As filed with the Securities and Exchange Commission on December 1, 1998
Registration Statement No. 333-________
SECURITIES AND EXCHANGE COMMISSSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SOFTECH, INC.
(Exact name of Registrant as specified in its charter)
Massachusetts 04-2453033
(State of Incorporation) (I.R.S. Employer Identification Number)
4695 44th Street S.E. Suite B-130
Grand Rapids, MI 49512
(616) 957-2330
(Name, address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Mark Sweetland
President
SofTech, Inc.
4695 44th Street S.E. Suite B-130
Grand Rapids, MI 49512
(616) 957-2330
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
John B. Steele, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
<PAGE>
Approximate date of commencement of proposed sale to the public: From time to
time after this registration statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
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 interest
reinvestment plans, check the following box. [x]
If this form is to be used 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, 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. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Shares Amount to be Aggregate Price Aggregate Amount of
to be Registered Registered(1) Per Unit (2) Offering Price Registration Fee
- ---------------- ------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
par value $0.10
per share 1,279,948 $4.00 $5,119,792 $1,510
</TABLE>
(1) Plus such additional number of shares as may be required in the event of a
stock dividend, reverse stock split, split up, recapitalization or other similar
event.
(2) This estimate is made pursuant to Rule 457(c) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of determining
the amount of the registration fee and is based upon the market value of
outstanding shares of SofTech, Inc.'s Common Stock on November 30, 1998,
utilizing the average of the high and low sale prices reported on the NASDAQ
National Market System on that date.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
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 NOR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE 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 December 1, 1998
PRELIMINARY PROSPECTUS
1,279,948 Shares
SofTech, Inc.
Common Stock
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See "Risk Factors" beginning on page 7 for certain factors relevant to an
investment in the Common Stock
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All of the shares (the "Shares") of common stock, $0.10 par value per share (the
"Common Stock") of SofTech, Inc. ("SofTech" or the "Company"), offered hereby
are being registered for the account of certain stockholders of SofTech named
herein (the "Selling Stockholders"). The Company is registering the Shares to
satisfy the Company's contractual obligations to the Selling Stockholders to use
best efforts to register such Shares, but the registration of the Shares does
not necessarily mean that any of the Shares will be offered or sold hereunder.
See "Plan of Distribution" and "Selling Stockholders."
The Selling Stockholders, directly or through agents, dealers or underwriters
designated from time to time, may sell all or a portion of the Shares offered
hereby from time to time on terms to be determined at the time of the sale. To
the extent required, the specific Shares to be sold, the respective purchase
prices and public offering prices, the names of any such agent, dealer or
underwriter, and any applicable commissions or discounts with respect to a
particular offer will be set forth in the accompanying Prospectus Supplement.
See "Plan of Distribution." The Selling Stockholders reserve the sole right to
accept and, together with such Selling Stockholders' agents, dealers or
underwriters from time to time, to reject, in whole or in part, any proposed
purchase of Shares to be made directly or through agents, dealers or
underwriters.
The aggregate proceeds to the Selling Stockholders from the sale of the Shares
offered hereby (the "Offering") will be the purchase price of the Shares sold
less the aggregate agents' commissions and underwriters' discounts, if any, and
other expenses of issuance and distribution not borne by the Company. The
Company will pay all of the Selling Stockholders' expenses of the Offering other
than agents' commissions and underwriters' discounts with respect to the
issuance and distribution of the Shares offered hereby and transfer taxes, if
any. The Company
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<PAGE>
will not receive any proceeds from the sale of the Shares offered hereby by the
Selling Stockholders.
The Selling Stockholders and any agents, dealers or underwriters that
participate with the Selling Stockholders in the distribution of the Shares may
be deemed to be underwriters within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), in which case any commissions received by
such agents, dealers or underwriters and any profit on the resale of the Shares
purchased by them may be deemed underwriting commissions or discounts under the
Securities Act.
The Common Stock is listed on the NASDAQ National Market System under the symbol
"SOFT."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
The date of this Prospectus is December 1, 1998.
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<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the "SEC" or
"Commission") a Registration Statement on Form S-3 under the Securities Act with
respect to the Shares. This Prospectus, which constitutes part of the
Registration Statement, omits certain of the information contained in the
Registration Statement and the exhibits thereto on file with the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
thereunder. The Registration Statement, including exhibits thereto, may be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at
the Commission's Regional Offices at 7 World Trade Center, 13th Floor, New York,
New York, 10048, and Citicorp Center, 500 W. Madison Street, Suite 1400 Chicago,
Illinois 60661-2511, and copies may be obtained at the prescribed rates from the
Public Reference Section of the Commission at its principal office in
Washington, D.C. Statements contained in this Prospectus as to the contents of
any contract or other document referred to are not necessarily complete, and in
each instance reference is made to the copy of such contract or other documents
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the locations described above. Copies of such materials
can be obtained by mail from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates.
In addition, the Company is required to file electronic versions of these
documents with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system. The Commission maintains a
World Wide Web site at http/www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission.
The Company's Common Stock is quoted on the NASDAQ National Market under the
symbol "SOFT". Reports, proxy statements and other information about the Company
may also be inspected at the offices of the National Association of Securities
Dealers, Inc. at 1735 K Street, Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference the documents listed in (a) through
(c) below, which have previously been filed with the Commission.
(a) The Company's Annual Report on Form 10-K for the fiscal year ended May 31,
1998;
(b) All reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act since May 31, 1998; and
(c) The description of the Common Stock contained in the Company's Registration
Statement on Form 8-A under the Securities Act dated September 14, 1982, and any
amendments or reports filed for the purpose of updating such description.
In addition, all documents subsequently filed with the Commission by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
filing of a post-effective
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<PAGE>
amendment which indicates that all securities offered hereunder 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 in a document incorporated by reference herein shall be
deemed to be modified or superceded for purposes of this registration statement
to the extent that a statement contained herein or in any subsequently filed
document which also is incorporated by reference herein modifies or supercedes
such statement. Any statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this registration
statement.
The Company will provide, without charge, to each person, including a beneficial
owner to whom a copy of the Prospectus is delivered, at the written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits thereto, unless such exhibits are
specifically incorporated by reference into such documents). Written requests
for such copies should be directed to Joseph P. Mullaney, the Vice President and
Chief Financial Officer of the Company, 4695 44th Street, S.E., Suite B-130,
Grand Rapids, Michigan 49512, (781) 890-8373.
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<PAGE>
This Prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. The Company's actual results may differ materially from
the results discussed on the forward-looking statements. Factors that might
cause such a difference include, but are not limited to, those discussed below.
RISK FACTORS
An investment in the Company involves various risks. In addition to other
matters referenced in the Company's documents which are filed with the
Commission and which are incorporated by reference herein, prospective
stockholders should consider the following risk factors:
Dependence on Technology Providers. The Company markets hardware and software
offerings through contractual relationships with various hardware and software
technology providers in conjunction with its own technology and services. As a
total solution provider, these relationships are important to our customers so
as to allow the Company to provide "one-stop-shopping". The loss or significant
change to certain of these contractual relationships could have a material
adverse effect on the business.
Managed Growth. An important component of the Company's growth strategy includes
internal expansion and strategic acquisitions of complementary businesses.
During fiscal 1998, the Company completed four acquisitions and opened six new
offices. While it is critical to continue this growth in order to expand the
revenue base, it is equally important that the Company properly integrate and
assimilate the newly established offices and acquired companies into its
operations. This dual focus of growth and assimilation will require a great deal
of management time and attention in order to succeed. If the Company is unable
to properly manage this dual focus, the Company's business, financial condition
and results of operations may be materially adversely effected.
Moreover, there can be no assurance that the Company will be able to locate
suitable acquisition candidates or consummate acquisitions of any such
candidates on acceptable terms. Finally, the devaluation of the Company's stock,
whether resulting from potential or actual change in liquidity or a reduction in
market value or otherwise, as an acquisition currency may limit or even
eliminate acquisitions as a viable means for growth.
Dependence on Key Personnel. The Company is highly dependent on the members of
its management team, the loss of one or more of which could have a material
adverse effect on the Company. In addition, the future success of the Company is
dependent on its ability to attract and retain highly skilled technical,
managerial and marketing personnel. The competition for such talented
individuals is very intense. There can be no assurance that the Company will be
successful in attracting and retaining the personnel it requires. The failure to
attract and retain such personnel could materially adversely effect the
business, financial condition and results of operations of the Company.
Technology Changes. Over the last two years the primary software offering of the
Company has changed dramatically. From 1989 through September 1996, the Company
marketed, installed and supported a high-end CAD/CAM software solution that ran
primarily on a UNIX platform and had an average sale price of approximately
$50,000 per seat (hardware, software, installation and training solution for one
engineer). In January 1995, Parametric Technology Corporation ("PMTC")
introduced a mid-range software offering that ran on a personal computer and had
an
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<PAGE>
average sale price per seat of approximately $18,000. From January 1995 to
September 1996, the Company marketed, installed and supported both the high-end
and the mid-range solution. Beginning October 1, 1996, the Company was
restricted from selling the high-end software solution and had focused its
efforts on the PMTC mid-range software offering through September 30, 1997. The
contractual right to market PMTC's products ended on September 30, 1997 and was
not renewed. The loss of this PMTC relationship is not expected to have a
material impact on the Company's performance based on the technology
acquisitions in November 1997 and May 1998 detailed in the fiscal 1998 Annual
Report along with the growth of the Company's services business and contractual
relationships with other third party software providers.
Litigation. On March 26, 1998, plaintiff PMTC filed an action in the Superior
Court, Middlesex County, alleging that the Company owes PMTC $905,942 in unpaid
maintenance services and other disputed items. Upon filing the complaint, PMTC
sought to attach, through trustee process that amount of the Company's funds.
After a hearing on April 7, 1998, PMTC's motion for trustee process was denied.
The Company filed a counterclaim against PMTC asserting claims for breach of
contract, breach of the implied covenant of good faith and fair dealing, fraud
in the inducement, and intentional interference with contractual and
advantageous relations. The counterclaims allege damages in excess of those
claimed by PMTC.
On May 1, 1998, PMTC filed a second action in the United States District Court
for the District of Massachusetts seeking unspecified damages in connection with
the Company's alleged infringement of PMTC's copyrights. The Company intends to
vigorously defend against all of these cases, and believes that it has
meritorious defenses to these claims.
Potential for Delisting of Shares. The NASDAQ National Market currently requires
that all issuers meet the following minimum standards to maintain the listing on
the Exchange: a minimum bid price of $1.00 per share; net tangible assets to
$4.0 million defined as stockholders equity less goodwill; 750,000 shares of
public float; $5.0 million of market value of public float; and a minimum of 400
shareholders and two market makers. As of October 15, 1998, the date of the
Company's most recent filing with the Securities and Exchange Commission on Form
10-Q for the first quarter of fiscal year 1999, the Company is in compliance
with each of these listing requirements.
In the event that the Company failed to maintain the minimum requirements as
detailed above, NASDAQ would institute proceedings to delist the shares.
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<PAGE>
THE COMPANY
SofTech, Inc. (the "Company" or "SofTech") is a Massachusetts corporation
incorporated on June 10, 1969. The Company's principal executive office is
located at 4695 44th Street, S.E., Suite B-130, Grand Rapids, Michigan 49512 and
its telephone number at that location is (616)957-2330.
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the Selling
Stockholders, including the number of shares of Common Stock beneficially owned
by the Selling Stockholders, the number of shares registered hereby and the
percentage of shares of Common Stock held by the Selling Stockholders. There can
be no assurance that all or any of the Shares offered hereby will be sold. If
any are sold, the Selling Stockholders will receive all of the net proceeds from
the sale of its Shares offered hereby. The Company has been advised by the
Selling Stockholders that, not withstanding the registration of its Shares
pursuant to the Registration Statement of which this Prospectus is a part, the
Selling Stockholders have no present intention to sell any of the Shares, but
may in the future determine to do so.
Number of Shares of
Common Stock Owned Number of Shares
Selling Stockholders Before the Offering Being Registered
Greenleaf Asset Management 1,309,548 1,099,948
Phillip Abrams 100,000 100,000
Charlie Scott 40,000 40,000
Kendall K. Raczek 40,000 40,000
--------- ---------
1,489,548 1,279,948
In recognition of the fact that Selling Stockholders may desire to sell their
Shares when they consider appropriate, the Company has filed with the Commission
a registration statement on Form S-3 (of which this Prospectus is a part) with
respect to the sale of the Shares by the Selling Stockholders. The Company will
prepare and file such amendments and supplements to the registration statement
as may be necessary to keep it effective through May 1, 1999.
The Selling Stockholders acquired their Shares of Common Stock pursuant to one
of three separate and unrelated acquisitions described below. Greenleaf Asset
Management acquired 1,099,948 shares of SofTech common stock in a private
placement completed by the Company on October 26, 1998 as described in a Form
8-K filing with the Securities and Exchange Commission filed on November 4,
1998. The President of Greenleaf Asset Management, William Johnston, is also a
Director of SofTech. Mr. Abrams received his Shares of Common Stock pursuant to
an Asset Purchase Agreement dated May 1, 1998 between Compucore LLC and SofTech,
Inc. Messrs. Scott and Raczek received their Shares of Common Stock pursuant to
an Asset Purchase Agreement dated April 1, 1998 between Kendall K. Raczek and
Charlie Scott and SofTech, Inc.
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<PAGE>
PLAN OF DISTRIBUTION
The Company will not receive any of the proceeds from this Offering. The Shares
offered hereby may be sold by the Selling Stockholders from time to time, on the
NASDAQ National Market System on terms to be determined by the Selling
Stockholders at the time of such sales. The Selling Stockholders may also make
private sales directly or through a broker or brokers. Alternatively, the
Selling Stockholders may from time to time offer shares to or through
underwriters, dealers or agents, who may receive consideration in the form of
discounts and commissions; such compensation; which may be in excess of ordinary
brokerage commissions, may be paid by the Selling Stockholders and/or the
purchasers of the Shares offered hereby for whom such underwriters, dealers or
agents may act. The Selling Stockholders and any dealers or agents that
participate in the distribution of the Shares offered hereby may be deemed to be
"underwriters" as defined in the Securities Act, and any profit on the sale of
such Shares offered hereby by them and any discounts, commissions or concessions
received by any such dealers or agents might be deemed to be underwriting
discounts and commissions under the Securities Act. The aggregate proceeds to
the Selling Stockholders from sales of the Shares offered by the Selling
Stockholders hereby will be the purchase price of such Common Stock less any
broker's commissions.
To the extent required, the specific shares of Common Stock to be sold, the
respective purchase prices and public offering prices, the names of any such
agent, dealer or underwriter, and any applicable commissions or discounts with
respect to a particular offer will be set forth in an accompanying Prospectus
Supplement.
The Shares offered hereby may be sold from time to time, in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. In order to
comply with the securities laws of certain states, if applicable, the Shares
offered hereby will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states, Shares may not be
sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Common Stock offered hereby may not
simultaneously engage in market making activities with respect to the Common
Stock for a period of one business day prior to the commencement of such
distribution. Without limiting the foregoing, the Selling Stockholders will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, which may limit the timing of purchases and sales of the
Company's Common Stock by the Selling Stockholders.
The Company will pay substantially all the expenses incurred by the Selling
Stockholders and the Company incident to the Offering and sale of the Shares to
the public, but excluding any underwriting discounts, commissions or transfer
taxes.
The Company has agreed to indemnify the Selling Stockholders against certain
liabilities, including liabilities under the Securities Act. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Company, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable.
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No person has been authorized in connection with the offering made hereby to
give any information or make any representation not contained in this
Prospectus, and if given or made, such information or representation must not be
relied upon as having been authorized by the Company, any Selling Stockholder or
any other person. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the Shares offered hereby to any person
or by anyone in any jurisdiction in which it is unlawful to make such offer or
solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information contained herein is correct as of any date subsequent to the date
hereof.
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1,279,948 Shares
SofTech, Inc.
Common Stock
PROSPECTUS
TABLE OF CONTENTS
Available Information ..................................................... 5
Incorporation of Certain
Documents by Reference ............................................... 5
Risk Factors .............................................................. 7
The Company ............................................................... 9
Selling Stockholders ...................................................... 9
Plan of Distribution ...................................................... 11
Legal Matters ............................................................. 18
December 1, 1998
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and distribution of the securities
being registered are set forth in the following table (all amounts except the
registration fee are estimated):
Registration fee $1,510
Blue Sky fees 0
Legal fees and expenses 2,000
Accountant's fees and expenses 1,000
Miscellaneous 1,000
------
Total $5,510
======
All expenses in connection with the issuance and distribution of the securities
being offered will be borne by the Company.
Item 15. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section 67")
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (ii) a
by-law adopted by the stockholders, or (iii) a vote adopted by the holders of
the majority of the shares of stock entitled to vote on the election of
directors. In all instances, the extent to which a corporation provides
indemnification to its directors and officers under Section 67 is optional. In
its By-laws the Company has elected to commit to provide indemnification to its
directors and officers in specified circumstances. Generally, Section 9 of
Article V of the Company's By-laws indemnifies directors and officers of the
Company against liability and expenses arising out of legal proceedings brought
against them by reason of their status or service as directors or officers or by
reason of their agreeing to serve, at the request of the Company, as a director
or officer of, or in a similar capacity with, another organization or in any
capacity with respect to any employee benefit plan of the Company. Under this
provision, a director or officer of the Company shall be indemnified by the
Company for all expenses, judgments and amounts paid in settlement of such
proceedings, even if he or she is not successful on the merits, if he or she
acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the Company.
The Company's By-laws establish the presumption that the director or officer has
met the applicable standard of conduct required for indemnification. The
indemnification above shall be made unless the Board of Directors or independent
counsel determines that the applicable standard of conduct has not been met.
Such a determination may be made by a majority of the directors or a committee
thereof or independent legal counsel. The Board of Directors shall authorize
advancing litigation expenses to a director or officer at his or her request
upon receipt of an undertaking by such director or officer to repay such
expenses if it is ultimately determined that he or she is not entitled to
indemnification for such expenses.
Article 6C of the Company's Articles of Organization, as amended, eliminates the
personal liability of the Company's directors to the Company or its stockholders
for monetary damages for breach of a director's fiduciary duty, except to the
extent Chapter 156B of the Massachusetts General Laws prohibits the elimination
or limitation of such liability.
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As permitted by Massachusetts law, the Company has purchased directors' and
officers' liability insurance, which insures against certain losses arising from
claims against directors or officers of the Company by reason of certain acts
including a breach of duty, neglect, error, misstatement, misleading statement,
omission or other act done or wrongfully attempted or any of the foregoing so
alleged by the claimant or any claim against an officer or director of the
Company solely by reason of his being such officer or director.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
Item 16. Exhibits.
Exhibit
No. Description
5.1 Opinion of Goodwin, Procter & Hoar as to the legality of the
securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.3 Consent of Goodwin, Procter & Hoar (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on page 15 of this registration
statement).
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:
(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 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;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein 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 undersigned registrant
pursuant to Section
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13 or Section 15(d) of the Exchange Act that are incorporated by reference in
the 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 related 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; and
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The registrant hereby undertakes that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement related to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission 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 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 of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Grand Rapids, Michigan, on June 1, 1998.
SOFTECH, INC.
By: /s/ Mark R. Sweetland
------------------------
Mark R. Sweetland, President
14
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and directors
of SofTech, Inc. hereby severally constitute Mark R. Sweetland and Joseph P.
Mullaney, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the registration statement filed herewith and any
and all amendments to said registration statement, and generally to do all such
things in our names and in our capacities as officers and directors to enable
SofTech, Inc. to comply with the provisions of the Securities Act of 1933 and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
By: /s/ Mark R. Sweetland President, Chief Executive December 1, 1998
--------------------- Officer and Director
Mark R. Sweetland (principal executive officer)
By: /s/ Joseph P. Mullaney Vice President, Treasurer and December 1, 1998
---------------------- Chief Financial Officer (principal
Joseph P. Mullaney financial and accounting officer)
By: /s/ Timothy Weatherford Executive Vice President December 1, 1998
----------------------- and Director
Timothy Weatherford
By: /s/ Ronald Elenbaas Director December 1, 1998
-------------------
Ronald Elenbaas
By: /s/ William Johnston Director December 1, 1998
--------------------
William Johnston
By: /s/ Kenneth Ledeen Director December 1, 1998
------------------
Kenneth Ledeen
By: /s/ Timothy L. Tyler Director December 1, 1998
--------------------
Timothy L. Tyler
</TABLE>
15
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
5.1 Opinion of Goodwin, Procter & Hoar as to the legality of the
securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.3 Consent of Goodwin, Procter & Hoar (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on page 16 of this registration
statement).
16
Exhibit 5.1
December 1, 1998
SofTech, Inc.
4695 44th Street, S.E., Suite B-130
Grand Rapids, MI 49512
Re: SofTech, Inc.
Registration on Form S-3 of 1,279,948 Additional Shares of Common Stock
Ladies and Gentlemen:
We have assisted in the preparation and filing with the Securities and Exchange
Commission (the "Commission") of a Registration Statement on Form S-3, (the
"Registration Statement"), relating to the sale by certain stockholders of up to
1,279,948 shares of Common Stock, $0.10 par value per share (the "Shares") of
SofTech, Inc.(the "Company"), a Massachusetts corporation.
We have examined the Articles of Organization and By-laws of the Company, and
have examined and relied upon the originals, or copies certified to our
satisfaction, of such records of meetings of directors and stockholders of the
Company, documents and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion rendered below.
In our examination of the foregoing documents, we have assumed the genuineness
of all signatures and authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
We assume that the appropriate action will be taken, prior to the offer and sale
of the Shares, to register and qualify the Shares for sale under all applicable
state securities or "blue sky" laws.
Based upon the foregoing, we are of the opinion that the issuance of the Shares
was duly authorized, and that such Shares were validly issued and are fully paid
and non-assessable.
We hereby consent to the use of our name in the Registration Statement and
consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
Goodwin, Procter & Hoar LLP
17
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-3 and related Prospectus of SofTech, Inc. for the registration of
1,279,948 shares of its common stock of our report dated August 10, 1998, with
respect to the consolidated financial statements and financial statement
schedule of SofTech, Inc. included in its Annual Report on Form 10-K for the
year ended May 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Grand Rapids, Michigan
December 1, 1998
18
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
SofTech, Inc. on Form S-3 of our report, which includes an explanatory paragraph
related to the Company's ability to continue as a going concern, dated August 7,
1997, on our audits of the consolidated financial statements and financial
statement schedule of SofTech, Inc. as of May 31, 1997 and 1996, and for the
years ended May 31, 1997 and 1996.
/s/ PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
Boston, Massachusetts
December 1, 1998
