As Filed with the Securities and Exchange Commission on October 29, 2001
File 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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MAI SYSTEMS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 22-2554549
(State or Other Jurisdiction of (IRS Employer ID No.)
Incorporation or Organization)
9601 JERONIMO ROAD
IRVINE, CALIFORNIA 92618
(Address of Principal Executive Offices)
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MAI SYSTEMS CORPORATION 1995 NON-EMPLOYEE DIRECTORS OPTION PLAN
(Full Title of the Plan)
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W. BRIAN KRETZMER, CHIEF EXECUTIVE OFFICER and PRESIDENT
MAI SYSTEMS CORPORATION
9601 JERONIMO ROAD
IRVINE, CALIFORNIA 92618
(Name and Address of Agent for Service)
(949) 598-6000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE FEE
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Common Stock, $.01 per share...... 250,000(2) $0.24 $60,000 $15.00
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) under the Securities Act of 1933,
as amended and based upon an average of the high and low prices reported on
the American Stock Exchange on October 25, 2001.
(2) This registration statement shall also cover any additional shares of our
common stock ("Common Stock") which become issuable under the MAI Systems
Corporation Non-Employee Director's Option Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the outstanding shares of Common Stock of the Registrant.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Commission are
incorporated herein by reference:
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
2000, as amended by the Company's Amendment No. 1 to Form 10-K filed
on October 26, 2001 (the "Annual Report").
o Our Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 2001 and June 30, 2001;
o All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act; and
o The description of Common Stock contained in our report on Form 8-A/A
filed with the Commission on February 24, 1994 pursuant to the
Exchange Act.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock offered hereby have been passed
upon for us by David M. Griffith, Esq., our general counsel. Mr. Griffith
current holds a warrant to acquire 25,000 shares of our common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Delaware law, our certificate of incorporation includes a
provision that eliminates the personal liability of our directors to us or our
stockholders for monetary damages for breach of fiduciary duty as a director.
Article VI of our by-laws provides:
"SECTION 1. Indemnification. (a) Any person made a party or threatened to
be made a party to a threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
by an action or suit by or in the right of the Corporation to procure a judgment
in its favor) by reason of the fact that he or she is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by the Corporation against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption hereunder that the
person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, that the person had
reasonable cause to believe that his or her conduct was unlawful.
(b) Any person made a party or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee or agent
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of another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified by the Corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection with the
defense or settlement of such action if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made
hereunder in respect of any claim, issue or matter as to which the person shall
be adjudged liable to the Corporation for negligence or misconduct in the
performance of his or duty to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which said Court of Chancery or such other court shall deem proper.
(c) To the extent that any person referred to above has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) above, or in defense of any
claim, issue or matter therein, he or she shall be indemnified by the
Corporation against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
(d) Any indemnification under subsections (a) and (b) above (unless
ordered by a court) shall be made only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he or she has met the applicable standard
of conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders entitled to vote at any meeting by
majority vote of the quorum present.
(e) Expenses incurred in defending any civil, criminal, administrative
or investigative action, suit or proceeding by a person who may be entitled to
indemnity under the above provisions may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding if authorized by a
majority vote of a quorum of the Board of Directors of the Corporation who are
not parties to such action, suit or proceeding upon receipt of an understanding
by or on behalf of the person to whom payment is to be made that he or she will
repay the amounts advanced unless it shall ultimately be determined that he or
she is entitled to be indemnified by the Corporation in accordance with the
above provisions.
(f) The indemnification and advancement of expenses hereinabove
provided shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
provision of the Certificate of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested directors, insurance agreement, or otherwise, both
as to action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to hold the relationship to the Corporation referred to above and shall
inure to the benefit of the heirs, executors and administrations of any such
person."
We have entered or will enter into agreements to provide indemnification
for our directors and certain officers consistent with our articles of
incorporation and by-laws. In addition, we have also obtained a policy of
directors' and officers' liability insurance for our directors and officers to
insure directors and officers against the cost of defense, settlement or payment
of a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of MAI Systems
Corporation, incorporated by reference to Exhibit 3.1 to the Company's 1996
Annual Report on Form 10-K.
4.2 Amendment No. 1 to the Amended and Restated Certificate of Incorporation of
MAI Systems Corporation, incorporated by reference to Exhibit 3.2 to the
Company's 1996 Annual Report on Form 10-K.
4.3 By-laws of MAI Systems Corporation, incorporated by reference to Exhibit
2(b) to the Registrant's Registration Statement on Form 8-A/A filed with
the Commission on February 24, 1994.
3
4.4 Amendment No. 2 to the Amended and Restated Certificate of Incorporation of
MAI Systems Corporation incorporated by reference to Exhibit 3.4 to the
Company's 1998 Annual Report on Form 10-K.
4.5 MAI Systems Corporation 1995 Non-Employee Directors Option Plan.
5.1 Opinion of David M. Griffith, as to the validity of the securities
registered hereunder.
23.1 Consent of David M. Griffith (set forth in the opinion filed as Exhibit 5.1
to this Registration Statement).
23.2 Consent of KPMG LLP, independent auditors.
24 Power of Attorney (included on signature page).
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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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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, represents a
fundamental change in the information set forth in the Registration Statement;
(c) 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 (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 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 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.
(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 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 Exchange Act that is
incorporated by reference in this 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 provisions described in Item 6 above, or otherwise,
the Registrant has been advised that in the opinion of the 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.
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SIGNATURES
In accordance with 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 of filing on Form S-8 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of Irvine,
State of California on October 26, 2001.
MAI SYSTEMS CORPORATION
By: /s/ W. BRIAN KRETZMER
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W. BRIAN KRETZMER
Chief Executive Officer,
President and Secretary
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of W. Brian Kretzmer and James W. Dolan, his
true and lawful attorneys-in-fact and agents, with full power or substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective amendments,
to this Registration Statement and any related Rule 462(b) registration
statement or amendment thereto, 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 and 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 his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
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/s/ RICHARD S. RESSLER Chairman of the Board and Director October 26, 2001
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RICHARD S. RESSLER
/s/ W. BRIAN KRETZMER Chief Executive Officer, President and October 26, 2001
------------------------------ Secretary (Principal Executive Officer)
W. BRIAN KRETZMER
/s/ JAMES W. DOLAN Chief Financial and Operating Officer October 26, 2001
------------------------------ (Principal Financial and Accounting Officer)
JAMES W. DOLAN
/s/ MORTON O. SHAPIRO Director October 26, 2001
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MORTON O. SHAPIRO
/s/ ZOHAR LOSHITZER Director October 26, 2001
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ZOHAR LOSHITZER
/s/ STEPHEN ROSS Director October 26, 2001
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STEPHEN ROSS
/s/ STEVEN F. MAYER Director October 26, 2001
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STEVEN F. MAYER
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of MAI Systems
Corporation, incorporated by reference to Exhibit 3.1 to the Company's 1996
Annual Report on Form 10-K.
4.2 Amendment No. 1 to the Amended and Restated Certificate of Incorporation of
MAI Systems Corporation, incorporated by reference to Exhibit 3.2 to the
Company's 1996 Annual Report on Form 10-K.
4.3 By-laws of MAI Systems Corporation, incorporated by reference to Exhibit
2(b) to the Registrant's Registration Statement on Form 8-A/A filed with
the Commission on February 24, 1994.
4.4 Amendment No. 2 to the Amended and Restated Certificate of Incorporation of
MAI Systems Corporation incorporated by reference to Exhibit 3.4 to the
Company's 1998 Annual Report on Form 10-K.
4.5 Amended and Restated MAI Systems Corporation 1995 Non-Employee Directors
Option Plan.
5.1 Opinion of David M. Griffith, as to the validity of the securities
registered hereunder.
23.1 Consent of David M. Griffith (set forth in the opinion filed as Exhibit 5.1
to this Registration Statement).
23.2 Consent of KPMG LLP, independent auditors.
24 Power of Attorney (included on signature page).