As filed with the Securities and Exchange Commission on March ___, 2000
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 of (IRS Employer
incorporation or organization) Identification No.)
_____________
101 California Street
Suite 2050
San Francisco, California 94111
(415) 439-6400
(Address, including zip code, of Principal Executive Offices)
______________
COTELLIGENT, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan or Agreement)
_____________
James R. Lavelle
Chairman of the Board, Chief Executive Officer and President
101 California Street
Suite 2050
San Francisco, California 94111
(415) 439-6400
(Name, address, and telephone number,
including area code, of agent for service)
_____________
Copies to:
David W. Pollak, Esq. Lorraine E. Vega, 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
_____________
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Maximum Aggregate
Title of securities to Number of Shares to be Offering offering Amount of
be registered registered (1) Price per share price registration fee (3)
- -------------------------------------- ----------------------- --------------- ------------ --------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 650,000 $ 5.219(2) $ 3,392,350 $ 895.58
</TABLE>
(1) Pursuant to Rule 416(a), the number of shares being registered shall
include an indeterminate number of additional shares of common stock or
common stock which may become issuable as a result of stock splits, stock
dividends, or similar transactions in accordance with anti-dilution
provisions of the Cotelligent, Inc. Employee Stock Purchase Plan.
(2) Calculated pursuant to Rules 457(c) and (h), based upon the average of the
high and low prices reported on the New York Stock Exchange for March 21,
2000.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as
follows: Proposed maximum aggregate offering price per share multiplied by
.000264.
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 of 1933, as amended (the
"Act"), and the Explanatory Note to Part I of this Registration
Statement on Form S-8.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by us with the Securities and Exchange
Commission ("SEC") are incorporated by reference into this Registration
Statement:
(a) Our Quarterly Reports on Form 10-Q filed with the SEC on February 14, 2000,
November 15, 1999, and August 16, 1999;
(b) Our Annual Report on Form 10-K filed with the SEC on June 29, 1999;
(c) Our Current Reports on Form 8-K filed with the SEC on February 14, 2000,
December 6, 1999, and October 4, 1999; and
(d) Our Registration Statement on Form 8-A filed with the SEC on February 18,
1998, describing our common stock, including any amendments or reports
filed for the purpose of updating the description of our common stock that
is incorporated by reference therein.
All reports and other documents subsequently filed by us pursuant to
Section 13(a), 13(c), 14 or 15(d) of 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 in this Registration Statement and to be a part
hereof from the date of filing of such 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 financial statements included in our Annual Report on Form 10-K for the
fiscal year ended March 31, 1999 incorporated by reference in this Prospectus
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report dated April 26, 1999, and are included herein in
reliance upon the authority of said firm as experts in giving said report.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
Our Amended and Restated Bylaws provide that we shall, to the fullest
extent permitted by Section 145 of the General Corporation Law of the State of
Delaware, as amended ("DGCL"), indemnify our 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 our Amended and Restated Certificate of Incorporation,
provides that our 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. We maintain liability insurance for
the benefit of our directors and officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Description
4.1 Certificate of Incorporation of Cotelligent, Inc. (Exhibit 3.1 of the
Registration Statement on Form S-1 (File No. 33-80267) effective
February 16, 1996, is hereby incorporated by reference)
4.2 By-Laws of Cotelligent, Inc. (Exhibit 3.2 of the Registration
Statement on Form S-1 (File No. 33-80267) effective February 16, 1996,
is hereby incorporated by reference)
4.3 Certificate of Amendment of Certificate of Incorporation of
Cotelligent, Inc. (Exhibit 3.3 of the Annual Report on Form 10-K (File
No. 00-25372) filed with the SEC on June 29, 1999, is hereby
incorporated by reference)
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<PAGE>
4.4 Cotelligent, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.3 Consent of Morgan Lewis & Bockius LLP (included in Exhibit 5.1).
24 Powers of Attorney (included on page II-5 of this Registration
Statement).
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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the 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 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
registrant'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.
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<PAGE>
(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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC 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 action, 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.
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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 March 17, 2000.
COTELLIGENT, INC.
By: /S/ James R. Lavelle
--------------------
James R. Lavelle
Chairman of the Board, Chief Executive Officer and President
POWERS OF ATTORNEY
Each person whose signature appears below hereby authorizes, appoints and
constitutes James R. Lavelle and Daniel E. Jackson, and 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 Registration
Statement 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.
Signature Title Date
/S/ James R. Lavelle Chairman of the Board, March 17, 2000
- -------------------- Chief Executive Officer
James R. Lavelle and President
(Principal Executive Officer)
/S/ Edward E. Faber Vice Chairman of the Board March 17, 2000
- -------------------
Edward E. Faber
/S/ Daniel E. Jackson
- --------------------- Executive Vice President, March 23, 2000
Daniel E. Jackson Chief Financial Officer and
Treasurer and Director
(Principal Financial Officer)
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<PAGE>
/s/ Curtis J. Parker Vice President and Chief Accounting March 22, 2000
- -------------------- Officer (Principal Accounting
Curtis J. Parker Officer)
/S/ Jeffrey J. Bernardis Director March 17, 2000
- ------------------------
Jeffrey J. Bernardis
/S/ B. Tom Green Director March 17, 2000
- ----------------
B. Tom Green
/s/ Harvey L. Poppel Director March 20, 2000
- --------------------
Harvey L. Poppel
/S/ Anthony M. Frank Director March 17, 2000
- --------------------
Anthony M. Frank
/S/ Ralph H. Baxter, Jr. Director March 17, 2000
- ------------------------
Ralph H. Baxter, Jr.
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EXHIBITS
Exhibit Description
4.1 Certificate of Incorporation of Cotelligent, Inc. (Exhibit 3.1 of the
Registration Statement on Form S-1 (File No. 33-80267) effective
February 16, 1996, is hereby incorporated by reference)
4.2 By-Laws of Cotelligent, Inc. (Exhibit 3.2 of the Registration
Statement on Form S-1 (File No. 33-80267) effective February 16, 1996,
is hereby incorporated by reference)
4.3 Certificate of Amendment of Certificate of Incorporation of
Cotelligent, Inc. (Exhibit 3.3 of the Annual Report on Form 10-K (File
No. 00-25372) filed with the SEC on June 29, 1999, is hereby
incorporated by reference)
4.4 Cotelligent, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Arthur Andersen LLP.
23.3 Consent of Morgan Lewis & Bockius LLP (included in Exhibit 5.1).
24 Powers of Attorney (included on page II-5 of this Registration
Statement).
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Exhibit 4.4
COTELLIGENT GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
Introduction
Sec. 1.01 Statement of Purpose. The purpose of the Cotelligent Group, Inc.
Employee Stock Purchase Plan is to provide eligible employees of the Company and
its Subsidiaries, who wish to become stockholders, an opportunity to purchase
Common Stock of the Company. The Board of Directors of the Company believes that
employee participation in ownership will be to the mutual benefit of both the
employees and the Company.
Sec. 1.02 Internal Revenue Code Considerations. The Plan is intended to
constitute an "employee stock purchase plan" within the meaning of section 423
of the Internal Revenue Code of 1986, as amended.
ARTICLE II
Definitions
Sec. 2.01 "Administrative Committee" means the committee appointed by the
Board to administer the Plan, as provided in Section 6.04 hereof.
Sec. 2.02 "Board" means the Board of Directors of the Company.
Sec. 2.03 "Code" means the Internal Revenue Code of 1986, as amended.
Sec. 2.04 "Company" means Cotelligent Group, Inc., a Delaware corporation.
Sec. 2.05 "Compensation" means the total remuneration paid, during the
period of reference, to an Employee by the Company or a Subsidiary, including
regular salary or wages, overtime payments, bonuses, commissions and vacation
pay, to which has been added (a) any elective deferral amounts by which the
Employee has had his current remuneration reduced for the purposes of funding a
contribution to any plan sponsored by the Company and satisfying the
requirements of section 401(k) of the Code, and (b) any amounts by which the
Employee's compensation has been reduced pursuant to a compensation reduction
agreement between the Employee and the Company for the purpose of funding
benefits through any cafeteria plan sponsored by the Company meeting the
requirements of section 125 of the Code. There shall be excluded from
"Compensation" for the purposes of the Plan, whether or not reportable as income
by the Employee, expense reimbursements of all types, payments in lieu of
expenses, the Company contributions to any qualified retirement plan or other
program of deferred compensation (except as provided above), the Company
contributions to Social Security or worker's compensation, the costs paid by the
Company in connection with fringe benefits and relocation, including gross-ups,
and any amounts accrued for the benefit of Employee, but not paid, during the
period of reference.
Sec. 2.06 "Continuous Service" means the period of time during which the
Employee has been employed by the Company or a Subsidiary and during which there
has been no interruption of Employee's employment by the Company. For this
purpose, periods during which an Employee is on Temporary Inactive Status shall
not be considered to be interruptions of Continuous Service. If determined by
the Administrative Committee, periods of service with an entity prior to its
becoming a Subsidiary shall be taken into account.
Sec. 2.07 "Effective Date" shall mean August 16, 1996, if within twelve
months of that date, the Plan is or has been approved at a
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meeting of the stockholders of the Company by the affirmative vote of the
holders of the majority of Common Stock of the Company outstanding.
Sec. 2.08 "Eligible Employee" means each person who:
(a) is an Employee whose customary employment is for more than 20 hours per
week and more than 5 months in any calendar year;
(b) is an Employee on the Effective Date, or otherwise has completed at
least 180 days of Continuous Service; and
(c) is not deemed for purposes of section 423(b)(3) of the Code to own
stock possessing 5% or more of the total combined voting power or value of
all classes of stock of the Company.
Sec. 2.09 "Employee" means each person employed by the Company or a
Subsidiary.
Sec. 2.10 "Exercise Date" means the last day of each Purchase Period.
Sec. 2.11 "Market Value" means, with respect to Stock, the fair market
value of such Stock, determined by such methods or procedures as shall be
established from time to time by the Administrative Committee, provided,
however, that if the Stock is listed on a national securities exchange or quoted
in an interdealer quotation system, the Market Value of such Stock on a given
date shall be based upon the last sales price or, if unavailable, the average of
the closing bid and asked prices per share of the Stock on such date (or, if
there was no trading or quotation in the Stock on such date, on the next
preceding date on which there was trading or quotation) as provided by one of
such organizations.
Sec. 2.12 "Offering" means the offering of shares of Stock under the Plan.
Sec. 2.13 "Offering Date" means the first business day of each February,
May, August and November during which the Plan is in effect, or such dates as
may otherwise be specified by the Administrative Committee, provided, however,
that the first Offering Date shall be the Effective Date and the next subsequent
Offering Date shall be November 1, 1996.
Sec. 2.14 "Participant" means each Eligible Employee who elects to
participate in the Plan.
Sec. 2.15 "Plan" means the Cotelligent Group, Inc. Employee Stock Purchase
Plan, as the same is set forth herein and as the same may hereafter be amended.
Sec. 2.16 "Purchase Agreement" means the document prescribed by the
Administrative Committee pursuant to which an Eligible Employee has enrolled to
be a Participant.
Sec. 2.17 "Purchase Period" means the period beginning on an Offering Date
and ending on the business day preceding the next following Offering Date.
Sec. 2.18 "Purchase Price" means such term as it is defined in Section 4.03
hereof.
Sec. 2.19 "Stock" means Common Stock of the Company.
Sec. 2.20 "Stock Purchase Account" means a noninterest bearing account
consisting of all amounts withheld from an Employee's compensation (or otherwise
paid into the Plan) for the purpose of purchasing shares of Stock for such
employee under the Plan, reduced by all amounts applied to the purchase of Stock
for such Employee under the Plan.
Sec. 2.21 "Subsidiary" shall mean a corporation described in section
424(f) of the Code that has, with the permission of the Board,
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adopted the Plan.
Sec. 2.22 "Temporary Inactive Status" shall describe the status of a
former hourly Employee whose employment was terminated upon completion of an
assignment for the Company or a Subsidiary, for so long as such former Employee
(i) remains available for future assignments with the Company or a Subsidiary,
(ii) has not, directly or indirectly, accepted an assignment from or a position
with an entity unaffiliated with the Company and its Subsidiaries, and (iii)
otherwise remains in good standing with the Company and its Subsidiaries.
ARTICLE III
Admission to Participation
Sec. 3.01 Initial Participation. Any Eligible Employee may elect to be a
Participant and may become a Participant by executing and filing with the
Administrative Committee a Purchase Agreement at such time in advance and on
such forms as prescribed by the Administrative Committee. The effective date of
an Eligible Employee's participation shall be the Offering Date next following
the date on which the Administrative Committee receives from the Eligible
Employee a properly executed and timely filed Purchase Agreement. Participation
in the Plan will continue automatically from one Purchase Period to another
unless notice is given pursuant to Section 3.02.
Sec. 3.02 Voluntary Discontinuance of Participation. Any Participant may
voluntarily withdraw from the Plan by filing a Notice of Withdrawal with the
Administrative Committee at such time in advance as the Administrative Committee
may specify. Upon such withdrawal, there shall be paid to the Participant the
amount, if any, standing to his credit in his Stock Purchase Account.
Sec. 3.03 Involuntary Discontinuance of Participation. If a Participant
ceases to be an Eligible Employee, the entire amount, if any, standing to the
Participant's credit in his Stock Purchase Account shall be refunded to him.
Notwithstanding the foregoing, should a Participant cease to be an Eligible
Employee by reason of acquiring Temporary Inactive Status, such Participant may
continue to participate through the end of the Purchase Period during which such
status was acquired with respect to payroll deductions attributable to the
portion of the Purchase Period prior to the time such status was acquired.
Sec. 3.04 Readmission to Participation. Any Eligible Employee who has
previously been a Participant, who has discontinued participation, and who
wishes to be reinstated as a Participant may again become a Participant for any
subsequent Purchase Period by executing and filing with the Administrative
Committee, at such time in advance as the Administrative Committee shall
determine, a new Purchase Agreement on forms provided by the Administrative
Committee. Reinstatement to Participant status shall be effective no earlier
than the Offering Date that occurs six months following the Exercise Date for
the Purchase Period in which the Eligible Employee discontinued participation.
Notwithstanding the foregoing, readmission of any Eligible Employee may be
suspended for such time as may be necessary to comply with Rule 16b-3
promulgated under the Securities Exchange Act of 1934.
ARTICLE IV
Stock Purchase
Sec. 4.01 Reservation of Shares. There shall be 950,000 shares of Stock
reserved for the Plan, subject to adjustment in accordance with the antidilution
provisions hereinafter set forth. Except as provided in Section 5.02 hereof, the
aggregate number of shares that may be purchased under the Plan shall not exceed
the number of shares reserved for the Plan.
Sec. 4.02 Limitation on Shares Available. The maximum number of shares of
Stock that may be purchased for each Participant on an Exercise Date is the
least of (a) the number of shares of Stock that can be purchased by applying the
full balance of his Stock Purchase Account to such purchase of shares at the
Purchase Price (as hereinafter determined), or (b) the Participant's
proportionate part of the maximum number of whole shares of Stock available
within the limitation established by the maximum aggregate number of such shares
reserved for the Plan, as stated in Section 4.01 hereof. Notwithstanding the
foregoing, if any person entitled to purchase shares pursuant to any offering
hereunder would be deemed for the purposes of section 423(b)(3) of the Code to
own stock (including any number of shares that such person would be entitled to
purchase hereunder) possessing 5% or more of the total combined voting power or
value of all classes of stock of Company, the maximum number of shares that such
person shall be entitled to purchase pursuant to the Plan shall be reduced to
that number
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which, when added to the number of shares of Stock that such person is so deemed
to own (excluding any number of shares that such person would be entitled to
purchase hereunder), is one less than such 5%. Any portion of a Participant's
Stock Purchase Account that cannot be applied by reason of the foregoing
limitation shall remain in the Participant's Stock Purchase Account for
application to the purchase of Stock on the next Offering Date (unless withdrawn
before that Offering Date).
Sec. 4.03 Purchase Price of Shares. The Purchase Price per share of the
Stock sold to Participants pursuant to any Offering shall be the sum of (a) 85%
of the Market Value of such share on the Offering Date on which such Offering
commences or on the Exercise Date on which such Offering expires, whichever is
lower, and (b) any transfer, excise or similar tax imposed on the transaction
pursuant to which such share of Stock is purchased. If the Exercise Date with
respect to the purchase of Stock is a day on which the stock is selling
ex-dividend but is on or before the record date for such dividend, then for Plan
purposes the Purchase Price per share will be increased by an amount equal to
the dividend per share. In no event shall the Purchase Price be less than the
par value of the Stock.
Sec. 4.04 Exercise of Purchase Privilege.
(a) Subject to the provisions of Section 4.02 above, if on the date of the
last paycheck of a Participant issued prior to any Exercise Date there
is a credit balance in the Participant's Stock Purchase Account, there
shall be purchased for the Participant at the Purchase Price for the
Purchase Period that expires on such Exercise Date the largest number
of whole shares of Stock, as can be purchased with the entire amount
standing to the Participant's credit in his Stock Purchase Account on
such paycheck issue date. Each such purchase shall be deemed to have
occurred on the Exercise Date occurring at the close of the Offering
for which the purchase was made.
(b) Any amount remaining in the Stock Purchase Account on the Exercise
Date after the purchase of the maximum number of whole shares shall
remain in the Stock Purchase Account to the credit of the Participant
and applied to purchase additional shares of Stock on subsequent
Exercise Dates.
(c) Notwithstanding anything contained herein to the contrary, a
Participant may not during any calendar year purchase shares of Stock
having an aggregate Market Value, determined at the time of each
Offering Date during such calendar year, of more than $25,000.
Sec. 4.05 Establishment of Stock Purchase Account. Each Participant shall
authorize payroll deductions from Compensation for the purposes of funding his
Stock Purchase Account. In the Purchase Agreement, each Participant shall
authorize a deduction from each payment of his Compensation during a Purchase
Period, which deduction shall be not less than 1% nor more than 7% of the gross
amount of such payment, subject to Section 4.04(c). Subject to Section 3.02, a
Participant may not reduce or increase his payroll deduction rate during any
Purchase Period. However, a Participant may change the deduction to any
permissible level for any subsequent Offering by filing notice thereof at such
time preceding the Offering Date on which such subsequent Offering commences as
the Administrative Committee shall determine.
Sec. 4.06 Payment for Stock. The Purchase Price for all shares of Stock
purchased by a Participant under the Plan shall be paid out of the Participant's
Stock Purchase Account. As of each Exercise Date, the entire amount standing to
the credit of each Participant in his Stock Purchase Account on the date of the
last paycheck issued to the Participant prior to the Exercise Date in the
Purchase Period that expires on such Exercise Date shall be charged with the
aggregate Purchase Price of the shares of Stock purchased by such Participant on
the Exercise Date. No interest shall be paid or payable with respect to any
amount held in the Participant's Stock Purchase Account.
Sec. 4.07 Share Ownership; Issuance of Certificates.
(a) The shares purchased by a Participant on an Exercise Date shall, for
all purposes, be deemed to have been issued and/or sold at the close
of business on such Exercise Date. Prior to that time, none of the
rights or privileges of a stockholder of the Company shall inure to
the Participant with respect to such shares. All the shares of Stock
purchased under the Plan shall be delivered by the Company in a manner
as determined by the Administrative Committee.
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(b) The Administrative Committee, in its sole discretion, may determine
that the shares of Stock shall be delivered by the Company (i) by
issuing and delivering to the Participant a certificate for the number
of whole shares of Stock purchased by such Participant on an Exercise
Date or during a calendar year, or (ii) by issuing and delivering a
certificate or certificates for the number of shares of Stock
purchased by all Participants on an Exercise Date or during a calendar
year to a member firm of the New York Stock Exchange which is also a
member of the National Association of Securities Dealers, as selected
by the Administrative Committee from time to time, which shares shall
be maintained by such member firm in separate brokerage accounts of
each Participant, or (iii) by issuing and delivering a certificate or
certificates for the number of shares of Stock purchased by all
Participants on an Exercise Date or during the calendar year to a bank
or trust company or affiliate thereof, as selected by the
Administrative Committee from time to time, which shares shall be
maintained by such bank or trust company or affiliate in separate
accounts for each Participant or, if he designates on his Stock
Purchase Agreement, in his name jointly with his spouse, with right of
survivorship. A Participant who is a resident of a jurisdiction that
does not recognize such joint tenancy may have a certificate or
account in his name as tenant in common with his spouse, without right
of survivorship. Such designation may be changed by filing a notice
thereof signed by the Participant and his spouse. Such spouse shall be
bound by all of the terms and conditions of the Plan as if such spouse
were a Participant.
Sec. 4.08 Restrictions on Resale. Stock acquired under the Plan may not be
sold or otherwise disposed of for at least six months after the Exercise date on
which the shares were acquired, except in the case of death or disability. Any
Stock certificates delivered to a Participant prior to the expiration of such
six month period shall contain a legend to reflect such restriction.
ARTICLE V
Special Adjustments
Sec. 5.01 Shares Unavailable. If, on any Exercise Date, the aggregate funds
available for the purchase of Stock would purchase a number of shares in excess
of the number of shares then available for purchase under the Plan, the
following events shall occur:
(a) The number of shares that would otherwise be purchased by each
Participant shall be proportionately reduced on the Exercise Date in
order to eliminate such excess;
(b) The Plan shall automatically terminate immediately after the Exercise
Date as of which the supply of available shares is exhausted; and
(c) Any amount remaining in the Stock Purchase Account of each of the
Participants shall be repaid to such Participants.
Sec. 5.02 Antidilution Provisions. The aggregate number of shares of Stock
reserved for purchase under the Plan, as hereinabove provided, and the
calculation of the Purchase Price per share may be appropriately adjusted to
reflect any increase or decrease in the number of issued shares of Stock
resulting from a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend, or other increase or decrease in
such shares, if effected without receipt of consideration by the Company. Any
such adjustment shall be made by the Administrative Committee acting with the
consent of, and subject to the approval of, the Board.
Sec. 5.03 Effect of Certain Transactions. Subject to any required action by
the stockholders, if the Company shall be the surviving or resulting corporation
in any merger or consolidation, or if the Company shall be merged for the
purpose of changing the jurisdiction of its incorporation, any Offering
hereunder shall pertain to and apply to the shares of stock of the Company or
the survivor. However, in the event of a dissolution or liquidation of the
Company, or of a merger or consolidation in which the Company is not the
surviving or resulting corporation, the Plan and any Offering hereunder shall
terminate upon the effective date of such dissolution, liquidation, merger or
consolidation, and the balance then standing to the credit of each Participant
in his Stock Purchase Account shall be returned to him.
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ARTICLE VI
Miscellaneous
Sec. 6.01 Nonalienation. The right to purchase shares of Stock under the
Plan is personal to the Participant, is exercisable only by the Participant
during his lifetime except as hereinafter set forth, and may not be assigned or
otherwise transferred by the Participant. Notwithstanding the foregoing, there
shall be delivered to the executor, administrator or other personal
representative of a deceased Participant such shares of Stock and such residual
balance as may remain in the Participant's Stock Purchase Account as of the date
the Participant's death occurs. However, such representative shall be bound by
the terms and conditions of the Plan as if such representative were a
Participant.
Sec. 6.02 Administrative Costs. The Company shall pay all administrative
expenses associated with the operation of the Plan. No administrative charges
shall be levied against the Stock Purchase Accounts of the Participants.
Sec. 6.03 Collection of Taxes. The Company shall be entitled to require
any Participant to remit, through payroll withholding or otherwise, any tax that
it determines it is so obligated to collect with respect to the issuance of
Stock hereunder, or the subsequent sale or disposition of such Stock, and the
Administrative Committee shall institute such mechanisms as shall insure the
collection of such taxes.
Sec. 6.04 Administrative Committee. The Compensation Committee of the
Board shall appoint an Administrative Committee, which shall have the authority
and power to administer the Plan and to make, adopt, construe, and enforce rules
and regulations not inconsistent with the provisions of the Plan. The
Administrative Committee shall adopt and prescribe the contents of all forms
required in connection with the administration of the Plan, including, but not
limited to, the Purchase Agreement, payroll withholding authorizations,
withdrawal documents, and all other notices required hereunder. The
Administrative Committee shall have the fullest discretion permissible under law
in the discharge of its duties. The Administrative Committee's interpretations
and decisions in respect of the Plan, the rules and regulations pursuant to
which it is operated, and the rights of Participants hereunder shall be final
and conclusive.
Sec. 6.05 Amendment of the Plan. The Board may amend the Plan without the
consent of stockholders or Participants, except that any such action shall be
subject to the approval of the Company's stockholders at or before the next
annual meeting of stockholders for which the record date is after such Board
action if such stockholder approval is required by any federal or state law or
regulation or the rules of any stock exchange or automated quotation system on
which the Stock may then be listed or quoted, and the Board may otherwise, in
its discretion, determine to submit other such changes to the Plan to
stockholders for approval; provided, however, that, without the consent of an
affected Participant, no such action may materially impair the rights of such
Participant under any award theretofore granted to him.
Sec. 6.06 Termination of the Plan. The Plan shall continue in effect
unless terminated pursuant to action by the Board, which shall have the right to
terminate the Plan at any time without prior notice to any Participant and
without liability to any Participant. Upon the termination of the Plan, the
balance, if any, then standing to the credit of each Participant in his Stock
Purchase Account shall be refunded to him.
Sec. 6.07 Repurchase of Stock. The Company shall not be required to
purchase or repurchase from any Participant any of the shares of Stock that the
Participant acquired under the Plan.
Sec. 6.08 Notice. A Purchase Agreement and any notice that a Participant
files pursuant to the Plan shall be on the form prescribed by the Administrative
Committee and shall be effective only when received by the Administrative
Committee.
Sec. 6.09 Government Regulation. The Company's obligation to sell and to
deliver the Stock under the Plan is at all times subject to all approvals of any
governmental authority required in connection with the authorization, issuance,
sale or delivery of such Stock.
Sec. 6.10 Headings, Captions, Gender. The headings and captions herein are
for convenience of reference only and shall not be considered as part of the
text. The masculine shall include the feminine, and vice versa.
Sec. 6.11 Severability of Provisions; Prevailing Law. The provisions of
the Plan shall be deemed severable. In the event any such provision is
determined to be unlawful or unenforceable by a court of competent jurisdiction
or by reason of a change in an applicable statute,
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the Plan shall continue to exist as though such provision had never been
included therein (or, in the case of a change in an applicable statute, had been
deleted as of the date of such change). The Plan shall be governed by the laws
of the State of Delaware, to the extent such laws are not in conflict with, or
superseded by, federal law.
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Exhibit 5.1
March 16, 2000
Cotelligent, Inc.
101 California Street
San Francisco, California 94111
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Cotelligent, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") of a Registration Statement on Form
S-8, including the exhibits thereto (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"), for the registration by the
Company of 650,000 shares (the "Shares") of Common Stock, par value $.01 per
share, which may be issued under the Company's Employee Stock Purchase Plan
("Plan").
In connection with this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the Registration
Statement, the Plan, the Amended and Restated Certificate of Incorporation of
the Company, the Amended and Restated By-Laws of the Company, and such other
documents, records and other instruments of the Company as in our judgment are
necessary or appropriate for purposes of this opinion.
Based upon the foregoing, we are of the following opinion:
The Shares, when issued in accordance with the terms of the Plan, and for a
consideration per Share of not less than the 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 this consent, we do not 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 & Bockius
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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 report dated April
26, 1999 included in the Annual Report on Form 10-K of Cotelligent, Inc., for
the year ended March 31, 1999 and to all references to our Firm included in this
Registration Statement.
/s/Arthur Anderson LLP
----------------------
Arthur Andersen LLP
San Francisco, California
March 24, 2000
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