AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 19, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
CONSYGEN, INC.
(Exact Name of Registrant as Specified in its Charter)
TEXAS 76-0260145
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
125 S. 52ND STREET, TEMPE, AZ, 85281 (602) 394-9100
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
--------------------------
CONSYGEN, INC. SECOND AMENDED AND RESTATED 1997 NON-QUALIFIED STOCK OPTION PLAN
(Full title of Plans)
--------------------------
THOMAS S. DREAPER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
125 SOUTH 52ND STREET TEMPE, AZ 85281(602) 394-9100
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
WITH A COPY TO:
STEPHEN T. MEADOW, ESQ.
CRUSE, FIRETAG & BOCK, P.C.
5611 NORTH 16TH STREET, SUITE 300
PHOENIX, ARIZONA 85016
(602) 279-9411
--------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Each Proposed Proposed
Class of Amount Maximum Maximum Amount of
Securities to to Be Offering Price Aggregate Registration
Be Registered Registered Per Share(1) Offering Price(1) Fee
- --------------------------------------------------------------------------------
Common Stock, 1,500,000
$.003 par value Shares(2) $1.09 $1,635,000 $454.53
================================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933, on the basis of the
average of the high and low reported price of the Common Stock of $1.09 on
the Nasdaq Stock Market's SmallCap Market on January 14, 1999.
(2) The Shares being registered hereunder include 1,500,000 shares that may be
issued pursuant to the ConSyGen, Inc. 1997 Second Amended and Restated
Non-Qualified Stock Option Plan. Such presently indeterminable number of
additional shares of Common Stock are also registered hereunder as may be
issued in the event of a merger, consolidation, reorganization,
recapitalization, stock dividend, stock split or other similar change in
Common Stock.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended May 31, 1998 filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Registrant's quarterly reports on Form 10-Q for the quarters
ended August 31, 1998 and November 30, 1998 filed pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(c) The Registrant's current report on Form 8-K dated December 30,
1998.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as amended by
Amendment No. 1 thereto (Registration No. 0-17598), filed under
the Exchange Act with the Securities and Exchange Commission.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation, as amended (the "Amended
Articles"), eliminate, subject to certain exceptions, the personal liability of
directors to the Registrant or its stockholders for monetary damages for
breaches of fiduciary duties as directors to the extent permitted by state law.
The Amended Articles do not provide for the elimination of, or any limitation
on, the personal liability of a director (i) for a breach of the director's duty
of loyalty, (ii) engaged in a transaction from which he receives an improper
<PAGE>
benefit, (iii) for intentional misconduct or knowing violation of law, (iv)
found not to have acted in good faith, (v) engaged in an act related to an
unlawful stock repurchase or payment of dividend or (vi) where liability is
prescribed by law. These provisions of the Amended Articles may limit the
remedies available to a stockholder in the event of breaches of any director's
duties to such stockholder or the Registrant.
The Registrant's Amended and Restated Bylaws (the "Amended Bylaws")
include provisions for mandatory indemnification of its officers and directors
to the maximum extent provided under the Texas Business Corporation Act
("TBCA"). To the extent permitted under the TBCA, the Amended Bylaws provide
that no officer or director shall be liable to the Company for any action taken
or omitted to be taken by him as a director or officer if such person (i)
exercised the same degree of care and skill as a prudent person would have
exercised under similar circumstances or (ii) took or omitted to take such
action in reliance upon advice of counsel for the Company or upon statements
made or information furnished by directors, officers, employees, or agents of
the Company, which he had no reasonable grounds to disbelieve. In addition, the
Amended Bylaws provide that directors and officers shall be paid or reimbursed,
to the fullest extent provided under the TBCA, for reasonable expenses incurred
by such director or officer in connection with certain proceedings, in advance
of the final disposition of such proceeding.
Article 2.02-1 of the TBCA generally permits a corporation to indemnify
a person who was, is, or is threatened to be a named defendant or respondent in
a proceeding because the person was or is a director or officer if it is
determined that such person (1) conducted himself in good faith; (2) reasonably
believed (a) in the case of conduct in his official capacity as a director or
officer of the corporation, that his conduct was in the corporation's best
interests, or (b) in the case of other situations, that his conduct was at least
not opposed to the corporation's best interests; and (3) in the case of any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. In addition, the TBCA requires a corporation to indemnify a director
or officer for any action that such director or officer successfully defended on
the merits.
The Registrant has entered into indemnification agreements with each of
its directors and officers. The indemnification agreements provide that the
Registrant will pay certain amounts incurred by a director or officer in
connection with any civil or criminal action or proceeding and specifically
including actions by or in the name of the Registrant (derivative suits) where
the individual's involvement is by reason of the fact that he is or was a
director or officer. Such amounts include, to the maximum extent permitted by
law, attorney's fees, judgments, civil or criminal fines, settlement amounts and
other expenses customarily included in connection with legal proceedings. Under
the indemnification agreements, a director or officer will not receive
indemnification if he is found not to have acted in good faith in the reasonable
belief that his action was in the best interests of the Registrant.
The Registrant has also purchased and maintains director's and
officer's liability insurance for each of its officers and directors.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to directors,
officers or controlling persons of the Registrant pursuant to the Registrant's
By-Laws, or otherwise, the Registrant 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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Number Description
- ------ -----------
4.1* Specimen Common Stock Certificate (Filed as Exhibit 4.B to the
Registrant's Registration Statement on Form S-8 (File No. 33-22900-FW)).
4.2* Articles of Incorporation of the Registrant, as amended (Filed as Exhibit
3.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended August 31, 1997).
4.3* Amended and Restated By-Laws of the Registrant (Filed as Exhibit 3.2 to
the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998).
4.4* Subscription Agreement used in connection with the Rule 506 sale of
Convertible Debentures in the aggregate principal amount of $3,500,000
(including form of Convertible Debenture, form of warrant, and form of
Registration Rights Agreement, attached as Exhibits A,B and D,
respectively, to the Subscription Agreement). (Filed as Exhibit 4.3 to
the Registrant's Annual Report on Form 10-K for the year ended May 31,
1998).
4.5* Agreement dated as of July 17, 1998 between the Registrant and Tom S.
Dreaper relating to employment and grant of options to purchase 1,000,000
shares of common stock of the Registrant. (Filed as Exhibit 4.12 to the
Registrant's Annual Report on Form 10-K for the year ended May 31, 1998).
4.6* ConSyGen, Inc. Second Amended and Restated 1997 Non-Qualified Stock
Option Plan. (Filed as Exhibit 10.8 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended August 31, 1998).
5 Legal Opinion of Cruse, Firetag & Bock, P.C.
23.1 Consent of Cruse, Firetag & Bock, P.C. (contained in their opinion filed
as Exhibit 5).
23.2 Consent of Wolinetz, Gottlieb & Lafazan, P.C.
24 Power of Attorney (included on the Signature Page of this Registration
Statement).
- ----------
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act, reference is made to the documents previously filed with
the Commission, which are incorporated by reference herein.
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of 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;
(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 this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each 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 the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Registrant's Amended Articles of Incorporation,
Amended and Restated By-Laws, 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 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tempe, Arizona, on
January 18, 1999.
CONSYGEN, INC.
By: /s/ Thomas S. Dreaper
----------------------------
THOMAS S. DREAPER
PRESIDENT
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas S. Dreaper and Rajesh K. Kapur, and each
of them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or 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 attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert L. Stewart Chairman of the Board January 18, 1999
- -----------------------------
ROBERT L. STEWART
/s/ Thomas S. Dreaper President, Chief Executive January 18, 1999
- ----------------------------- Officer and Director
THOMAS S. DREAPER (Principal Executive Officer)
/s/ Rajesh K. Kapur Vice President and Chief January 18, 1999
- ----------------------------- Financial Officer
RAJESH K. KAPUR (Principal Financial Officer)
/s/ Andrew Lee Director January 18, 1999
- -----------------------------
ANDREW LEE
/s/ Alvin Lewis Burridge Director January 18, 1999
- -----------------------------
ALVIN LEWIS BURRIDGE
/s/ Jeffrey L. Weiss Director January 18, 1999
- -----------------------------
JEFFREY L. WEISS
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Page No.
- ------ --------
4.1 Specimen Common Stock Certificate (Filed as Exhibit 4.B to
the Registrant's Registration Statement on Form S-8 (File
No. 33-22900-FW)). *
4.2 Articles of Incorporation of the Registrant, as amended
(Filed as Exhibit 3.1 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended August 31, 1997). *
4.3 Amended and Restated By-Laws of the Registrant (Filed as
Exhibit 3.2 to the Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1998). *
4.4 Subscription Agreement used in connection with the Rule
506 sale of Convertible Debentures in the aggregate
principal amount of $3,500,000 (including form of
Convertible Debenture, form of warrant, and form of
Registration Rights Agreement, attached as Exhibits A, B
and D, respectively, to the Subscription Agreement). Filed
as Exhibit 4.3 to the Registrant's Annual Report on Form
10-K for the year ended May 31, 1998). *
4.5 Agreement dated as of July 17, 1998 between the Registrant
and Tom S. Dreaper relating to employment and grant of
options to purchase 1,000,000 shares of common stock of
the Registrant. (Filed as Exhibit 4.12 to the Registrant's
Annual Report on Form 10-K for the year ended May 31,
1998). *
4.6 ConSyGen, Inc. Second Amended and Restated 1997
Non-Qualified Stock Option Plan. (Filed as Exhibit 10.8 to
the Registrant's Quarterly Report on Form 10-Q for the
quarter ended August 31, 1998). *
5 Legal Opinion of Cruse, Firetag & Bock, P.C.
23.1 Consent of Cruse, Firetag & Bock, P.C. **
23.2 Consent of Wolinetz, Gottlieb & Lafazan, P.C.
24 Power of Attorney. ***
- --------
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act of 1933, reference is made to the documents previously filed
with the Commission, which are incorporated by reference herein.
** Contained in Exhibit 5.
*** Included on the Signature Page of this Registration Statement.
EXHIBIT 5
January 18, 1998
ConSyGen, Inc.
10201 South Street, Suite 140
Phoenix, AZ 85044
Re: ConSyGen, Inc., a Texas corporation
Registration Statement on Form S-8
Gentlemen:
We are counsel for ConSyGen, Inc., a Texas corporation (the "Company").
We have been asked to deliver this opinion in connection with the preparation
and filing with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Act"), of a Registration Statement on Form S-8 (the
"Registration Statement") relating to an aggregate of 1,500,000 shares of the
Company's Common Stock, $.003 par value per share (the "Shares"). This opinion
letter, together with Schedule A attached hereto (this "Opinion Letter"), is
being rendered in connection with the filing of the Registration Statement.
The 1,500,000 Shares covered by the Registration Statement are issuable
under the Company's 1997 Amended and Restated Non-Qualified Stock Option Plan.
(referred to herein as the "Plan").
In connection with this Opinion Letter, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of the following documents (collectively, the "Documents"):
1. a certificate from the Secretary of State of the State of Texas
dated January 18, 1999, as to the legal existence and good standing of the
Company;
2. A certificate of account states from the Controller of Public
Accounts of the State of Texas, dated January 4, 1999, as the good standing of
the Company;
3. A certificate of Good Standing from the Arizona Corporation
Commission, dated January 4, 1999;
4. a copy of the Articles of Incorporation of the Company, as amended
to date, and a certificate of the Secretary that there have been no further
amendments thereto;
5. a copy of the Amended and Restated By-laws of the Company, certified
by the Secretary of the Company as presently being in effect;
<PAGE>
6. certain proceedings of the directors of the Company relative to the
Plan and Options granted under the Plan;
7. the Plan;
8. a letter from the Company's transfer agent dated January 4, 1999, as
to the issued and outstanding shares of the Company's Common Stock, $.003 par
value per share; and
9. the Registration Statement.
We have, without independent investigation, relied upon the
representations and warranties of the various parties as to matters of objective
fact contained in the Documents.
In addition, this Firm, in rendering legal opinions, customarily makes
certain assumptions which are described in Schedule A hereto. In the course of
our representation of the Company in connection with the preparation of the
Registration Statement, nothing has come to our attention which causes us to
believe reliance upon any of these assumptions is inappropriate, and, with your
concurrence, the opinion hereafter expressed is based upon those assumptions.
The Enumerated Party referred to in Schedule A is the Company.
We have not made any independent review or investigation of orders,
judgments, rules or other regulations or decrees by which the Company or any of
its property may be bound, nor have we made any independent investigation as to
the existence of actions, suits, investigations or proceedings, if any, pending
or threatened against the Company.
With your concurrence, our opinion hereafter expressed is based solely
upon (1) our review of the Documents, (2) discussions with those of our
attorneys who have devoted substantive attention to the preparation of the
Registration Statement, and (3) such review of published sources of law as we
have deemed necessary.
Our opinions contained herein are limited to the laws of the State of
Arizona and the Federal law of the United States of America. Our opinion
regarding the Shares is rendered, with your concurrence, as if only the internal
laws of the State of Arizona were applicable thereto, notwithstanding that the
Company is a Texas corporation.
We express no legal opinion upon any matter other than that explicitly
addressed below, and our express opinion therein contained shall not be
interpreted to be an implied opinion upon any other matter.
Based upon and subject to the foregoing, we are of the opinion that the
issuance of the Shares has been duly authorized and, when issued and paid for in
accordance with the terms and conditions of the Plans, the Shares will be
validly issued, fully paid, and non-assessable.
<PAGE>
We hereby consent to the reference to this firm in the Registration
Statement and to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
CRUSE, FIRETAG & BOCK, P.C.
By:/s/ Stephen T. Meadow, Esq.
------------------------------
Stephen T. Meadow, Esq.
<PAGE>
SCHEDULE A
CRUSE, FIRETAG & BOCK, P.C.
STANDARD ASSUMPTIONS
In rendering legal opinions, Cruse, Firetag & Bock, P.C. make certain
customary assumptions described below:
1. Each natural person executing any of the Documents has sufficient legal
capacity to enter into such Documents.
2. Each Document is accurate, complete and authentic, each original is
authentic, each copy conforms to an authentic original and all signatures
are genuine.
3. All official public records are accurate, complete and properly indexed and
filed.
4. There has not been any mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence by or among any of the parties to the Documents.
5. The conduct of the parties to the Documents has complied in the past and
will comply in the future with any requirement of good faith, fair dealing
and conscionability.
6. The Enumerated Party will obtain all permits and governmental approvals
required in the future and take all actions similarly required relevant to
its performance of its obligations under the Documents.
7. All parties to or bound by the Documents will act in accordance with, and
will refrain from taking any action that is forbidden by, the terms and
conditions of the Documents.
8. There are no agreements or understandings among the parties to or bound by
the Documents, and there is no usage of trade or course of prior dealing
among such parties, that would define, modify, waive, or qualify the terms
of any of the Documents.
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the ConSyGen, Inc. 1996 Non-Qualified Stock
Option Plan and the ConSyGen, Inc. 1997 Second Amended and Restated
Non-Qualified Stock Option Plan of our report dated July 17, 1998 with respect
to the consolidated financial statements of ConSyGen, Inc. (a Texas corporation)
included in its Annual Report on Form 10-K for the year ended May 31, 1998,
filed with the Securities and Exchange Commission.
/s/ Wolinetz, Gottlieb & Lafazan, P.C.
Rockville Centre, New York
January 18, 1999
