AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 SOUTH 52ND STREET, TEMPE, AZ 85281, (480-394-9100)
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
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CONSYGEN, INC. 2000 COMBINATION STOCK OPTION PLAN
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(Full title of Plans)
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A. LEWIS BURRIDGE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
125 SOUTH 52ND STREET, TEMPE, AZ 85281
(480) 394-9100
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
WITH A COPY TO:
JOHN G. NOSSIFF, JR., ESQ.
BROWN, RUDNICK, FREED & GESMER
ONE FINANCIAL CENTER, BOSTON, MASSACHUSETTS 02111
(617) 856-8200
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to Be Offering Price Aggregate Registration
Securities to Be Registered Registered Per Share(1) Offering Price(1) Fee
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Common Stock, $.003 par value 5,000,000 $1.234 $6,170,000 $1,629
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 under the Securities Act of 1933, on the basis of the average
of the high and low reported price of the Common Stock as reported on the
National Association of Securities Dealers OTC Bulletin Board on May 1,
2000.
(2) 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.
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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-KSB, Form 10-KSB/A and Form
10-KSB/A2 for the fiscal year ended May 31, 1999 filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) All other reports of the Registrant filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Registrant's documents referred to paragraph (a) above; and
(c) 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
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Number Description
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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)).
5** Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1** Consent of Brown, Rudnick, Freed & Gesmer (contained in its opinion
filed as Exhibit 5).
23.2** Consent of King, Weber & Associates, P.C.
23.3** Consent of Wolinetz, Gottlieb & Lafazan, P.C.
24** Power of Attorney (included on the Signature Page of this Registration
Statement).
99.1** ConSyGen, Inc. 2000 Combination Stock Option Plan.
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* 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.
** Filed herewith.
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 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;
(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.
(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.
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 April
12, 2000.
CONSYGEN, INC.
By: /s/ A. Lewis Burridge
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A. LEWIS BURRIDGE, PRESIDENT
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints A. Lewis Burridge and Jason Genet, 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
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/s/ Robert L. Stewart Chairman of the Board April 12, 2000
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Robert L. Stewart
/s/ A. Lewis Burridge President, Chief Executive April 12, 2000
- ----------------------- Officer and Director
A. Lewis Burridge (Principal Executive Officer)
/s/ Eric J. Strasser Vice President and Chief Financial April 12, 2000
- ----------------------- Officer (Principal Financial
Eric J. Strasser Officer)
/s/ Andrew Lee Director April 12, 2000
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Andrew Lee
/s/ John L. Caldwell Director April 12, 2000
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John L. Caldwell
/s/ Donald P. Knode Director April 12, 2000
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Donald P. Knode
EXHIBIT INDEX
Exhibit Sequential
Number Page No.
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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)).
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer. **
23.1 Consent of Brown, Rudnick, Freed & Gesmer (contained in its **
opinion filed as Exhibit 5).
23.2 Consent of King, Weber & Associates, P.C. **
23.3 Consent of Wolinetz, Gottlieb & Lafazan, P.C. **
24 Power of Attorney (included on the Signature Page of this **
Registration Statement).
99.1 ConSyGen, Inc. 2000 Combination Stock Option Plan. **
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* 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.
** Filed herewith.