholders may, at any special meeting the notice of which shall state that it
is called for that purpose, remove, with or without cause, any Director and fill
the vacancy; provided that whenever any Director shall have been elected by the
holders of any class of stock of the Corporation voting separately as a class
under the provisions of the Amended and Restated Certificate of Incorporation,
such Director may be removed and the vacancy filled only by the holders of that
class of stock voting separately as a class. Vacancies caused by any such
removal and not filled by the stockholders at the meeting at which such removal
shall have been made, or any vacancy caused by the death or resignation of any
Director or for any other reason, and any newly created directorship resulting
from any increase in the authorized number of Directors, may be filled by the
NY02/217253.2
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<PAGE>
affirmative vote of a majority of the Directors then in office, although less
than a quorum, and any Director so elected to fill any such vacancy or newly
created directorship shall hold office until his successor is elected and
qualified or until his earlier resignation or removal.
When one or more Directors shall resign effective at a future date,
a majority of the Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each Director so chosen shall hold office as herein provided in connection with
the filling of other vacancies.
SECTION 3. Place of Meeting. The Board of Directors may hold its
meetings in such place or places in the State of Delaware or outside the State
of Delaware as the Board from time to time shall determine.
SECTION 4. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board from time to time
by resolution shall determine. No notice shall be required for any regular
meeting of the Board of Directors; but a copy of every resolution fixing or
changing the time or place of regular meetings shall be mailed to every Director
at least five days before the first meeting held in pursuance thereof.
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SECTION 5. Special Meetings. Notice of the day, hour and place of
holding of each special meeting shall be given by mailing the same via
registered or certified mail, return receipt requested, at least two days before
the meeting or by causing the same to be transmitted by overnight courier with
evidence of receipt, by telephone with written confirmation or by facsimile
transmission with oral confirmation of receipt at least one day before the
meeting to each Director. Unless otherwise indicated in the notice thereof, any
and all business other than an amendment of these Amended and Restated By-Laws
may be transacted at any special meeting, and an amendment of these Amended and
Restated By-Laws may be acted upon if the notice of the meeting shall have
stated that the amendment of these Amended and Restated ByLaws is one of the
purposes of the meeting. At any meeting at which every Director shall be
present, even through without any notice, any business may be transacted,
including the amendment of these Amended and Restated By-Laws.
SECTION 6. Quorum. Subject to the provisions of Section 2 of this
Article II, a majority of the members of the Board of Directors in office (but
in no case less than one-third of the total number of Directors nor less than
two Directors) shall constitute a quorum for the transaction of business and the
vote of the majority of the Directors present at any meeting of the Board of
Directors at which a quorum is present shall be the act of the Board of
Directors. If at any meeting of the Board there is less than a quorum present, a
majority of those present may adjourn the meeting from time to time.
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SECTION 7. Organization. The President shall preside at all
meetings of the Board of Directors. In the absence of the President, a Chairman
shall be elected from the Directors present. The Secretary of the Corporation
shall act as Secretary of all meetings of the Directors; but in the absence of
the Secretary, the Chairman may appoint any person to act as Secretary of the
meeting.
SECTION 8. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the Directors of the Corporation. The
Board may designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided by resolution passed by a majority of the whole Board, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and the affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to amending
the Amended and Restated Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the
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Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
these Amended and Restated ByLaws; and unless such resolution, these Amended and
Restated By-Laws, or the Amended and Restated Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
SECTION 9. Conference Telephone Meetings. Unless otherwise
restricted by the Amended and Restated Certificate of Incorporation or by these
Amended and Restated By-Laws, the members of the Board of Directors or any
committee designated by the Board, may participate in a meeting of the Board or
such committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 10. Consent of Directors or Committee in Lieu of Meeting.
Unless otherwise restricted by the Amended and Restated Certificate of
Incorporation or by these Amended and Restated By-Laws, any action required or
permitted to be taken at any meeting of the Board Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the Board or committee, as
the case may be.
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ARTICLE III
Officers
SECTION 1. Officers. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary and a Treasurer, and such
additional officers, if any, as shall be elected by the Board of Directors
pursuant to the provisions of Section 6 of this Article III. The President, one
or more Vice Presidents, the Secretary and the Treasurer shall be elected by the
Board of Directors at its first meeting after each annual meeting of the
stockholders. The failure to hold such election shall not of itself terminate
the term of office of any officer. All officers shall hold office at the
pleasure of the Board of Directors. Any officer may resign at any time upon
written notice to the Corporation. Officers may, but need not, be Directors. Any
number of offices may be held by the same person.
All officers, agents and employees shall be subject to removal,
with or without cause, at any time by the Board of Directors. The removal of an
officer without cause shall be without prejudice to his contract rights, if any.
The election or appointment of an officer shall not of itself create contract
rights. All agents and employees other than officers elected by the Board of
Directors shall also be subject to removal, with or without cause, at any time
by the officers appointing them.
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Any vacancy caused by the death of any officer, his resignation,
his removal, or otherwise, may be filled by the Board of Directors, and any
officer so elected shall hold office at the pleasure of the Board of Directors.
In addition to the powers and duties of the officers of the
Corporation as set forth in these Amended and Restated By-Laws, the officers
shall have such authority and shall perform such duties as from time to time may
be determined by the Board of Directors.
SECTION 2. Powers and Duties of the President. The President shall
be the chief executive officer of the Corporation and, subject to the control of
the Board of Directors, shall have general charge and control of all its
business and affairs and shall have all powers and shall perform all duties
incident to the office of President. He shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors and shall have such
other powers and perform such other duties as may from time to time be assigned
to him by these Amended and Restated By-Laws or by the Board of Directors.
SECTION 3. Powers and Duties of the Vice Presidents. Each Vice
President shall have all powers and shall perform all duties incident to the
office of Vice President and shall have such other powers and perform such other
duties as may from time to time be assigned to him by these Amended and Restated
By-Laws or by the Board of Directors or the President.
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SECTION 4. Powers and Duties of the Secretary. The Secretary shall
keep the minutes of all meetings of the Board of Directors and the minutes of
all meetings of the stockholders in books provided for that purpose; he shall
attend to the giving or serving of all notices of the Corporation; he shall have
custody of the corporate seal of the Corporation and shall affix the same to
such documents and other papers as the Board of Directors or the President shall
authorize and direct; he shall have charge of the stock certificate books,
transfer books and stock ledgers and such other books and papers as the Board of
Directors or the President shall direct, all of which shall at all reasonable
times be open to the examination of any Director, upon application, at the
office of the Corporation during business hours; and he shall have all powers
and shall perform all duties incident to the office of Secretary and shall also
have such other powers and shall perform such other duties as may from time to
time be assigned to him by these Amended and Restated By-Laws or by the Board of
Directors or the President.
SECTION 5. Powers and Duties of the Treasurer. The Treasurer shall
have custody of, and when proper shall pay out, disburse or otherwise dispose
of, all funds and securities of the Corporation which may have come into his
hands; he may endorse on behalf of the Corporation for collection checks, notes
and other obligations and shall deposit the same to the credit of the
Corporation in such bank or banks or depositary or depositaries as the Board of
Directors may designate; he shall sign all receipts and vouchers for payments
made to the Corporation; he shall enter or cause to be entered regularly in the
books of the Corporation kept
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for the purpose full and accurate accounts of all moneys received or paid or
otherwise disposed of by him and whenever required by the Board of Directors or
the President shall render statements of such accounts; he shall, at all
reasonable times, exhibit his books and accounts to any Director of the
Corporation upon application at the office of the Corporation during business
hours; and he shall have all powers and shall perform all duties incident of the
office of Treasurer and shall also have such other powers and shall perform such
other duties as may from time to time be assigned to him by these Amended and
Restated By-Laws or by the Board of Directors or the President.
SECTION 6. Additional Officers. The Board of Directors may from
time to time elect such other officers (who may but need not be Directors),
including a Controller, Assistant Treasurers, Assistant Secretaries and
Assistant Controllers, as the Board may deem advisable and such officers shall
have such authority and shall perform such duties as may from time to time be
assigned to them by the Board of Directors or the President.
The Board of Directors may from time to time by resolution delegate
to any Assistant Treasurer or Assistant Treasurers any of the powers or duties
herein assigned to the Treasurer; and may similarly delegate to any Assistant
Secretary or Assistant Secretaries any of the powers or duties herein assigned
to the Secretary.
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SECTION 7. Giving of Bond by Officers. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish bonds
to the Corporation for the faithful performance of their duties, in such
penalties and with such conditions and security as the Board shall require.
SECTION 8. Voting Upon Stocks. Unless otherwise ordered by the
Board of Directors, the President or any Vice President shall have full power
and authority on behalf of the Corporation to attend and to act and to vote, or
in the name of the Corporation to execute proxies to vote, at any meeting of
stockholders of any corporation in which the Corporation may hold stock, and at
any such meeting shall possess and may exercise, in person or by proxy, any and
all rights, powers and privileges incident to the ownership of such stock. The
Board of Directors may from time to time, by resolution, confer like powers upon
any other person or persons.
SECTION 9. Compensation of Officers. The officers of the
Corporation shall be entitled to receive such compensation for their services as
shall from time to time be determined by the Board of Directors.
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ARTICLE IV
Indemnification of Directors and Officers
Section 1. Nature of Indemnity. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was or has agreed to become a Director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
Director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (1) such indemnification shall be limited to expenses (including
attorneys'
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fees) actually and reasonably incurred by such person in the defense or
settlement of such action or suit, and (2) no indemnification shall be made in
respect of 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
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section 2. Successful Defense. To the extent that a Director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
1 of this Article IV or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
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Section 3. Determination that Indemnification is Proper. Any
indemnification of a Director or officer of the Corporation under Section 1 of
this Article IV (unless ordered by a court) shall be made by the Corporation
unless a determination is made that indemnification of the Director or officer
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Section 1. Any indemnification of an employee
or agent of the Corporation under Section 1 (unless ordered by a court) may be
made by the Corporation upon a determination that indemnification of the
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1. Any such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested Directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
Section 4. Advance Payment of Expenses. Unless the Board of
Directors otherwise determines in a specific case, expenses incurred by a
Director or officer in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
Director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article IV. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may authorize the
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Corporation's legal counsel to represent such Director, officer, employee or
agent in any action, suit or proceeding, whether or not the Corporation is a
party to such action, suit or proceeding.
Section 5. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any action,
suit, or proceeding previously or thereafter brought or threatened based in
whole or in part upon any such state of facts. Such a contract right may not be
modified retroactively without the consent of such Director, officer, employee
or agent.
The indemnification provided by this Article IV shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person. The
corporation may enter into an agreement with any of its Directors, officers,
employees or agents providing for indemnification and
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advancement of expenses, including attorneys fees, that may change, enhance,
qualify or limit any right to indemnification or advancement of expenses created
by this Article IV.
Section 6. Severability. If this Article IV or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgment, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article IV that shall not have been invalidated and to the
fullest extent permitted by applicable law.
Section 7. Subrogation. In the event of payment of indemnification
to a person described in Section 1 of this Article IV, the Corporation shall be
subrogated to the extent of such payment to any right of recovery such person
may have and such person, as a condition of receiving indemnification from the
Corporation, shall execute all documents and do all things that the Corporation
may deem necessary or desirable to perfect such right of recovery, including the
execution of such documents necessary to enable the Corporation effectively to
enforce any such recovery.
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Section 8. No Duplication of Payments. The Corporation shall not be
liable under this Article IV to make any payment in connection with any claim
made against a person described in Section 1 of this Article IV to the extent
such person has otherwise received payment (under any insurance policy, by-law
or otherwise) of the amounts otherwise payable as indemnity hereunder.
ARTICLE V
Stock-Seal-Fiscal Year
SECTION 1. Certificates For Shares of Stock. The certificates for
shares of stock of the Corporation shall be in such form, not inconsistent with
the Amended and Restated Certificate of Incorporation, as shall be approved by
the Board of Directors. All certificates shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, and shall not be valid unless so signed.
In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates had not ceased
to be such officer or officers of the Corporation.
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All certificates for shares of stock shall be consecutively
numbered as the same are issued. The name of the person owning the shares
represented thereby with the number of such shares and the date of issue thereof
shall be entered on the books of the Corporation.
Except as hereinafter provided, all certificates surrendered to the
Corporation for transfer shall be canceled, and no new certificates shall be
issued until former certificates for the same number of shares have been
surrendered and canceled.
SECTION 2. Lost, Stolen or Destroyed Certificates. Whenever a
person owning a certificate for shares of stock of the Corporation alleges that
it has been lost, stolen or destroyed, he shall file in the office of the
Corporation an affidavit setting forth, to the best of his knowledge and belief,
the time, place and circumstances of the loss, theft or destruction, and, if
required by the Board of Directors, a bond of indemnity or other indemnification
sufficient in the opinion of the Board of Directors to indemnify the Corporation
and its agents against any claim that may be made against it or them on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of a new certificate in replacement therefor. Thereupon the Corporation
may cause to be issued to such person a new certificate in replacement for the
certificate alleged to have been lost, stolen or destroyed. Upon the stub of
every new certificate so issued shall be noted the fact of such issue and the
number, date and the name of the registered owner of the lost, stolen or
destroyed certificate in lieu of which the new certificate is issued.
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SECTION 3. Transfer of Shares. Shares of stock of the Corporation
shall be transferred on the books of the Corporation by the holder thereof, in
person or by his attorney duly authorized in writing, upon surrender and
cancellation of certificates for the number of shares of stock to be
transferred, except as provided in Section 2 of this Article IV.
SECTION 4. Regulations. The Board of Directors shall have power and
authority to make such rules and regulations as it may deem expedient concerning
the issue, transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 5. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting or to receive payment of any dividend or other distribution or
allotment of any rights, or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
as the case may be, the Board of Directors may fix, in advance, a record date,
which shall not be (i) more than sixty (60) nor less than ten (10) days before
the date of such meeting, or (ii) in the case of corporate action to be taken by
consent in writing without a meeting, prior to, or more than ten (10) days
after, the date upon which the resolution fixing the record date is adopted by
the Board of Directors, or (iii) more than sixty (60) days prior to any other
action.
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If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting, when no prior action by the Board of Directors is necessary, shall be
the day on which the first written consent is delivered to the Corporation; and
the record date for determining stockholders for any other purpose shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 6. Dividends. Subject to the provisions of the Amended and
Restated Certificate of Incorporation, the Board of Directors shall have power
to declare and pay dividends upon shares of stock of the Corporation, but only
out of funds available for the payment of dividends as provided by law.
Subject to the provisions of the Amended and Restated Certificate
of Incorporation, any dividends declared upon the stock of the Corporation shall
be payable on such date or dates as the Board of Directors shall determine. If
the date fixed for the payment of any dividend shall
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in any year fall upon a legal holiday, then the dividend payable on such date
shall be paid on the next day not a legal holiday.
SECTION 7. Corporate Seal. The Board of Directors shall provide a
suitable seal, containing the name of the Corporation, which seal shall be kept
in the custody of the Secretary. A duplicate of the seal may be kept and be used
by any officer of the Corporation designated by the Board of Directors or the
President.
SECTION 8. Fiscal Year. The fiscal year of the Corporation shall
be such fiscal year as the Board of Directors from time to time by resolution
shall determine.
ARTICLE VI Miscellaneous
Provisions.
SECTION 1. Checks, Notes, Etc. All checks, drafts, bills of
exchange, acceptances, notes or other obligations or orders for the payment of
money shall be signed and, if so required by the Board of Directors,
countersigned by such officers of the Corporation and/or other persons as the
Board of Directors from time to time shall designate.
Checks, drafts, bills of exchange, acceptances, notes, obligations
and orders for the payment of money made payable to the Corporation may be
endorsed for deposit to the credit of
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the Corporation with a duly authorized depository by the Treasurer and/or such
other officers or persons as the Board of Directors from time to time may
designate.
SECTION 2. Loans. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized to do so, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust company or
other institution or from any firm, corporation or individual, and for such
loans and advances may make, execute and deliver promissory notes, bonds or
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
SECTION 3. Contracts. Except as otherwise provided in these Amended
and Restated By-Laws or by law or as otherwise directed by the Board of
Directors, the President or any Vice President shall be authorized to execute
and deliver, in the name and on behalf of the Corporation, all agreements,
bonds, contracts, deeds, mortgages, and other instruments, either for the
Corporation's own account or in a fiduciary or other capacity, and the seal of
the Corporation, if appropriate, shall be affixed thereto by any of such
officers or the Secretary or an
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Assistant Secretary. The Board of Directors, the President or any Vice President
designated by the Board of Directors may authorize any other officer, employee
or agent to execute and deliver, in the name and on behalf of the Corporation,
agreements, bonds, contracts, deeds, mortgages, and other instruments, either
for the Corporation's own account or in a fiduciary or other capacity, and, if
appropriate, to affix the seal of the Corporation thereto. The grant of such
authority by the Board or any such officer may be general or confined to
specific instances.
SECTION 4. Waivers of Notice. Whenever any notice whatever is
required to be given by law, by the Amended and Restated Certificate of
Incorporation or by these Amended and Restated By-Laws to any person or persons,
a waiver thereof in writing, signed by the person or persons entitled to the
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
SECTION 5. Offices Outside of Delaware. Except as otherwise
required by the laws of the State of Delaware, the Corporation may have an
office or offices and keep its books, documents and papers outside of the State
of Delaware at such place or places as from time to time may be determined by
the Board of Directors or the President.
SECTION 6. Transfer of Rights by Acquiring Person. Rights issued
pursuant to the Rights Agreement, dated September 24, 1997 between the
Corporation and the First National Bank of Boston (the "Rights Agreement"), may
be transferred by an Acquiring Person or an
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Associate or Affiliate of an Acquiring Person (as such terms are defined in the
Rights Agreement) only in accordance with the terms of, and subject to the
restrictions contained in, the Rights Agreement.
ARTICLE VII
Amendments
These Amended and Restated By-Laws and any amendment thereof may be
altered, amended or repealed, or new By-Laws may be adopted, by the Board of
Directors at any regular or special meeting by the affirmative vote of a
majority of all of the members of the Board, provided in the case of any special
meeting at which all of the members of the Board are not present, that the
notice of such meeting shall have stated that the amendment of these Amended and
Restated By-Laws was one of the purposes of the meeting; but these Amended and
Restated By-Laws and any amendment thereof may be altered, amended or repealed
or new By-Laws may be adopted by the holders of a majority of the total
outstanding stock of the Corporation entitled to vote at any annual meeting or
at any special meeting, provided, in the case of any special meeting, that
notice of such proposed alteration, amendment, repeal or adoption is included in
the notice of the meeting.
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EXHIBIT 5
Opinion of Morgan Lewis & Bockius LLP
November 19, 1998
Cotelligent, Inc.
101 California Street
Suite 2050
San Francisco, CA 94111
Re: Issuance of Additional Shares Pursuant to
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as outside counsel to Cotelligent, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-8
(the "Registration Statement") relating to the registration by the Company of an
additional 1,971,424 shares (the "Shares") of the Company's Common Stock, $.01
par value per share, to be issued pursuant to or be granted under the Company's
1998 Long-Term Incentive Plan (as amended to date, the "Plan").
In so acting, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of (a) the Amended and Restated Certificate of
Incorporation of the Company, (b) the Amended and Restated By-Laws of the
Company, (c) a good standing certificate dated as of a recent date from the
State of Delaware, (d) the Plan and (e) such other documents, records,
certificates and other instruments of the Company as in our judgment are
necessary or appropriate for purposes of this opinion.
Based on the foregoing, we are of the following opinion:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware.
2. The Shares, when issued in accordance with the terms of the
Plan and for consideration not less than par value per Share,
will be duly authorized, validly issued, fully paid and
non-assessable.
We are expressing the opinions above as members of the Bar of the State of
New York and express no opinion as to any law other than the General Corporation
Law of the State of Delaware.
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such opinion, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/S/ Morgan, Lewis & Bokius LLP
___________________________
Morgan, Lewis & Bockius LLP
NY03/67523.2
II-1
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated April 28, 1998 included in the Annual Report on Form 10-K of
Cotelligent, Inc., for the year ended March 31, 1998 and to all references to
our Firm included in this Registration Statement.
/S/ Arthur Andersen LLP
_________________________
ARTHUR ANDERSEN LLP
San Francisco, California
November 19, 1998
NY03/67523.2
II-8
<PAGE>
