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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 500,000 shares $1.8125 $906,250 $312.50
===========================================================================================
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(1) Plus such additional number of shares as may be required pursuant to
the Registrant's 1994 Stock Option Plan in the event of a stock dividend,
stock split, recapitalization or other similar event.
(2) 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.
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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"),
being registered for use under the Registrant's 1994 Stock Option Plan (the
"Plan").
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,
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specifically authorize broader indemnification of its directors (on either a
mandatory or permissive basis) than would otherwise 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
4.2 Specimen of Common Stock Certificate (incorporated by reference to
Exhibit 4.2 to the Registrant's Registration Statement on Form SB-2
(File No. 33-89384-LA) ("Form SB-2").
4.11 Prologic Management Systems, Inc. 1994 Stock Option Plan, Form of
Incentive Stock Option Agreement, and Form of Non-Qualified Stock
Option Agreement (incorporated by reference to Exhibit 10.15 to the
Form SB-2).
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 page 4 hereto)
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 of 1933;
(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.
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 a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 the
Registration Statement;
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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
with or furnished to the Commission 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 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.
(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
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
-------------------------------------
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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<CAPTION>
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 --------------
Operating 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
- ------------------------ --------------
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
Sequentially
Numbered
Exhibit No. Exhibit Page
- ----------- ------- ----
<S> <C> <C>
4.2 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.2 to the Registrant's Registration Statement on Form SB-2
(File No. 33-89384-LA) ("Form SB-2")
4.11 Prologic Management Systems, Inc. 1994 Stock Option Plan, Form of
Incentive Stock Option Agreement, and Form of Non-Qualified Stock
Option Agreement (incorporated by reference to Exhibit 10.15 to the
Form SB-2).
5 Opinion of Brown & Bain, P.A. 7
23.1 Consent of KPMG Peat Marwick LLP. 9
23.2 Consent of Brown & Bain, P.A. (included in Exhibit 5 hereto) 7
24 Power of Attorney (included on page 5 hereto) 5
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Exhibit 5
[BROWN & BAIN LETTERHEAD]
March 5, 1997
Prologic Management Systems, Inc.
Registration Statement on Form S-8
Covering Shares Issuable Under 1994 Stock Option Plan
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 500,000
shares (the "Shares") of the Company's common stock, without par value (the
"Common Stock"), which may be issued from time to time upon the exercise of
stock options granted pursuant to the Company's 1994 Stock Option Plan (the
"Plan"). 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 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:
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 Plan will be duly and validly
issued and fully paid and nonassessable.
<PAGE> 2
[BROWN & BAIN P.A. LETTERHEAD]
Prologic Management
Systems, Inc. -2- March 4, 1997
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 500,000 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 related 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
