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As filed with the Securities and Exchange Commission on March 17, 1997
Registration No. 33-89384-LA
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PROLOGIC MANAGEMENT SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Arizona 86-0498857
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2030 East Speedway Blvd.
Tucson, AZ 85719
(Address of principal executive offices)
(Zip Code)
Prologic Management Systems, Inc. 1994 Stock Option Plan
(Full title of the plan)
James M. Heim
President and Chief Executive Officer
2030 East Speedway Boulevard
Tucson, Arizona 85719
(Name and address of agent for service)
(520) 320-1000
(Telephone number, including area code, of agent for service)
Copies to:
Joseph P. Richardson, Esq.
Brown & Bain, P.A.
2901 North Central Avenue
Suite 2000
Phoenix, Arizona 85012
(602) 351-8000
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CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Amount Maximum Maximum Amount
Title of Securities to be Offering Price Aggregate of
to Be Registered Registered Per Share (1) Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 50,000 shares $1.8125 $90,625 $100.00
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to paragraphs (c) and (h) of Rule 457 of the
General Rules and Regulations under the Securities Act of 1933, as
amended on the basis of the average of the high and low prices of the
Common Stock as quoted on the NASDAQ Small Cap Market on March 13, 1997.
Page 1 of 5
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to 500,000 shares of Common Stock,
without par value, of Prologic Management Systems, Inc. (the "Registrant"),
issuable upon the exercise of a common stock purchase warrant dated June 7,
1994, issued to John W. Barrett. The Warrant was issued in consideration of
consulting services rendered, in lieu of cash. The consulting services,
performed at the request of the Registrant, were rendered between approximately
June 1, 1994 and February 29, 1996. The consulting services were not rendered in
connection with the offer or sale of securities.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) The description of the Common Stock contained in the Company's
Prospectus included in the Registration Statement on Form
SB-2, File No. 33-89384-LA, as filed pursuant to Rule 424(b)
under the Securities Act;
(b) Annual Report on Form 10-KSB, as amended, for the fiscal year
ended March 31, 1996.
(c) Quarterly Report on Form 10-QSB for the fiscal quarter ended
June 30, 1996;
(c) Quarterly Report on Form 10-QSB for the fiscal quarter ended
September 30, 1996;
(d) Quarterly Report on Form 10-QSB for the fiscal quarter ended
December 31, 1996; and
(e) Current Report on Form 8-KSB, as amended, dated October 28,
1996.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 herein by reference and to be 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
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Articles of Incorporation of the Registrant limit the liability of
directors for monetary damages to the fullest extent allowed by Arizona law. The
effect of this provision is that the Registrant and shareholders, through
derivative suits, may not recover monetary damages against a director for breach
of the fiduciary duty of care, including those resulting from negligence, with
certain exceptions. Directors may still be liable for monetary damages for
breach of fiduciary duty for: i) acts or omissions involving intentional
misconduct or knowing or culpable violation of law; ii) acts or omissions that a
director believes to be contrary to the best interests of the corporation or its
shareholders or involve an absence of good faith by the director; iii) any
transaction in which a director received an improper personal benefit; iv) acts
or omissions showing a reckless disregard of the director's duty to the
corporation and its shareholders; v) acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of duty; vi)
liabilities arising out of transactions between the corporation and a director;
of vii) making improper distributions to shareholders or loans to directors.
The Articles of Incorporation also allow the Registrant to indemnify
its agents to the maximum extent permitted by Arizona law. Generally speaking,
agents (such as officers, directors and employees) must be indemnified if the
agent prevails on any claim made against him while acting as an agent. In cases
where indemnification is required, the Registrant is required to advance costs
of attorneys fees and other expenses, as well as costs of litigation and
settlement to the person indemnified. The Registrant has entered into
indemnification agreements with its directors and officers. The Registrant also
maintains a directors's and officer's liability insurance policy, as is
customary in the industry.
Sections 10-851 and 10-852 of the Arizona Revised Statutes provide for
the permissive or mandatory indemnification by a corporation of its directors
against liability in certain circumstances. In addition, Sections 10-851 and
10-202 of the Arizona Revised Statutes provide that a corporation may, in its
articles of incorporation, specifically authorize broader indemnification of its
directors (on either a mandatory or permissive basis) than would otherwise
2
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be provided by law. Under these statutes, a corporation such as the Registrant
that has provided in its articles of incorporation for mandatory indemnification
of directors in all circumstances permitted by law shall indemnify its directors
against liability for any action taken as directors (or any failure to take
action), other than liability for (a) the amount of a financial benefit received
by a director to which the director is not entitled; (b) an intentional
infliction of harm on the corporation or the shareholders; (c) a violation of
Section 10-833 of the Arizona Revised Statutes relating to the authorization of
unlawful distributions to shareholders; or (d) an intentional violation of
criminal law. However, indemnification is not available in connection with any
proceeding (i) by or in the right of the corporation in which the director is
adjudged liable to the corporation; or (ii) charging improper financial benefit
to the director in which the director is adjudged liable on the basis that such
an improper financial benefit was received by the director.
Under the Registrant's Articles and Section 10-856 of the Arizona
Revised Statutes, the Registrant's obligation to indemnify its officers against
liability is comparable to its obligation to indemnify its directors as
described in the preceding paragraph.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5 Opinion of Brown & Bain, P.A.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Brown & Bain, P.A. (included in Exhibit 5 hereto)
24 Power of Attorney (included on the signature page hereto)
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for
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 Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be in the initial bona fide offering
thereof.
(b) 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 Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
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 of whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tucson, State of Arizona, on March 17, 1997.
Prologic Management Systems, Inc.
By: /s/ James M. Heim
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James M. Heim
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1993, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
POWER OF ATTORNEY
KNOW ALL MEN BE THESE PRESENTS, that each person whose signature
appears below constitute and appoints James M. Heim and William E. Wallin, each
as his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her 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 attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith as fully to all intents and purposes as he or she might or
could do in person hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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Signature Name and Title Date
--------- -------------- ----
<S> <C> <C>
/s/ James M. Heim James M. Heim, March 17, 1997
- ------------------------ President and Chief Executive --------------
Officer (Principal Executive
Officer) and Director
/s/ Richard E. Metz Richard E. Metz, March 17, 1997
- ----------------------------- Executive Vice President, Chief --------------
Administrative Officer, Secretary and
Director
/s/ William E. Wallin William E. Wallin, March 17, 1997
- ----------------------------- Vice President, Finance, Chief --------------
Financial Officer and
Treasurer (Principal Financial and
Accounting Officer)
/s/ Herbert F. Day Herbert F. Day, Director March 17, 1997
- ----------------------------- --------------
/s/ Luke V. McCarthy Luke V. McCarthy, Director March 17, 1997
- ----------------------------- --------------
/s/ Craig W. Rauchle Craig W. Rauchle, Director March 17, 1997
- ----------------------------- --------------
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INDEX TO EXHIBITS
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Sequentially
Numbered
Exhibit No. Exhibit Page
- ----------- ------- ----
<S> <C> <C>
5 Opinion of Brown & Bain, P.A. 6
23.1 Consent of KPMG Peat Marwick LLP. 8
23.2 Consent of Brown & Bain, P.A. (included in Exhibit 5 hereto) 6
24 Power of Attorney (included on the signature page hereto) 4
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5
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Exhibit 5
[BROWN & BAIN LETTERHEAD]
September 24, 1996
PROLOGIC MANAGEMENT SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Prologic Management Systems, Inc., an Arizona
corporation (the "Company") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 50,000 shares (the
"Shares") of the Company's common stock, without par value (the "Common Stock")
which may be issued upon the exercise of a common stock purchase Warrant dated
June 7, 1994 (the "Warrant"). The Company has represented that the Warrant was
issued by the Company to a consultant for bona fide services rendered not in
connection with the offer or sale of securities in a capital-raising
transaction. The Shares are being registered pursuant to a registration
statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission"). This letter is Exhibit 5 to the
Registration Statement.
In arriving at the opinion expressed below, we have examined the
Registration Statement and such other documents, including the Articles of
Incorporation and Bylaws of the Company, each as amended to date, as we have
deemed necessary to enable us to express the opinion set forth herein. In
addition, we have relied upon oral or written representations of officers of the
Company concerning factual matters, and we have examined and relied on the
originals or copies, certified or otherwise identified to our satisfaction as
conforming to the originals thereof, of such other documents and corporate
records of the Company and such other instruments and certificates of public
officials and other persons as we have deemed appropriate. We have assumed the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies, and the
genuineness of all signatures on all documents reviewed by us.
Based on the foregoing and subject to the limitations and qualifications
set forth herein, we are of the opinion that:
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[BROWN & BAIN, P.A. LETTERHEAD]
Prologic Management
Systems, Inc. - 2 - March 4, 1997
The Shares of Common Stock to be issued by the Company pursuant to the
Registration Statement have been duly authorized, and upon issuance and
delivery in accordance with the terms of the Warrant will be duly and validly
issued and fully paid and nonassessable.
This opinion is limited to the present laws of the State of Arizona and
the present federal laws of the United States and to the facts as they
presently exist. We hereby consent to references to our firm under the caption
"Legal Matters" in the Registration Statement and to the use of this opinion as
an exhibit to the Registration Statement. In giving this consent, we do not
hereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act, or the rules and regulations of
the Commission thereunder.
Very truly yours,
/s/ Brown & Bain, P.A.
Brown & Bain, P.A.
Prologic Management Systems, Inc.
2030 East Speedway Boulevard
Tucson, Arizona 85719
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Exhibit 23.1
ACCOUNTANTS' CONSENT LETTER
The Board of Directors
Prologic Management Systems, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 to register 50,000 shares under the 1994 stock option plan of Prologic
Management Systems, Inc. of our report dated June 3, 1996, relating to the
consolidated balance sheet of Prologic Management Systems, Inc. and subsidiary
as of March 31, 1996, and the released consolidated statements of operations,
changes in shareholders' equity and cash flows for each of the years in the
two-year period ended March 31, 1996, which report appears in the March 31,
1996, annual report on Form 10-KSB of Prologic Management Systems, Inc.
/s/ KPMG Peat Marwick LLP
Phoenix, Arizona
March 13, 1997
