As Filed with the Securities and Exchange Commission on June 25, 2004
Registration No. 333-111550
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-3* TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COTELLIGENT, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 7373 | 94-3173918 | ||
| (State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
655 Montgomery Street, Suite 1000, San Francisco, California 94111
(415) 477-9900
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
JAMES R. LAVELLE
Chairman of the Board and Chief Executive Officer
Cotelligent, Inc.
655 Montgomery Street, Suite 1000
San Francisco, California 94111
(415) 477-9900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
GREGORY C. HILL, ESQ
Locke Liddell & Sapp LLP
3400 Chase Tower
600 Travis Street
Houston, Texas 77002-3095
(713) 226-1200
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after the effective time of this Registration Statement
If the securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following bow. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or reinvestment plans, please check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. ¨
This post-effective amendment to the registration statement shall become effective upon order of the Commission pursuant to Section 8(c) of the Securities Act of 1933.
| * | Filed as a Post-Effective Amendment No. 1 on Form S-3 to such Form S-4 Registration Statement pursuant to the provisions of Rule 401(e) and the procedure described therein. See “Introductory Statement Not Forming Part of the Prospectus.” |
INTRODUCTORY STATEMENT NOT FORMING PART OF THE PROSPECTUS
Cotelligent, Inc., a Delaware corporation (“Cotelligent”, “we”, “our” or the “Company”), filed a Registration Statement on Form S-4 (No. 333-111550) (the “Registration Statement”) on February 4, 2004 relating to common stock to be issued in connection with the merger (the “Merger”) of On-Site Media, Inc., a Delaware corporation (“On-Site”), with and into Watchit Media USA, Inc., a Delaware corporation and wholly-owned subsidiary of Cotelligent (“Watchit Media”), which was consummated on March 2, 2004, including shares of common stock to be issued on exercise of warrants issued to On-Site shareholders as part of the merger consideration.
Pursuant to the merger agreement by and among Cotelligent, Watchit Media, On-Site and Certain of the Stockholders of On-Site, former holders of On-Site common stock ( “On-Site Common Stock”) elected to receive, in exchange for each issued and outstanding share of On-Site Common Stock, either (i) the equity election of 0.3107402973 equity units of Cotelligent which is comprised of 0.6214805946 shares of Cotelligent common stock, and 0.3107402973 warrant shares, or (ii) the cash/equity election of cash equal to $650,000 divided by the total number of shares of On-Site Common Stock making the cash/equity election, and the remaining equity units divided by the total number of shares of On-Site Common Stock making the cash/equity election.
Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there by any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED 25, 2004
PROSPECTUS
COTELLIGENT, INC.
5,339,806 Shares of Common Stock
This prospectus relates to up to 5,339,806 shares of Cotelligent Common Stock, par value $0.01 per share, issuable upon exercise of currently outstanding warrants issued in connection with Merger of Watchit Media and On-Site (the “Warrants”).
The selling stockholders identified on pages 9-27 may from time to time offer all or a portion of shares covered by this prospectus through public or private transactions, on the OTC Bulletin Board or such other securities exchange on which our common stock is traded at the time of the sale. The selling stockholders may sell these shares of common stock at prevailing market prices or at privately negotiated prices either directly or through agents, broker dealers or otherwise. You may find more information concerning how the selling stockholders may sell these shares under the caption “Plan of Distribution.”
If all of the shares of our common stock issuable upon exercise of the Warrants and offered hereby are resold by the selling stockholders, we will receive aggregate gross proceeds of approximately $1.3 million. We are paying all of the expenses of registration incurred in connection with this offering, but the selling stockholders will pay all selling and other expenses.
Our common stock is quoted on the OTC Bulletin Board under the symbol “CGZT.OB”. On June 21, 2004, the last reported sale price of our common stock on the OTC Bulletin Board was $0.18 per shares.
Beginning on page 3, we have listed several “Risk Factors” which you should consider. You should read the entire prospectus carefully before you make your investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities or passed on the adequacy or accuracy of this prospectus and any representation to the contrary is a criminal offense.
The Date of this Prospectus is June 25, 2004
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission, or SEC. You may read and copy any document we file at the SEC’s public reference room at Judiciary Plaza Building, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information about the public reference room. Our filings are also available over the Internet at the SEC’s website at http://www.sec.gov.
We filed with the SEC a Registration Statement on Form S-4 (together with all amendments, supplements, exhibits and schedules thereto, including this Post-Effective Amendment No. 1 on Form S-3, the “Registration Statement) under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the shares of our common stock issuable upon exercise of Warrants offered hereby. This prospectus does not contain all the information set forth in the Registration Statement, as certain items are omitted in accordance with the rules and regulations of the SEC. For further information pertaining to Cotelligent, On-Site, our common stock and the Warrants, reference is made to the Registration Statement. Statements contained herein regarding the contents of any agreement or other document are not necessarily complete, and in each instance reference is made to the copy of such agreement or document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. You can get a copy of the Registration Statement from the SEC at the address listed above or from its Internet site.
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring to those documents. The documents we incorporate by reference are considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this incorporated information.
We incorporate by reference the documents listed below:
| • | Our annual report on Form 10-K for the fiscal year ended December 31, 2003 (filed with the SEC on April 14, 2004); |
| • | Our quarterly report on Form 10-Q for the quarter ended March 31, 2004 (filed with the SEC on May 17, 2004); |
| • | Our current report on Form 8-K filed with the SEC on March 5, 2004, May 14, 2004, and June 14, 2004, and our current report on Form 8-K/A filed with the SEC on May 3, 2004; and |
| • | The description of our common stock set forth in our registration statement on Form S-1 filed on November 8, 1996, including any amendment or report filed for purposes of updating that description. |
We also disclose information about us through current reports on Form 8-K that are furnished to the SEC to comply with Regulation FD. This information disclosed in these reports is not considered to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, is not subject to the liabilities of that section and is not incorporated by reference herein.
At your request, we will provide you with a free copy of any of these filings (except for exhibits, unless the exhibits are specifically incorporated by reference into the filing). You may request copies by writing or telephoning us at:
Cotelligent, Inc.
655 Montgomery Street, Suite 1000
San Francisco, California 94111
Attn: Curtis Parker
(415) 477-9900
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You should consider carefully the following risk factors, along with the other information contained or incorporated by reference in this prospectus, in deciding whether to invest in our shares. These factors, among others, may cause actual results, events or performance to differ materially from those expressed in any forward-looking statements we make in this prospectus.
If we are unable to generate positive cash flow and return to profitability in the near term, we may exhaust our capital.
We have experienced a general reduction in demand for our services. At the same time, we have taken action to divest non-strategic operations and have used the cash proceeds from these divestitures to pay off debt obligations. As a result, we have had adequate working capital to fund our needs as we restructured the business. However, our business has incurred net losses and negative operating cash flows in each of the past three years and our working capital and available cash have also decreased in each of the past three years. For fiscal years ended December 31, 2003, 2002, and 2001, we reported net losses of $12.4 million, $8.7 million, and $23.5 million, respectively. Our cash resources are limited and if our business does not begin to generate revenue, a positive cash flow and return to profitability in the near term, our on-going liquidity and financial viability would be materially adversely affected and we may not be able to pursue our business strategy.
If the electronic business (“eBusiness”), mobile business (“mBusiness”) and Web services markets do not continue to develop, or if their development is delayed, our business could be harmed.
Our future revenues will depend on the development of the eBusiness, mBusiness and Web services markets. The failure of these markets to materialize, or a delay in the development of these markets, could seriously harm our business. Although there has been widespread adoption of the Internet, critical issues concerning the commercial use of the Internet, such as security, reliability, cost, accessibility and quality of service continue to evolve and unforeseen factors may negatively affect the growth of Internet use or the attractiveness of commerce and business communications over the Internet. The success of mBusiness depends on acceptance of wireless data applications for commercial use, the quality of telecommunications and availability of devices supporting wireless applications. Critical issues in the wireless industry include security, cost, accessibility and reliability of service, and further development of wireless technology standards.
If the narrowcasting market does not continue to develop, our business could be harmed.
Our ability to generate revenue in future periods will increasingly depend upon the market for narrowcasting services, solutions and products. There is a risk that the market for narrowcasting services, solutions and products will not materialize. Critical issues concerning the use of computer hardware and software platforms as well as other video equipment and media, their security, reliability, cost, accessibility and quality continue to evolve. The variability of these factors could materially affect our ability to compete in the market, resulting in an adverse effect on our consolidated financial position, results of operations and cash flows.
We have a limited operating history in the mBusiness and Web services markets.
The uncertainty of our future performance in these markets may impact our ability to market and sell mBusiness and Web services solutions to prospective clients, which would adversely affect our consolidated financial position, results of operations and cash flows.
We may make acquisitions, which if proven unsuccessful, could negatively affect our future profitability and growth.
We believe the economic landscape has created opportunity for us to invest in, or acquire businesses that have undergone severe downward pressure in revenues, profit, cash and stock price. We may not be able to identify, acquire or profitably manage additional businesses that we may invest in or acquire without substantial costs, delays or other problems. In addition, acquisitions may involve a number of special risks, including:
| • | diversion of management’s attention; |
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| • | failure to retain key acquired personnel; and |
| • | risks associated with unanticipated events, circumstances or legal liabilities. |
In addition, if the acquired businesses have operating losses or negative operating cash flow, our ability to achieve positive cash flow and profitability, as well as our liquidity, could be adversely affected. Some or all of these risks could adversely affect our operations and financial performance. For example, client satisfaction or performance problems at a single acquired business could adversely affect our reputation and financial results. Further, any businesses acquired in the future may not achieve anticipated revenues and earnings and therefore negatively impact our consolidated financial position, results of operations and cash flows.
Our future growth and ability to differentiate Cotelligent from our competition is, in part, dependent upon our success in developing, marketing and selling our mobile management solution services.
We are marketing and selling mobile management solutions and services. Some of these efforts in the past year have not been successful. In addition, our resources in the mobile management solution area are limited. Nevertheless, we continue to focus on this business as we believe it represents significant opportunity. If we are not able to stay abreast of technical advancements in the market or deliver these solutions and services, our consolidated financial position, results of operations and cash flows could suffer.
Our software applications may not work as intended.
Part of our strategy is to provide synchronization and transfer of information between disparate systems, platforms and devices, and rapidly implement mobile business solutions. If our software products, including our JASware™ products and FastTrack™ framework, do not work as intended, we will be unable to provide these solutions to our clients and our consolidated financial position, results of operations and cash flows would be adversely affected.
We may need to invest heavily in research and development to keep our software applications viable.
We may need to invest heavily in research and development to keep our software applications and solutions viable in the rapidly changing markets in which we operate. This research and development effort may require significant resources and may not be successful. The investment of significant resources in research and development could adversely affect our liquidity. In addition, our business may be adversely affected if our investment does not result in the development of software applications and solutions that can be used in providing information technology (“IT”) solutions to our clients, resulting in an adverse impact on our consolidated financial position, results of operations and cash flows.
We may be unable to protect our proprietary technology.
Our success in providing mBusiness and Web services solutions depends, in part, upon our proprietary software applications and other intellectual property rights. We rely on a combination of trade secrets, nondisclosure, other contractual arrangements, copyright and trademark laws to protect our proprietary rights. We enter into confidentiality agreements with our employees, consultants and clients, and limit access to and distribution of our proprietary information. We cannot be certain that the steps we take in this regard will be adequate to deter misappropriation of our proprietary information or that we will be able to detect unauthorized use and take appropriate steps to enforce our intellectual property rights. In addition, although we believe that our services and products do not infringe on the intellectual property rights of others, infringement claims may be asserted against us in the future, and, if asserted, these infringement claims may be successful. A successful claim against us could materially adversely affect our business and consolidated financial position, results of operations and cash flows.
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We may not be able to establish successful partnerships or strategic alliances, and partnerships and strategic alliances we do establish may not be successful.
Part of our strategy is to form partnerships and strategic alliances with entities that have complementary products, services or technologies which can help us provide complete IT solutions to our clients. Even if we identify suitable candidates, we may not be able to form partnerships or alliances on reasonable commercial terms. In addition, any partnerships or alliances we do establish may not complement our business or help us provide IT solutions to our clients. If we fail to establish successful partnerships or strategic alliances, our ability to provide clients with complete IT solutions could be adversely affected.
We are subject to rapid changes in technology and client preferences.
Our market is characterized by rapidly changing technology, changes in client requirements and preferences, frequent new product and service announcements, and evolving new industry standards and practices that could render our custom software development skills obsolete. Our success will depend, in part, on our ability to acquire or license leading technologies useful in our business; develop new software solutions and technology that address the increasingly sophisticated and varied needs of existing and prospective clients; and respond to technological advances and evolving industry standards and practices on a cost-effective and timely basis. Custom application software development for our clients entails significant technical, financial and business risks. To be successful, we must adapt to the rapidly changing market by continually improving the performance and reliability of software applications for our clients. We could also incur substantial costs to modify our software applications to adapt to these changes. Our consolidated financial position, results of operations and cash flows could be adversely affected if we incurred significant costs without adequate results.
We are subject to government regulation and legal uncertainties.
Our business may be affected by regulations and laws directly applicable to the Internet. The application of existing laws and regulations to us relating to issues such as user privacy, pricing, taxation, content regulation and quality of products and services can be unclear. In addition, we will also be subject to new laws and regulations directly applicable to our activities. Any existing or new legislation applicable to our business could reduce the rate of growth of the Internet, which could materially adversely affect our consolidated financial position, results of operations and cash flows.
Our clients may cancel or delay spending on IT solution initiatives because of the current economic climate.
Since the second half of 2000, many companies have experienced financial difficulties or uncertainty and have canceled or delayed spending on technology consulting initiatives as a result. Furthermore, the severe financial difficulties which many start-up Internet companies have experienced have further reduced the perceived urgency by larger companies to begin or continue technology initiatives. If large companies continue to cancel or delay their technology consulting initiatives because of the current economic climate, or for other reasons, our business and consolidated financial position, results of operations and cash flows could be adversely affected.
Our revenues and financial condition may be adversely affected by the loss of business from significant clients.
Our revenues are primarily derived from services provided in response to client requests or on an assignment-by-assignment basis. A significant portion of our revenues come from engagements, which are terminable at any time by our clients, generally without penalty. In addition, for the year ended December 31, 2003, our largest client, Kraft Foods, accounted for approximately 21% of our revenues, and our second largest client, third largest client and ten largest clients accounted for approximately 20%, 13% and 83%, respectively, of our revenues. Our clients may not continue to engage us for projects or use our services at historical levels, if at all. If we lose a major client or suffer a reduction in business, our revenues and financial condition may be adversely affected.
If we fail to continue to attract and retain qualified IT professionals, it could harm our business.
Our success depends upon our ability to attract, hire and retain technical consultants, software developers, software engineers and project managers who possess the necessary skills and experience to conduct our business. We continually identify, screen and retain qualified IT professionals to keep pace with client demand for rapidly
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evolving technologies and varying client needs. We compete for these professionals with our clients, other providers of software solutions and services, systems integrators, providers of outsourcing services, computer systems consultants and temporary staffing companies in a variety of industry segments. Competition for individuals with proven technical skills is intense. In the past, we have experienced difficulties in identifying and retaining qualified IT professionals and, in some instances, we were unable to meet requests for services. We cannot assure that qualified IT professionals will continue to be available to us in sufficient numbers.
Our success is dependent on our key management personnel.
Our operations are dependent on the continued efforts of our executive officers and senior management. In addition, we will likely depend on the senior management of any business we may merge with or acquire in the future. If any of these people are unable or unwilling to continue in his or her present role, or if we are unable to hire, train and integrate new management personnel effectively, our business and consolidated financial position, results of operations and cash flows could be adversely affected. We do not maintain key person life insurance on our Chief Executive Officer or other members of our senior management.
We face intense competition that could adversely affect our ability to generate revenue and profitability.
We compete with companies that seek to provide solutions to extend the functionality of a company’s enterprise IT system and those that provide mobility solutions. On any project, our competitors will depend, in part, on the industry and/or technology niche needed for the particular client’s business. Our competitors include local, regional and national software firms, IT consulting firms, system integration firms, professional service divisions of application software firms and the professional service groups of computer equipment companies. We may also compete with larger system integrators. Many of our competitors have greater technical, financial or marketing resources than we have. In addition, we intend to enter new markets and expand our solutions and services offerings through internal growth and acquisitions, and we expect to encounter additional competition from established companies in these areas. If we cannot compete effectively in our industry, our consolidated financial position, results of operations and cash flows could be adversely affected.
We do not have a credit facility in place as we operate from existing cash resources.
When we paid off our bank loan on June 30, 2000, our credit facility was terminated. Prior to June 30, 2000, we relied on our credit facility and positive cash flow to satisfy our liquidity needs. We have not secured additional financing and plan to continue operating using our existing cash resources and cash resources generated from the collection of our accounts receivable. Should we find ourselves in need of more cash, we would have to seek financing and might, as a result, have a short-term liquidity problem. Additionally, we may not be successful in securing financing, or if successful, the terms may not be advantageous to us.
We face potential liability due to the project nature of our business which often requires our IT professionals to work at our clients’ place of business.
Our IT professionals are often deployed in the workplace of other businesses. As a result of this activity, we could be subject to possible claims of discrimination and harassment, employment of illegal aliens or other similar claims. These types of claims could result in negative publicity for us and money damages or fines. Although we have not had any significant problems in this area, we could encounter these problems in the future.
We are also exposed to liability for actions of our IT professionals while on assignment, including damages caused by employee errors, misuse of client-proprietary information or theft of client property. Because of the nature of our assignments and the related potential liability, we cannot assure that insurance we maintain, if continually available, will be sufficient in amount or scope to cover a loss.
We may not realize fully the cost savings and other benefits it expects to realize as a result of the merge with On-Site. This may adversely affect our earnings and financial condition.
Although we expect significant benefits to result from the Merger with On-Site, Cotelligent may not realize any of these anticipated benefits. The Merger involves the integration of two companies that have previously operated independently. The value of our common stock following consummation of the Merger may be affected by
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the degree of success in achieving the benefits expected to result from consummation of the Merger. Achieving these benefits will depend in part upon meeting the challenges inherent in the successful combination of two business enterprises and upon the possible resulting diversion of management attention for an extended period of time. Challenges like these may not be met and may negatively impact our operations following the Merger. Delays encountered in the transition process could have a material adverse effect on our consolidated financial position, results of operations and cash flows.
Customer uncertainty related to the Merger with On-Site could harm the combined company.
Ours or On-Site’s customers may, in response to the consummation of the Merger, delay or defer purchasing decisions. Any delay or deferral in purchasing by ours or On-Site’s customers could adversely affect the consolidated financial position, results of operations and cash flows of the combined company.
The market price of our common stock may decline as a result of the Merger with On-Site.
The market price of our common stock could decline as a result of the Merger, based on the occurrence of a number of events, including:
| • | the failure to successfully integrate On-Site into us; and |
| • | delays or failure in the integration of On-Site and our technology |
We may not receive any proceeds from the exercise of the Warrants issued in connection with the acquisition of On-Site.
If all of the shares of our common stock issuable upon exercise of the Warrants and offered hereby are resold by the selling stockholders, we will receive aggregate gross proceeds of approximately $1.3 million. Given the historical share price and market for Cotelligent common stock, there is no way to know whether the Warrants will be in-the-money during the two years following the closing of the Merger. Consequently, we cannot predict whether the Warrants will be exercised prior to their expiration or whether any funds from their exercise will be made available to us at anytime in the future. Additionally, the exercise of Warrants will have dilutive effect on the holders of our common stock.
We may lose certain tax attributes as a result of the Merger.
At December 31, 2003, we had available net operating loss (NOL) carry-forwards of approximately $35.7 million. Under Section 382 of the Internal Revenue Code of 1986, as amended, the use of prior losses, including NOLs, is limited if a corporation undergoes an “ownership change.” The Merger, together with future issuances of equity interests by us or the exercise of outstanding Warrants or options to purchase our stock, may result in an ownership change that is large enough for this limitation to apply. If the limitation applies, we may be unable to use a material portion of its available NOL carry-forwards to reduce future taxable income.
Certain statements included in this prospectus and in the documents that we have incorporated by reference that are not historical facts are intended to be “forward-looking statements.” Such forward-looking statements may include statements that relate to:
| • | our business plans or strategies, and projected or anticipated benefits or other consequences of such plans or strategies; |
| • | our objectives; |
| • | projected and anticipated benefits from future or past acquisitions; and |
| • | projections involving anticipated capital expenditures or revenues, earnings or other aspects of capital projects or operating results. |
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Forward-looking statements generally can be identified by the use of words such as “may,” “will,” “expect,” “intend,” “estimate,” “anticipate” or “believe” or similar language.
Forward-looking statements are not guarantees of future performance and all phases of our operations are subject to a number of uncertainties, risks and other influences, many of which are beyond our control. Any one of such influences, or a combination, could materially affect the results of our operations and the accuracy of the forward-looking statements that we make. Some important factors that could cause actual results to differ materially from the anticipated results or other expectations expressed in our forward-looking statements are discussed under the caption “Risk Factors” beginning on page 3. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date that they are made. We undertake no obligation to publicly update our forward-looking statements.
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If all of the shares of our common stock issuable upon exercise of the Warrants and offered hereby are resold by the selling stockholders, we will receive aggregate gross proceeds of approximately $1.3 million. We cannot be certain that any or all of the warrants will be exercised. We intend to use any such proceeds for working capital purposes.
We are registering for resale shares of our common stock issuable upon exercise of the Warrants held by the stockholders identified below. The following table sets forth the names of the selling stockholders, the number of shares of Cotelligent Common Stock beneficially owned by the selling stockholders as of June 21, 2004 and the number of shares that may be offered pursuant to this prospectus.
This table is prepared based on information supplied to us by the selling stockholders and On-Site and assumes the sale of all of the resale shares. The number of shares beneficially owned by each selling stockholder is determined under the rules promulgated by the SEC, and is not necessarily indicative of beneficial ownership for any other purpose.
We do not know how long the selling stockholders will hold the shares before selling them, and we currently have no agreements, arrangements or understandings with any of the selling stockholders regarding the sale of any of the shares. The shares offered by this prospectus may be offered from time to time by the stockholders listed below.
The applicable percentages of ownership listed below are based on 24,861,625 shares of our common stock outstanding as of June 21, 2004.
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Owned After |
Percentage of are Sold |
|||||||
| Dean C. Acord & Lorraine J. Acord JTROS |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Erin Almond & Steven Toth JTTEN |
74,577 | 0.3 | % | 24,859 | 49,718 | 0.2 | % | |||||
| Bernard C. Andrews 2108 Bay Hill Dr. |
186,444 | 0.7 | % | 62,148 | 124,296 | 0.5 | % | |||||
| Philip J. Andrews |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Kathleen Andrews |
13,983 | 0.0 | % | 4,661 | 9,322 | 0.0 | % | |||||
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| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Stephen Antos & Pamela Antos JTROS |
3,727 | 0.0 | % | 1,242 | 2,485 | 0.0 | % | |||||
| J. Sheldon Artz |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Greg A. Ashby |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| Gary Baldwin |
51,271 | 0.2 | % | 17,090 | 34,181 | 0.1 | % | |||||
| Kelly P. Barker |
14,448 | 0.0 | % | 4,816 | 9,632 | 0.0 | % | |||||
| Eddie M. Bargar |
2,329 | 0.0 | % | 776 | 1,553 | 0.0 | % | |||||
| Brent Bell & Suzanne Bell JTTEN |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Terry Bell |
372,888 | 1.5 | % | 124,296 | 248,592 | 1.0 | % | |||||
| Terry Bell & Linda Bell TTEES |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Christian J. Beres |
11,185 | 0.0 | % | 3,728 | 7,457 | 0.0 | % | |||||
| Brian D. Beres |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| James E. Beres Jr. |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Francillia Blanchard |
174 | 0.0 | % | 58 | 116 | 0.0 | % | |||||
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| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Louis Anthony Blanchard |
174 | 0.0 | % | 58 | 116 | 0.0 | % | |||||
| Franc Bonatti |
465 | 0.0 | % | 155 | 310 | 0.0 | % | |||||
| David Boyd |
11,652 | 0.0 | % | 3,884 | 7,768 | 0.0 | % | |||||
| Harlan D. Braaten & Kay M. Braaten TTEE Braaten Family Revocable Trust DTD 06/16/94 |
186,444 | 0.6 | % | 62,148 | 124,296 | 0.5 | % | |||||
| Irwin I & VM Bronstein Revocable Trust |
442,747 | 1.8 | % | 147,582 | 295,165 | 1.2 | % | |||||
| Harvey Brown |
4,663 | 0.0 | % | 1,554 | 3,109 | 0.0 | % | |||||
| Michael Browning |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Kent L. Buckner |
1,398 | 0.0 | % | 466 | 932 | 0.0 | % | |||||
| Cathy L. Burke |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Gregory C. Burkett |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Casco Bay Group |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.3 | % | |||||
| Steve Caria |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
11
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Michael D. Carothers |
7,456 | 0.0 | % | 2,485 | 4,971 | 0.0 | % | |||||
| Benjamin G. Carter |
7,084 | 0.0 | % | 2,361 | 4,723 | 0.0 | % | |||||
| Benjamin Carter |
5,592 | 0.0 | % | 1,864 | 3,728 | 0.0 | % | |||||
| Charles E. Cashmore |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Chuck Cashmore |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Vince J. Ciffa |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Dennis Cline & Anna-Marie Cline TEN ENT |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Robert Colton |
206,278 | 0.8 | % | 68,759 | 137,519 | 0.6 | % | |||||
| Eric A. Colton |
59,503 | 0.2 | % | 19,834 | 39,669 | 0.2 | % | |||||
| Stephen H. Colton |
19,834 | 0.1 | % | 6,611 | 13,223 | 0.1 | % | |||||
| Richard T. Connerton |
7,456 | 0.0 | % | 2,485 | 4,971 | 0.0 | % | |||||
| James Conway |
1,117 | 0.0 | % | 372 | 745 | 0.0 | % | |||||
| Frank W. Cornett |
19,834 | 0.1 | % | 6,611 | 13,223 | 0.1 | % | |||||
| Joseph Criscuolo |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
12
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Matthew Cuda |
23,305 | 0.1 | % | 7,768 | 15,537 | 0.1 | % | |||||
| Thomas J. Culligan III TTEE The Thomas J. Culligan III Trust U/A DTD 09-16-02 |
186,444 | 0.7 | % | 62,148 | 124,296 | 0.5 | % | |||||
| Deborah J. Culligan TTEE The Deborah J. Culligan Trust U/A DTD 09-16-02 |
3,727 | 0.0 | % | 1,242 | 2,485 | 0.0 | % | |||||
| Michael F. Dalberth |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| Nick Damato |
24,703 | 0.1 | % | 8,234 | 16,469 | 0.1 | % | |||||
| John A. Dana |
2,796 | 0.0 | % | 932 | 1,864 | 0.0 | % | |||||
| P. Brent Dana |
26,412 | 0.1 | % | 8,804 | 17,608 | 0.1 | % | |||||
| Aaron J. Dana |
558 | 0.0 | % | 186 | 372 | 0.0 | % | |||||
| Brittany L. Dana |
558 | 0.0 | % | 186 | 372 | 0.0 | % | |||||
| Phillip Brent Dana & Wendi Dana JTTEN |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Brent Dana II & Wendi L. Dana JTTEN |
6,525 | 0.0 | % | 2,175 | 4,350 | 0.0 | % | |||||
| David B. Radden and Anne L. Radden Trust UAD 9/5/1989 |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
13
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Tabitha Lawrence Davis |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Roger F. Debbaut |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Barbara Delaney |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| John D. Desarbo |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Jack Donovan |
23,305 | 0.1 | % | 7,768 | 15,537 | 0.1 | % | |||||
| Bob & Pamela Downey Trust DTD 5/10/95 Bob or Pamela Downey TTEES |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| James W. Duncan Jr. |
5,592 | 0.0 | % | 1,864 | 3,728 | 0.0 | % | |||||
| Harvell C. Duncan & Tracey A. Duncan JTTEN |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Carol P. Durkin |
745 | 0.0 | % | 248 | 497 | 0.0 | % | |||||
| Carol P. Durkin C/F Trace A. Kirchner |
372 | 0.0 | % | 124 | 248 | 0.0 | % | |||||
| Carol P. Durkin C/F Cassidy L. K Kirchner |
372 | 0.0 | % | 124 | 248 | 0.0 | % | |||||
| Brian Edmonds |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
14
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Nickie Edwards TOD Norm Pool |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Jerry Englel |
60,594 | 0.2 | % | 20,198 | 40,396 | 0.2 | % | |||||
| Engel Mgmt Ltd MPPP Jerry Engel TTEE |
23,305 | 0.1 | % | 7,768 | 15,537 | 0.1 | % | |||||
| Jim Eubanks |
5,592 | 0.0 | % | 1,864 | 3,728 | 0.0 | % | |||||
| Peter L Evans |
83,899 | 0.3 | % | 27,966 | 55,933 | 0.2 | % | |||||
| Peter Fanara |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Jonathon Farren |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Lynn Fitzpatrick |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Matthew Fleming |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Paul Jeffery Frichette |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Mary L. Galindo & Cesar Galindo JTTEN |
9,916 | 0.0 | % | 3,305 | 6,611 | 0.0 | % | |||||
| Keith E. Galliher, Jr. Linda Lee Galliher JTROS |
26,101 | 0.1 | % | 8,700 | 17,401 | 0.1 | % | |||||
| Keith Galliher Jr. |
2,460 | 0.0 | % | 820 | 1,640 | 0.0 | % | |||||
15
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Barbara Georges |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Gerald Gess & Gertrude Gess JTROS |
74,577 | 0.3 | % | 24,859 | 49,718 | 0.2 | % | |||||
| Harry Gibbs |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Rose Gibson |
1,398 | 0.0 | % | 466 | 932 | 0.0 | % | |||||
| James E. Goodman |
932,220 | 3.7 | % | 310,740 | 621,480 | 2.5 | % | |||||
| Candy L. Goodman |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Patricia Gorelangton & Mike Gorelangton JTTEN |
2,796 | 0.0 | % | 932 | 1,864 | 0.0 | % | |||||
| Jeff Groll & Cherie Groll JTTEN |
74,577 | 0.3 | % | 24,859 | 49,718 | 0.2 | % | |||||
| Gerry K. Grotenhuis |
149,154 | 0.6 | % | 49,718 | 99,436 | 0.4 | % | |||||
| John T. Gumbs |
372 | 0.0 | % | 124 | 248 | 0.0 | % | |||||
| Marty Hall |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Hall 1991 Unitrust Gloria M Hall TTEE |
23,305 | 0.1 | % | 7,768 | 15,537 | 0.1 | % | |||||
16
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Ronald L. Hansen |
55,932 | 0.2 | % | 18,644 | 37,288 | 0.1 | % | |||||
| Steven D. Hardesty |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Billie Harris |
2,982 | 0.0 | % | 994 | 1,988 | 0.0 | % | |||||
| Martha Harris Gordon |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| George L. Hartwick |
60,594 | 0.2 | % | 20,198 | 40,396 | 0.2 | % | |||||
| Kimberly Havins |
64,654 | 0.3 | % | 21,551 | 43,103 | 0.2 | % | |||||
| Billie Havins Trustee Albee Family Estate Trust DTD 10/16/90 |
11,185 | 0.0 | % | 3,728 | 7,457 | 0.0 | % | |||||
| Shelia Hawkins & Truman Hawkins JTTEN |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| Boyce Head |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Charles H. Hemstreet & Beverly Hemstreet JTTEN |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Mark T. Hoffman |
13,050 | 0.0 | % | 4,350 | 8,700 | 0.0 | % | |||||
| Patrick J. Horner Jr. |
4,957 | 0.0 | % | 1,652 | 3,305 | 0.0 | % | |||||
17
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Kathy James & Chester James JTTEN |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Franita P. Johnson |
1,117 | 0.0 | % | 372 | 745 | 0.0 | % | |||||
| Robert E. Jones & Jacqueline A. Dauk JTWROS |
7,456 | 0.0 | % | 2,485 | 4,971 | 0.0 | % | |||||
| Robert E. Jones & Jackie A Dauk JTWROS |
3,727 | 0.0 | % | 1,242 | 2,485 | 0.0 | % | |||||
| Rodney E. Jones & Janet I. Jones JTWROS |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Vanessa Maree Kammuller |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| Brian Keenan |
27,966 | 0.1 | % | 9,322 | 18,644 | 0.1 | % | |||||
| Krista Kelly |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Karen M. Killpack |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Kiney Family LLC Larry J. Kiney |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Larry J. Kiney |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Robert T. Knott Jr. |
2,796 | 0.0 | % | 932 | 1,864 | 0.0 | % | |||||
18
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Gretchen Kuglin & Eric Kuglin JTTEN |
74,577 | 0.3 | % | 24,859 | 49,718 | 0.2 | % | |||||
| Larry Kurofsky & Tabitha Kurofsky JTROS |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Richard Langlois |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Frank D. Larsen |
5,949 | 0.0 | % | 1,983 | 3,966 | 0.0 | % | |||||
| John Larson & Debra Larson JTTEN |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Las Vegas Venture Fund 1 LLC |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| William W. Lattin |
19,834 | 0.1 | % | 6,611 | 13,223 | 0.1 | % | |||||
| Ron Lurie |
4,324 | 0.0 | % | 1,441 | 2,883 | 0.0 | % | |||||
| William H. Lennon |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| John Leonard |
10,254 | 0.0 | % | 3,418 | 6,836 | 0.0 | % | |||||
| Marc Loveman |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Ron Lurie & Beverly Lurie JTTEN |
5,592 | 0.0 | % | 1,864 | 3,728 | 0.0 | % | |||||
19
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Eleanor Luire & Arthur Lurie JTTEN |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Diane Lynch |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Michael Martin |
186 | 0.0 | % | 62 | 124 | 0.0 | % | |||||
| David Mason |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Kenneth L. Maul |
1,467,636 | 5.8 | % | 489,212 | 978,424 | 3.9 | % | |||||
| Betty McCubbin |
2,982 | 0.0 | % | 994 | 1,988 | 0.0 | % | |||||
| Kareem McMillan |
465 | 0.0 | % | 155 | 310 | 0.0 | % | |||||
| Daniel J. Mertens |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Karl J. Mitchell |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Kathleen Culligan Mogavero |
3,727 | 0.0 | % | 1,242 | 2,485 | 0.0 | % | |||||
| Raymond Mondora |
61,525 | 0.2 | % | 20,508 | 41,017 | 0.2 | % | |||||
| Holly A. Geyer |
61,525 | 0.2 | % | 20,508 | 41,017 | 0.2 | % | |||||
| William Moore |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
20
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| William Moore 1991 Family Trust |
87,519 | 0.4 | % | 29,173 | 58,346 | 0.2 | % | |||||
| William M. Moore 19912 Family Trust |
69,916 | 0.3 | % | 23,305 | 46,611 | 0.2 | % | |||||
| Dennis L. Moreau & Olga S Moreau JTWROS |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| James B. Morris |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| James B. Morris |
23,305 | 0.1 | % | 7,768 | 15,537 | 0.1 | % | |||||
| Kelly Murdock |
4,957 | 0.0 | % | 1,652 | 3,305 | 0.0 | % | |||||
| Gregory Michael Murphy |
2,236 | 0.0 | % | 745 | 1,491 | 0.0 | % | |||||
| Sunny Nealy |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Michael E. O’Brien |
9,694 | 0.0 | % | 3,231 | 6,463 | 0.0 | % | |||||
| Michael E. O’Brien C/F Emily J. Poole |
372 | 0.0 | % | 124 | 248 | 0.0 | % | |||||
| Michael E. O’Brien C/F Olivia J. Poole |
372 | 0.0 | % | 124 | 248 | 0.0 | % | |||||
| Michael E. O’Brien C/F Lindsay A. Sanders |
372 | 0.0 | % | 124 | 248 | 0.0 | % | |||||
21
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Michael E. O’Brien C/F Ryan J. Sanders |
372 | 0.0 | % | 124 | 248 | 0.0 | % | |||||
| John D. O’Brien |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Kareen Culligan Paine |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| David Pearl |
12,099 | 0.0 | % | 4,033 | 8,066 | 0.0 | % | |||||
| Lou Pearl |
2,776 | 0.0 | % | 925 | 1,851 | 0.0 | % | |||||
| Aldolfo Perez |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Noelly Perez |
1,398 | 0.0 | % | 466 | 932 | 0.0 | % | |||||
| Pershing LLC |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Pershing LLC as Custodian IRA FBO Marc Loveman |
97,882 | 0.4 | % | 32,627 | 65,255 | 0.3 | % | |||||
| Carley E. Pflueger |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Harold D. Pierce c/o Guardian Contracts |
745 | 0.0 | % | 248 | 497 | 0.0 | % | |||||
| Carmen Pirela |
2,796 | 0.0 | % | 932 | 1,864 | 0.0 | % | |||||
| Norm Pool |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Norman F. Pool |
111,865 | 0.4 | % | 37,288 | 74,577 | 0.3 | % | |||||
22
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Norm Pool TOD Nickie Edwards |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Anthony Profeta |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| David B. Radden & Anne L. Radden Trust UAD 09/05/89 |
74,577 | 0.3 | % | 24,859 | 49,718 | 0.2 | % | |||||
| Elizabeth L. Ramey |
27,966 | 0.1 | % | 9,322 | 18,644 | 0.1 | % | |||||
| Shawn Reed |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Jack A. Rikess |
27,966 | 0.1 | % | 9,322 | 18,644 | 0.1 | % | |||||
| Michael T. Ritter |
12,118 | 0.0 | % | 4,039 | 8,079 | 0.0 | % | |||||
| Jack Roddy |
83,899 | 0.3 | % | 27,966 | 55,933 | 0.2 | % | |||||
| Wallace D. Rodecker & Ghislaine D. Rodecker JTTEN |
37,288 | 0.1 | % | 12,429 | 24,859 | 0.1 | % | |||||
| Ron Rodecker & Katherine Rodecker JTTEN |
74,577 | 0.3 | % | 24,859 | 49,718 | 0.2 | % | |||||
| Richard Rosenheim |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Thomas Ross Trustee of The Thomas Ross Declaration of Trust DTD 01-16-2002 |
17,533 | 0.1 | % | 5,844 | 11,689 | 0.0 | % | |||||
23
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Russell R. Roth |
105,340 | 0.4 | % | 35,113 | 70,227 | 0.3 | % | |||||
| Nick Russo |
45,678 | 0.2 | % | 15,226 | 30,452 | 0.1 | % | |||||
| Nicholas Mario Russo |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Dominick Joseph Russo |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Thomas C. Salino |
7,933 | 0.0 | % | 2,644 | 5,289 | 0.0 | % | |||||
| Linda Santia |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Joseph J. Scarfi |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Stephen F. Schuermann & Robin L. Schuermann JTWROS |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Elaine Shaw |
1,491 | 0.0 | % | 497 | 994 | 0.0 | % | |||||
| Michael Sitt & Emire Sitt JTTEN |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Rose Mary Smith |
898 | 0.0 | % | 299 | 599 | 0.0 | % | |||||
| Rafaella Valenti Smith |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
24
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Dottie L. Smith |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| Kevin Cark Smith & Leanne F. Smith JTTEN |
139,833 | 0.6 | % | 46,111 | 93,222 | 0.4 | % | |||||
| Sponsored Technologies Group LLC |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Kenneth C. Sprenkle |
14,914 | 0.0 | % | 4,971 | 9,943 | 0.0 | % | |||||
| Lincoln F. Stock |
14,875 | 0.0 | % | 4,958 | 9,917 | 0.0 | % | |||||
| Diahanna Stover |
32,626 | 0.1 | % | 10,875 | 21,751 | 0.1 | % | |||||
| James Stresing |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
| Kelly Summerhill |
109,585 | 0.4 | % | 36,527 | 73,058 | 0.3 | % | |||||
| James J. Taranto II |
2,329 | 0.0 | % | 776 | 1,553 | 0.0 | % | |||||
| Tony Tegano |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| The Crossing Christian Church |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| The Slitz Family Trust |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Salvatore Tripi |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
25
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Raymond C. Ulley & Lois Brown JTTEN |
7,456 | 0.0 | % | 2,485 | 4,971 | 0.0 | % | |||||
| Alfred A. Ursillo & Sally M. Ursillo JTTEN |
1,863 | 0.0 | % | 621 | 1,242 | 0.0 | % | |||||
| Jose A. Valdez |
3,727 | 0.0 | % | 1,242 | 2,485 | 0.0 | % | |||||
| Mark Valenti |
976,813 | 3.9 | % | 325,604 | 651,209 | 2.6 | % | |||||
| Terry Valenti |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Clifford Valenti |
931 | 0.0 | % | 310 | 621 | 0.0 | % | |||||
| Lorraine Valenti |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Tom Valentine |
55,932 | 0.2 | % | 18,644 | 37,288 | 0.1 | % | |||||
| Robert J. Vincent c/o Michael E. O’Brien |
678 | 0.0 | % | 226 | 452 | 0.0 | % | |||||
| Allen D. Vogel |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Pam Waring |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Mike Webb |
46,611 | 0.2 | % | 15,537 | 31,074 | 0.1 | % | |||||
| Cullen West |
4,660 | 0.0 | % | 1,553 | 3,107 | 0.0 | % | |||||
26
| Selling Stockholder |
Number of Shares Beneficially Owned Prior to the Offering |
Percentage of the Offering |
Number of Securities Offered |
Number of Shares Beneficially Owned After the Offering |
Percentage of Outstanding Common Stock Beneficially Owned if all Offered Shares are Sold |
|||||||
| Barry Wilkinson |
55,932 | 0.2 | % | 18,644 | 37,288 | 0.1 | % | |||||
| Thomas Willer |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| Loren Willman |
219,171 | 0.9 | % | 73,055 | 146,116 | 0.6 | % | |||||
| Mike Willman & Patty Willman JTTEN |
913,575 | 3.6 | % | 304,525 | 609,050 | 2.4 | % | |||||
| Loren Willman & Lauren Almond JTTEN |
4,324,682 | 16.4 | % | 1,441,526 | 2,883,156 | 11.6 | % | |||||
| Martin S. Winick |
93,222 | 0.4 | % | 31,074 | 62,148 | 0.2 | % | |||||
| Marie Winzenried |
19,576 | 0.1 | % | 6,525 | 13,051 | 0.1 | % | |||||
| Robert Winzenried |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| Guy Winzenried |
18,643 | 0.1 | % | 6,214 | 12,429 | 0.0 | % | |||||
| James D. Woodall Jr. Kristen R. Woodall JTROS |
9,321 | 0.0 | % | 3,107 | 6,214 | 0.0 | % | |||||
| James D. Woodall Jr. Kristen R. Woodall JTROS |
3,727 | 0.0 | % | 1,242 | 2,485 | 0.0 | % | |||||
27
The selling stockholders, their pledgees, donees, transferees or other successors in interest, may from time to time sell shares of our common stock directly to purchasers or indirectly to or through underwriters, broker-dealers or agents. The selling stockholders may sell all or part of their shares in one or more transactions at fixed prices, varying prices, prices at or related to the then-current market price or at negotiated prices. The selling stockholders will determine the specific offering price of the shares from time to time that, at that time, may be higher or lower than the market price of our common stock quoted on the OTC Bulletin Board.
The selling stockholders and any underwriters, broker-dealers or agents participating in the distribution of the shares of our common stock may be deemed to be “underwriters” within the meaning of the Securities Act of 1933, and any profit from the sale of such shares by the selling stockholders and any compensation received by any underwriter, broker-dealer or agent may be deemed to be underwriting discounts under the Securities Act. The selling stockholders may agree to indemnify any underwriter, broker-dealer or agent that participates in transactions involving sales of the shares against certain liabilities, including liabilities arising under the Securities Act.
Because selling stockholders may be deemed to be “underwriters” within the meaning of the Securities Act, the selling stockholders will be subject to the prospectus delivery requirements of the Securities Act. We have informed the selling stockholders that the anti-manipulative provisions of Regulation M promulgated under the Exchange Act may apply to their sales in the market. With certain exceptions, Regulation M precludes the selling stockholders, any affiliated purchasers, and any broker-dealer or other person who participates in such distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security.
The method by which the selling stockholders, or their pledgees, donees, transferees or other successors in interest, may offer and sell their shares may include, but are not limited to, the following:
| • | sales on the over-the-counter market, or other securities exchange on which the common stock is listed at the time of sale, at prices and terms then prevailing or at prices related to the then-current market price; |
| • | sales in privately negotiated transactions; |
| • | sales for their own account pursuant to this prospectus; |
| • | through the writing of options, whether such options are listed on an options exchange or otherwise through the settlement of short sales; |
| • | cross or block trades in which broker-dealers will attempt to sell the shares as agent, but may position and resell a portion of the block as a principal in order to facilitate the transaction; |
| • | purchases by broker-dealers who then resell the shares for their own account; |
| • | brokerage transactions in which a broker solicits purchasers; |
| • | any combination of these methods of sale; and |
| • | any other method permitted pursuant to applicable law. |
Any shares of common stock covered by this prospectus that qualify for sale under Rule 144 or Rule 144A of the Securities Act may be sold under Rule 144 or Rule 144A rather than under this prospectus. The shares of our common stock may be sold in some states only through registered or licensed brokers or dealers. In addition, in some states, the shares of our common stock may not be sold unless they have been registered or qualified for sale or the sale is entitled to an exemption from registration.
28
The selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions may engage in short sales of our common stock in the course of hedging the positions they assume with selling stockholders. The selling stockholders may also enter into options or other transactions with broker-dealers or other financial institutions which require the delivery to such broker-dealer or other financial institution of the shares offered hereby, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
To the extent required by a particular offering, we will set forth in a prospectus supplement or, if appropriate, a post-effective amendment, the terms of such offering, including among other things, the number of shares of common stock to be sold, the public offering price, the names of any underwriters, dealers or agents and any applicable commissions or discounts. In addition, upon being notified by a selling stockholder that a donee or pledgee intends to sell more than 500 shares, a supplement to this prospectus will be filed.
To our knowledge, there are currently no plans, arrangements or understandings between any selling stockholder and any underwriter, broker-dealer or agent regarding the sale of shares of our common stock by the selling stockholders.
The selling stockholders will pay all fees, discounts and brokerage commissions in connection with any sales, including any fees to finders. We will pay all expenses of preparing and reproducing this prospectus, including expenses or compliance with state securities laws and filing fees with the SEC.
Under applicable rules and regulations under Regulation M under the Exchange Act, any person engaged in the distribution of the common stock may not simultaneously engage in market making activities, subject to certain exceptions, with respect to the common stock for a specified period set forth in Regulation M prior to the commencement of such distribution and until its completion. In addition and with limiting the foregoing, the selling stockholders will be subject to the applicable provisions of the Securities Act and the Exchange Act and the rules and regulations thereunder, including, without limitation, Regulation M, which provisions may limit the timing of purchases and sales of shares of the common stock by selling stockholders. The foregoing may affect the marketability of the common stock offered hereby.
Each selling stockholder may be deemed to be an “underwriter” as such term is defined in the Securities Act, and any commissions paid or discounts or concessions allowed to any such person and any profits received on resale of the securities offered hereby may be deemed to be underwriting compensation under the Securities Act.
Our common stock is quoted on the OTC Bulletin Board under the symbol “CGZT.”
There can be no assurance that any selling stockholders will sell any or all of the common stock pursuant to this prospectus. In addition, any common stock covered by this prospectus that qualifies for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus.
The validity of the shares of our common stock will be passed upon for us by Locke Liddell & Sapp LLP, Houston, Texas.
The consolidated financial statements of Cotelligent as of December 31, 2003 and 2002, and for each of the years in the three-year period ended December 31, 2003, have been incorporated by reference in this registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
29
You should rely only on the information contained in this prospectus. We have not authorized anyone to provide prospective investors with different or additional information. This prospectus is not an offer to sell, nor is it seeking an offer to buy, these securities in any jurisdiction where the offer is not permitted. The information contained in this prospectus is correct only as of the date of this prospectus, regardless of the time of the delivery of this prospectus or any sale of these securities.
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COTELLIGENT, INC.
PROSPECTUS
Common Stock
($0.01 per share par value)
June 25, 2004
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The fees and expenses payable by us in connection with the issuance and distribution of the common stock of Cotelligent Inc. (the “Company”) registered hereunder are as follows:
| Securities and Exchange Commission registration fee |
$ | N/A | |
| *Legal fees and expenses |
$ | 12,500 | |
| *Accounting fees and expenses |
$ | 10,250 | |
| Total |
$ | 22,750 | |
| * | Estimated |
The selling stockholders have not paid any portion of the registration expenses.
| Item 15. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law, inter alia, empowers a Delaware corporation to 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 (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding 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. Similar indemnity is authorized for such persons against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of any such threatened, pending or completed action or suit if such person 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 provided further that (unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case upon a determination by the shareholders or disinterested directors or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145. Cotelligent. maintains policies insuring its and its subsidiaries’ officers and directors against certain liabilities for actions taken in such capacities, including liabilities under the Securities Act of 1933, as amended.
Cotelligent’s Certificate of Incorporation, as amended, eliminates in certain circumstances the monetary liability of directors of Cotelligent for a breach of their fiduciary duty as directors. These provisions do not eliminate the liability of a director (1) for a breach of the director’s duty of loyalty to the corporation or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law; (3) under Section 174 of the Delaware General Corporation Law (relating to the declaration of dividends and purchase or redemption of shares in violation of the Delaware General Corporation Law); or (4) for transactions from which the director derived an improper personal benefit.
Article IV of Cotelligent’s Amended and Restated Bylaws provides that the corporation will indemnify its present and former directors, officers, employees and agents against expenses and liabilities incurred by them in
connection with any suit to which they are, or are threatened to be made, a party by reason of their serving in such positions so long as they 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, they had no reasonable cause to believe their conduct was unlawful. With respect to suits by or in the right of a corporation, however, indemnification is not available if such person is adjudged to be liable to the corporation unless the court determines that indemnification is appropriate. Article Eight of the Certificate of Incorporation expressly provides that the power to indemnify authorized thereby and is not exclusive of any rights granted to present and former director and officer, under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.
The Certificates of Incorporation of Cotelligent provide for the corporation to indemnify its officers and directors to the fullest extent permitted by Delaware law.
Directors and Officers Liability Insurance
Cotelligent has purchased directors and officers liability insurance that would indemnify the directors and officers of Cotelligent against damages arising out of certain kinds of claims that might be made against them based on their negligent acts or omissions while acting in their capacity as such.
General
The above discussion of the organizational document of Cotelligent and Delaware law is not intended to be exhaustive and is qualified in its entirety by such organizational documents and law.
With respect to possible indemnification of directors, officers and controlling persons of Cotelligent for liabilities arising under the Securities Act pursuant to such provisions, Cotelligent is aware that the Securities and Exchange Commission has publicly taken the position that such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
| Item 16. | Exhibits |
| 2.1* | Agreement and Plan of Merger, dated as of November 24, 2003, among Cotelligent, Inc., Watchit Media USA, Inc., On-Site Media Inc. and Certain of the Stockholders of On-Site Media, Inc. The copy incorporated by reference does not include the schedules to the Agreement and Plan of Merger as listed in the table of contents thereto. The Registrant undertakes to furnish any such schedules to the Commission upon its request. | |
| 2.2* | Side Letter effective as of November 24, 2003, among Cotelligent, Inc. and On-Site Media, Inc. assigning Recency Media USA, Inc.’s rights under the Agreement and Plan of Merger and Business Development Agreement to Watchit Media USA, Inc. | |
| 4.1 | Form of certificate evidencing ownership of Common Stock of Cotelligent, Inc. (Incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-1 (File No. 33-80267), effective February 9, 1996) | |
| 4.2 | Rights Agreement, dated as of September 24, 1997, between Cotelligent, Inc. and BankBoston, N.A. (Incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K (File No. 0-27412) filed with the SEC on September 24, 1997) | |
| 4.3 | Amendment No. 1 to Rights Agreement, dated June 13, 2002, amending Rights Agreement, dated as of September 24, 1997, between Cotelligent, Inc. and BankBoston, N.A. (Incorporated by reference to Exhibit 4 of the Company’s Current Report on Form 8-K (File No. 0-27412), filed with the SEC on June 13, 2002) | |
| 4.4* | Form of Warrant | |
| 5.0* | Opinion of Locke Liddell & Sapp LLP Legal Counsel of the Registrant | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 24.1 | Power of Attorney — Cotelligent, Inc. (included on signature page) | |
| * | Incorporated by reference to the Registrant’s Registration Statement on Form S-4/A (File No. 333-111550) filed on February 3, 2004. |
| Item 17. | 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:
(a) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(b) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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) and 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), if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(c) 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 (1)(a) and 1(b) 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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other that 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and duly caused this Post-Effective Amendment on Form S-3 to the Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on June 25, 2004.
| COTELLIGENT, INC. | ||
| By: | /s/ JAMES R. LAVELLE | |
| James R. Lavelle Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints JAMES R. LAVELLE and CURTIS J. PARKER, each as his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment on Form S-3 to the Registration Statement on Form S-4 has been signed by the following persons in the capacities and on the dates indicated.
| SIGNATURE |
TITLE |
DATE | ||
| /s/ JAMES R. LAVELLE James R. Lavelle |
Chairman of the Board and, Chief Executive Officer (Principal Executive Officer) |
June 25, 2004 | ||
| /s/ CURTIS J. PARKER Curtis J. Parker |
Executive Vice President, Chief Financial Officer, Treasurer and Assistant Secretary (Principal Financial Officer) |
June 25, 2004 | ||
Anthony M. Frank |
Director | |||
| /s/ HARLAN P. KLEIMAN Harlan P. Kleiman |
Director | June 25, 2004 | ||
Debra J. Richardson |
Director | |||
| /s/ TONY VICKERS Tony Vickers |
Director | June 25, 2004 | ||
INDEX TO EXHIBITS
| Exhibit No. |
Description | |
| 2.1* | Agreement and Plan of Merger, dated as of November 24, 2003, among Cotelligent, Inc., Watchit Media USA, Inc., On-Site Media Inc. and Certain of the Stockholders of On-Site Media, Inc. The copy incorporated by reference does not include the schedules to the Agreement and Plan of Merger as listed in the table of contents thereto. The Registrant undertakes to furnish any such schedules to the Commission upon its request. | |
| 2.2* | Side Letter effective as of November 24, 2003, among Cotelligent, Inc. and On-Site Media, Inc. assigning Recency Media USA, Inc.’s rights under the Agreement and Plan of Merger and Business Development Agreement to Watchit Media USA, Inc. | |
| 4.1 | Form of certificate evidencing ownership of Common Stock of Cotelligent, Inc. (Incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-1 (File No. 33-80267), effective February 9, 1996) | |
| 4.2 | Rights Agreement, dated as of September 24, 1997, between Cotelligent, Inc. and BankBoston, N.A. (Incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K (File No. 0-27412) filed with the SEC on September 24, 1997) | |
| 4.3 | Amendment No. 1 to Rights Agreement, dated June 13, 2002, amending Rights Agreement, dated as of September 24, 1997, between Cotelligent, Inc. and BankBoston, N.A. (Incorporated by reference to Exhibit 4 of the Company’s Current Report on Form 8-K (File No. 0-27412), filed with the SEC on June 13, 2002) | |
| 4.4* | Form of Warrant | |
| 5.0* | Opinion of Locke Liddell & Sapp LLP Legal Counsel of the Registrant | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 24.1 | Power of Attorney — Cotelligent, Inc. (included on signature page) | |
| * | Incorporated by reference to the Registrant’s Registration Statement on Form S-4/A (File No. 333-111550) filed on February 3, 2004. |