As filed with the Securities and Exchange Commission on March 3, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MEDIA LOGIC, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts
-------------------------------
(State or other jurisdiction of
incorporation or organization)
04-2772354
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(I.R.S. Employer
Identification No.)
310 South Street, Plainville, Massachusetts 02762
(508) 695-2006
--------------------------------------------
(Address, including zip code,
and telephone, including area code,
of registrant's principal executive offices)
William E. Davis, Jr.
Chief Executive Officer
Media Logic, Inc.
310 South Street
Plainville, Massachusetts 02762
(508) 695-2006
---------------------------------------
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
Copy to:
Richard R. Kelly, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
(617) 542-6000
--------------------------------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /x/.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier registration statement for the
same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
------------------------------
Calculation of Registration Fee
Proposed Proposed
maximum maximum
Title of each class offering aggregate Amount of
of securities to be Amount to be price per offering registration
registered registered unit (1) price (1) fee
- --------------------------------------------------------------------------------
Common Stock, par 5,000 $2.79 $13,950 $4.23
value $.01 per share
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based
upon the average of the high and low sales prices of the Registrant's
Common Stock on the American Stock Exchange on February 25, 1997.
------------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
MEDIA LOGIC, INC.
5,000 Shares of Common Stock
(Par Value $.01 Per Share)
The 5,000 shares of Common Stock of Media Logic, Inc., a Massachusetts
corporation (the "Company" or "Media Logic"), offered hereby are being sold by
the selling stockholder identified herein (the "Selling Stockholder"). Such
offers and sales may be made on the American Stock Exchange, or otherwise, at
prices and on terms then prevailing, or at prices related to the then-current
market price, or in negotiated transactions, or by underwriters pursuant to an
underwriting agreement in customary form, or in a combination of any such
methods of sale. The Selling Stockholder may also sell such shares in accordance
with Rule 144 under the Securities Act of 1933, as amended (the "1933 Act"). The
Selling Stockholder is identified and certain information with respect to the
Selling Stockholder is provided under the caption "Selling Stockholder" herein,
to which reference is made. The expenses of the registration of the securities
offered hereby, including fees of counsel for the Company, will be paid by the
Company. The following expenses will be borne by the Selling Stockholder:
underwriting discounts and selling commissions, if any, and the fees of legal
counsel, if any, for the Selling Stockholder. The filing by the Company of this
Prospectus in accordance with the requirements of Form S-3 is not an admission
that the person whose shares are included herein is an "affiliate" of the
Company.
The Selling Stockholder has advised the Company that the Selling
Stockholder has not engaged any person as an underwriter or selling agent for
any of such shares, but the Selling Stockholder may in the future elect to do
so, and the Selling Stockholder will be responsible for paying such a person or
persons customary compensation for so acting. The Selling Stockholder and any
broker executing selling orders on behalf of any Selling Stockholder may be
deemed to be "underwriters" within the meaning of the 1933 Act, in which event
commissions received by any such broker may be deemed to be underwriting
commissions under the 1933 Act. The Company will not receive any of the proceeds
from the sale of the securities offered hereby. The Common Stock is listed on
the American Stock Exchange under the symbol TST. On February 25, 1997, the
closing sale price of the Common Stock, as reported by the American Stock
Exchange, was $2.75 per share.
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THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" ON PAGE 4 OF THIS PROSPECTUS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
No person is authorized in connection with any offering made hereby to
give any information or to make any representations other than as contained in
this Prospectus, and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company. This Prospectus is
not an offer to sell, or a solicitation of an offer to buy, by any person in any
jurisdiction in which it is unlawful for such person to make such an offer or
solicitation. Neither the delivery of this Prospectus nor any sales made
hereunder shall under any circumstances create any implication that the
information contained herein is correct as of any time subsequent to the date
hereof.
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The date of this Prospectus is ________, 1997.
AVAILABLE INFORMATION
The Company is subject to certain informational reporting requirements
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). These reports, proxy statements and
other information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024 of the Commission's office at 450
Fifth Street, N.W., Judiciary Plaza, Washington, DC 20549, and at its regional
offices located at 7 World Trade Center, Suite 1300, New York, NY 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661. Copies
of such reports, proxy statements and other information can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, DC 20549 at prescribed rates. The Commission maintains a Web
site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission.
The address of the Commission's Web site is http://www.sec.gov. The Company's
Common Stock is traded on the American Stock Exchange. Reports and other
information concerning the Company may be inspected at the offices of the
American Stock Exchange, 86 Trinity Place, New York, New York 10006-1181.
Additional updating information with respect to the securities covered herein
may be provided in the future to purchasers by means of appendices to this
Prospectus.
The Company has filed with the Commission in Washington, DC a
registration statement (herein, together with all amendments and exhibits,
referred to as the "Registration Statement") under the 1933 Act with respect to
the securities offered or to be offered hereby. This Prospectus does not contain
all of the information included in the Registration Statement, certain items of
which are omitted in accordance with the rules and regulations of the
Commission. For further information about the Company and the securities offered
hereby, reference is made to the Registration Statement and the exhibits
thereto.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any document incorporated herein by reference, excluding exhibits. Requests
should be made to Media Logic, Inc., 310 South Street, Plainville, MA 02762,
telephone (508) 695-2006 and directed to the attention of Paul M. O'Brien, Vice
President and Chief Financial Officer.
2
TABLE OF CONTENTS
PAGE
RISK FACTORS.............................................................4
THE COMPANY..............................................................7
SELLING STOCKHOLDER......................................................8
PLAN OF DISTRIBUTION.....................................................8
LEGALITY OF COMMON STOCK.................................................9
EXPERTS..................................................................9
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE........................9
3
RISK FACTORS
An investment in the shares being offered by this Prospectus involves a
high degree of risk. In addition to the other information contained in this
Prospectus or incorporated herein by reference, prospective investors should
carefully consider the following risk factors before purchasing the shares
offered hereby. This Prospectus contains and incorporates by reference
forward-looking statements within the "safe harbor" provisions of the Private
Securities Litigation Reform Act of 1995 which are based on management's current
expectations. To the extent that any of the statements contained herein relating
to the Company's products and its operations are forward looking, such
statements are based on management's current expectations and involve a number
of uncertainties and risks.
Reference is also made in particular to the discussion set forth under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in the Company's Annual Report on Form 10-K and Amendment No. 1 to
the Form 10-K on Form 10-K/A for the fiscal year ended March 31, 1996
(collectively, the "Form 10-K"), the Company's Quarterly Report on Form 10-Q and
Amendment No. 1 to the Form 10-Q on Form 10-Q/A for the quarter ended June 30
1996, the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996, the Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1996, and under "Description of Business" in the Form 10-K,
incorporated in this Prospectus by reference. Both the forward-looking
statements contained in this Prospectus and those incorporated herein by
reference are based on current expectations that involve a number of
uncertainties including those set forth in the risk factors below. Actual
results could differ materially from those projected in the forward-looking
statements.
Uncertainties Related to Company's Ability to Raise Additional
Necessary Capital. The Company has spent and expects to continue to spend
substantial funds for continuation of the research and development of product
candidates and will also require additional funds in order to manufacture,
market and sell its products. The Company anticipates that its existing cash
resources will allow it to maintain its current and planned operations
through mid to late March 1997. Because of its continuing losses from
operations, the Company will be required to obtain additional capital in
order to continue its operations. In December 1996, the Company announced it
was seeking up to $5,000,000 in additional financing to be used primarily to
strengthen the Company's marketing capabilities for the ADL product line.
Although the Company has been actively pursuing additional financing
opportunities, to date, the Company has not secured a committed source of
additional funds. An investor has expressed an intention to invest in the
Company, subject to satisfaction of its due diligence review. There can be no
assurance, however, that a commitment to invest will result or that closing
of a financing will occur. The Company has no assurance that it will be able
to raise additional capital in a timely manner or on favorable terms, if at
all. If the Company is unable to secure additional financing, the Company
will be forced to curtail or discontinue its operations by the end of the
current fiscal quarter.
Shift in Business Focus. While, in fiscal year 1996, the Company still
derived most of its revenue from sales of its certifiers, evaluators and
duplicators for floppy disks and tape, the Company has shifted its focus to its
automated tape libraries for the data storage market. In fiscal year 1996, the
Company sold only pre-production units of its automated data library ("ADL")
products. The Company first commenced sales of its production units of ADL
products, other than evaluation units, in the second quarter of fiscal year 1997
and therefore has limited experience in selling its ADL products . The Company
expects to derive a substantial majority of its total revenue and net income
from sales of its ADL products in the future. Continued growth of the Company's
ADL business will depend upon several factors, including demand for these
libraries, the Company's ability to develop new products to meet the changing
requirements of its customers, technological change and competitive pressures.
There can be no assurance that the Company's ADL business will take hold and
grow.
Competition. Competition in the data storage market, including the
automated tape library market, is intense, with a large number of companies in
these markets. Many of the Company's current and potential competitors have
longer operating histories, greater name recognition, larger installed customer
bases and significantly greater financial, technical and marketing resources
than the Company. As a result, they may be able to adapt more quickly to new or
emerging technologies and changes in customer requirements, or to devote greater
resources to the promotion and sale of their products than the Company. An
increase in competition could result in price reductions and loss of market
share. Such competition and any resulting reduction in gross margins could have
a material adverse effect on the Company's business, financial condition and
results of operations.
Rapid Technological Change; Dependence on New Product Development. The
computer industry in general, and the markets for the Company's automated tape
library products in particular, are characterized by rapidly changing
technology, frequent new product introductions, and significant competition. In
order to keep pace with this rapidly changing market environment, the Company
must continually develop and incorporate into its products new technological
advances and features desired by the marketplace at acceptable prices. The
successful development and commercialization of new products involves many
risks, including the identification of new product opportunities, timely
completion of the development process, the control and recoupment of development
and production costs and acceptance by customers of the Company's products.
There can be no assurance that the Company will be successful in identifying,
developing, manufacturing and marketing new products in a timely and cost
effective manner, that products or technologies developed by others will not
render the Company's products or technologies uncompetitive, or that the
Company's products will be accepted in the marketplace.
4
Protection of Proprietary Technology. The Company's ability to compete
effectively with other companies will depend, in part, on the ability of the
Company to maintain the proprietary nature of its technology. There can be no
assurance that competitors in both the United States and foreign countries, many
of which have substantially greater resources and have made substantial
investments in competing technologies, do not have or will not obtain patents
that will prevent, limit or interfere with the Company's ability to make and
sell its products or intentionally infringe the Company's patents. While the
Company possesses or licenses certain patent rights, it relies in large part on
unpatented proprietary technology, and there can be no assurance that others may
not independently develop the same or similar technology, whether or not
patented, or otherwise obtain access to the Company's proprietary technology.
Cyclical Nature of the Computer Industry. The computer industry is
highly cyclical and has historically experienced periodic downturns. The
cyclical nature of the computer industry is beyond the control of the Company.
As an example, the Company experienced a substantial reduction in demand for its
original product line (floppy disk certification, testing and duplication
equipment). A similar decrease in demand for products in the category of its new
products (automated tape libraries) could materially adversely affect its
business and products.
Recent Losses. For the nine month period ended December 31, 1996, the
Company incurred a loss of $3,159,224. For the fiscal year ended March 31, 1996,
the Company incurred a loss of $7,818,919 on revenues of $3,578,236, and for the
fiscal year ended March 31, 1995, the Company incurred a loss of $9,981,320 on
revenues of $5,835,694. These recent losses and reductions in revenues are
primarily the result of a decline in the revenues generated in the Company's
traditional markets during a period when the Company was making a large
investment in its ADL technology. The Company believes that the trends that
resulted in its losses could continue for the foreseeable future.
Dependence on Key Personnel. The Company's success depends to a
significant extent on the performance of its senior management, including the
Chief Executive Officer and President, William E. Davis, Jr., Vice President of
Sales, B. Edward Fitzgibbons, Director of Engineering, James Hackathorn, and
Vice President and Chief Financial Officer, Paul M. O' Brien. Competition for
highly skilled employees with technical, management and other specialized
training is intense in the computer industry. The Company's failure to attract
additional qualified employees or to retain the services of key personnel could
materially adversely affect the Company's business.
Volatility of Share Price. Market prices for securities of technology
companies have been volatile. The market price for the Company's Common Stock
has fluctuated significantly since public trading commenced in 1987, and it is
likely that the market price will continue to fluctuate in the future. Quarterly
fluctuations in operating results, announcements by the Company or the Company's
present or potential competitors, technological innovations or new commercial
products or services, developments or disputes concerning patent or proprietary
rights and other events or factors may have a significant impact on the
Company's business and on the market price of the Common Stock.
Control by Existing Management and Stockholders. The directors,
officers and principal stockholders of the Company and certain of their
affiliates and/or family members beneficially own in the aggregate approximately
5
30.9% of the Company's Common Stock (including shares issuable upon exercise
of options held by such persons, which options are currently exercisable). As a
result of such ownership, these stockholders will exert influence over all
matters requiring approval by the stockholders of the Company, including the
election of directors. This percentage may increase to approximately 50% or more
if and when the contemplated private placement closes. See "- Uncertainties
Related to Company's Ability to Raise Additional Necessary Capital". In that
case, such group could elect the entire Board of Directors. One shareholder,
Raymond Leclerc, has a contractual right to Board representation, and investors
in the contemplated private placement, if it closes, may have a similar right.
Certain Charter and By-Law Provisions and Massachusetts Laws May Affect
Stock Price. The Company's Restated Articles of Organization and By-laws contain
provisions that may make it more difficult for a third party to acquire control
of, or discourage acquisition bids for, the Company. In addition, certain
Massachusetts laws contain provisions that may have the effect of making it more
difficult for a third party to acquire control of, or discourage acquisition
bids for, the Company. These provisions could limit the price that certain
investors might be willing to pay in the future for shares of Common Stock.
Shares Eligible for Future Sale. Sales of substantial amounts of Common
Stock in the public market could have an adverse effect on the price of the
Company's Common Stock. Approximately 3,813,263 shares of Common Stock are
currently freely tradable on the open market. In addition, approximately
2,502,646 shares are eligible for sale pursuant to Rule 701 or Rule 144 of the
Act. Also, there were a total of 604,088 options to purchase Common Stock
outstanding as of January 1, 1997 pursuant to the Company's stock option plans,
and 333,787 of such options can be exercised at any time prior to their
respective expiration dates. In September 1995, the Company issued 1,000,000
shares of Common Stock to Raymond W. Leclerc in a private placement. Mr. Leclerc
has the right under an agreement with the Company to include his shares in
certain registrations filed by the Company under the Act. Also, in addition to
the 5,000 shares of Common Stock offered hereby by Lee H. Elizer, Mr. Elizer is
entitled to receive an additional 7,000 shares of Common Stock in October 1997
and 8,000 shares of Common Stock in October 1998, which under the terms of his
separation agreement with the Company, are expected to be registered under the
Act following their issuance.
Absence of Dividends. The Company has not paid dividends since its
inception and does not anticipate paying any dividends in the foreseeable
future.
6
THE COMPANY
Media Logic, Inc. was incorporated in 1982 to develop and manufacture
certification equipment to be used by manufacturers of flexible storage media
such as floppy disks. The Company's principal product line is automated tape
library systems for data storage and retrieval, which was introduced in fiscal
year 1996.
The Company's data storage libraries have been developed by MediaLogic
ADL, Inc. ("MediaLogic ADL"), a subsidiary of the Company which was established
in 1994 to develop, market and sell automated data storage libraries. In fiscal
year 1996, MediaLogic ADL introduced automated tape libraries in 4mm and 8mm
tape technologies and expects to introduce in fiscal year 1997, automated tape
libraries with digital linear tape ("DLT") technology. Tape drives from a number
of manufacturers are supported by the libraries as are system management and
software configurations from a variety of vendors. In fiscal 1996, the Company
sold only pre-production units, and began delivering production units in the
second quarter of fiscal 1997. Potential customers for the ADL line of automated
tape libraries are data dependent companies in all types of businesses.
The certification, test and duplication product line, representing the
Company's historical products, but which is not expected to be the basis for the
bulk of the Company's future business, includes: (1) certifiers which are used
by computer disk manufacturers to test each disk as it is manufactured and to
sort disks into three industry established quality categories, (2) tape
certification and evaluation equipment used by manufacturers and suppliers of
magnetic tapes, to evaluate and qualify the quality of the tapes, and (3) floppy
disk duplication equipment utilizing industrial disk drives which have been
developed by the Company for use by software publishers and duplicators.
The principal executive offices of the Company are located at 310 South
Street, Plainville, Massachusetts 02762, and the Company's telephone number is
(508) 695-2006.
7
SELLING STOCKHOLDER
The shares offered hereby were acquired from the Company by the Selling
Stockholder pursuant to a separation agreement dated as of October 23, 1996
among the Selling Stockholder, MediaLogic ADL and the Company (filed as Exhibit
99 to the registration statement of which this Prospectus is a part). The
following table sets forth information with respect to the beneficial ownership
of the Company's Common Stock as of February 25, 1997 by the Selling
Stockholder.
Shares Number of Shares
Owned Prior to Shares Being Owned After
Selling Stockholder Offering Offered Offering(1)
- ------------------- -------- ------- -----------
Number Percent
------ -------
Lee H. Elizer (2) 5,000 5,000 0 --
- ----------
(1) Assuming all shares offered are sold.
(2) Mr. Elizer served as the Chief Executive Officer and President and as a
Director of MediaLogic ADL, the Company's subsidiary, from July 1994
through October 1996.
PLAN OF DISTRIBUTION
The 5,000 shares of Common Stock of the Company offered hereby may be
offered and sold from time to time by the Selling Stockholder, or by pledgees,
donees, transferees or other successors in interest. The Selling Stockholder
will act independently of the Company in making decisions with respect to the
timing, manner and size of each sale. Such sales may be made on the American
Stock Exchange or otherwise, at prices related to the then current market price
or in negotiated transactions, including pursuant to an underwritten offering or
one or more of the following methods: (a) purchases by a broker-dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (b) ordinary brokerage transactions and transactions in which a
broker solicits purchasers; and (c) block trades in which a broker-dealer so
engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction. In effecting
sales, brokers or dealers engaged by the Selling Stockholder may arrange for
other brokers or dealers to participate. Brokers or dealers may receive
commissions or discounts from the Selling Stockholder or from the purchasers in
amounts to be negotiated immediately prior to the sale. The Selling Stockholder
may also sell such shares in accordance with Rule 144 under the 1933 Act.
The Company has agreed to use reasonable efforts to maintain the
effectiveness of the registration of the shares being offered hereunder until
the earlier of the date upon which all of the shares of Common Stock offered
hereby have been sold or one hundred eighty (180) days following the effective
date of the registration statement of which this Prospectus is a part.
The Selling Stockholder and any brokers participating in such sales may
be deemed to be underwriters within the meaning of the 1933 Act. There can be no
assurance that the Selling Stockholder will sell any or all of the shares of
Common Stock offered hereunder.
All proceeds from any such sales will be the property of the Selling
Stockholders who will bear the expense of underwriting discounts and selling
commissions, if any, and the Selling Stockholder's own legal fees.
8
LEGALITY OF COMMON STOCK
The validity of the issuance of the shares of Common Stock offered
hereby is being passed upon for the Company by Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., Boston, Massachusetts. Richard R. Kelly, Esq., a
member of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., is the Clerk of
the Company.
EXPERTS
The consolidated balance sheets of the Company as of March 31, 1996 and
1995 and the related consolidated statements of operations, stockholders' equity
and cash flows for each of the three years in the period ended March 31, 1996,
incorporated by reference in this Prospectus and elsewhere in the registration
statement, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K and Amendment No. 1 to the
Form 10-K on Form 10-K/A for the fiscal year ended March 31, 1996, filed
pursuant to Section 13 or 15(d) of the 1934 Act (File Number 1-9605).
(b) The Company's Quarterly Report on Form 10-Q and Amendment No. 1 to
the Form 10-Q on Form 10-Q/A for the fiscal quarter ended June 30, 1996, the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 1996, and the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1996, filed pursuant to Section 13 or 15(d) of the 1934 Act
(File No. 1-9605).
(c) The description of the Company's capital stock contained in the
Company's registration statement on Form 8-A under the 1934 Act (File No.
1-9605), including amendments or reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act,
prior to the filing of a post-effective amendment which indicates that all
securities covered by this Prospectus have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
9
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following expenses incurred in connection with the sale of the
securities being registered will be borne by the Registrant. Other than the
SEC registration fee and the AMEX fees, the amounts stated are estimates.
SEC Registration Fee $ 4.23
AMEX Fees $ 2,000
Legal Fees and Expenses 8,000
Accounting Fees and Expenses 10,000
Miscellaneous 500
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TOTAL $20,504.23
==========
The Selling Stockholder will bear the expense of the Selling
Stockholder's own legal counsel and miscellaneous fees and expenses, if any.
Item 15. Indemnification of Officers and Directors
Article VI.A of the Company's Restated Articles of Organization
provides that no Director of the Company shall be personally liable to the
corporation or to any of its stockholders for monetary damages for any breach of
fiduciary duty by such Director as a Director notwithstanding any provision of
law imposing such liability; provided, however, that, to the extent required
from time to time by applicable law, Article VI.A shall not eliminate the
liability of a Director, to the extent such liability is provided by applicable
law, (a) for any breach of a Director's duty of loyalty to the corporation or
its stockholders, (b) for acts or omissions not in good faith which involve
intentional misconduct or a knowing violation of law, (c) under Section 61 or
Section 62 of the Business Corporation law of the Commonwealth of Massachusetts,
or (d) for any transaction from which the Director derived an improper personal
benefit. No amendment to or repeal of Article VI.A shall apply to or have any
effect on the liability or alleged liability of any Director for or with respect
to any acts or omissions of such Director occurring prior to the effective date
of such amendment or repeal.
In addition, the Company's By-Laws provide as follows:
Article First, Section 12. Indemnity. (a) The Corporation
shall indemnify and reimburse out of the corporate funds any person (or
the personal representative of any person) who at any time serves or
shall have served as a Director, officer or employee of the
Corporation, or as a Director, officer or employee of another
Corporation the majority of the stock of which is owned by the
Corporation, whether or not in office at the time, against and for any
and all claims and liabilities to which he may be or become subject by
reason of such service, and against and for any and all expenses
necessarily incurred in connection with the defense or reasonable
settlement of any legal or administrative proceedings to which he is
made a party by reason of such service, except in relation to matters
as to which he shall be finally adjudged not to have acted in good
faith in the reasonable belief that his action was in the best interest
of the Corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan. In
effecting such indemnity and reimbursement, the stockholders may enter
into such agreements and direct the officers of the Corporation to make
such payment or payments and take such other action (including
employment of counsel to defend against such claims and liabilities) as
may in their judgment be reasonably necessary or desirable. Such
indemnification or reimbursement shall not be deemed to exclude any
other rights or privileges to which such person may be entitled.
(b) The Board of Directors may by vote act to indemnify any or
all officers of the Corporation from liability for acts done by them in
good faith on behalf of the Corporation.
(c) The Directors may vote to defray the expense of defending
any claims brought against one or more Directors or other Officers on
account of any action purported to have been done in any official
capacity, and may vote to reimburse any such Director or other Officer
for any sum paid by him to settle any such claim; provided that if it
shall be finally determined by
I-1
judgment or decree of any court that any such Director or other Officer
is personally liable on account of any such claim, he shall reimburse
the Company for his pro rata share of any expense so defrayed or
reimbursement so made by the Company.
(d) To the extent legally permissible, the Corporation shall
indemnify each of its Directors and Officers against all liabilities
including expenses imposed upon or reasonably incurred by him in
connection with any action, suit or other proceeding in which he may be
involved or with which he may be threatened, while in office or
thereafter, by reason of his acts or omissions as such Director or
Officer, unless in such proceeding he shall be finally adjudged liable
by reason of dereliction in the performance of his duty as such
Director or Officer; provided, however, that such indemnification shall
not cover liabilities in connection with any matter which shall be
disposed of through a compromise payment by such Director or Officer,
pursuant to a consent decree or otherwise, unless such compromise shall
be approved as in the best interests of the Corporation, after notice
that it involves such indemnification, by a vote of the Board of
Directors in which no interested Director participates, or by a vote or
the written approval of the holders of a majority of the outstanding
stock at the time having the right to vote for Directors, not counting
as outstanding any stock owned by any interested Director or Officer.
The rights of indemnification hereby provided shall not be exclusive of
or affect any other rights to which any Director or Officer may be
entitled. As used in this paragraph, the terms "Director" and "Officer"
include their respective heirs, executors and administrators, and an
"interested" Director or Officer is one against whom as such the
proceedings in question or another proceeding on the same or similar
grounds is then pending.
I-2
Item 16. Exhibits.
Exhibit
Number Description
- ------ -----------
4.1 Article 4 of Restated Articles of Organization of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended March 31, 1993)
4.2 By-Laws of the Registrant (incorporated by reference to Exhibit 3.2 to
the Registrant's Registration Statement on Form S-18, No. 33-14722-B,
effective July 23, 1987)
4.3 Form of Common Stock Certificate (incorporated by reference to Exhibit
10.7 to the Registrant's Registration Statement on Form S-18, No.
33-14722B, effective July 23, 1987)
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (see
Exhibit 5)
24 Power of Attorney (filed in Part II of this Registration Statement)
99 Separation Agreement among Lee H. Elizer, MediaLogic ADL, Inc. and
Media Logic, Inc., dated October 23, 1996.
I-3
Item 17. Undertakings.
A. Rule 415 Offering
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 1933 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. 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) (Section 230.424(b) of
this chapter) 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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant with or
furnished to the Commission pursuant to Section 13 or Section 15(d) of the 1934
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the 1933
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
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. Filings Incorporating Subsequent Exchange Act Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the 1934 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. Request for Acceleration of Effective Date or Filing of Registration
Statement on Form S-8
Insofar as indemnification for liabilities arising under the 1933 Act
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 1933 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 1933 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, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Plainville, Massachusetts on February 28, 1997.
MEDIA LOGIC, INC.
By:/s/ William E. Davis, Jr.
----------------------------
William E. Davis, Jr.
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William E. Davis, Jr. and Paul M.
O'Brien, or any of them, his attorneys-in-fact, and agents each with the power
of substitution, for him in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement
(or any other registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933),
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
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 or
necessary to be done in and about the premises, as full 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 or his
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.
Signatures Title Date
- ---------- ----- ----
/s/ F. Michael Hruby, Ph.D. Chairman of the Board February 28, 1997
- ---------------------------
F. Michael Hruby, Ph.D.
/s/ William E. Davis, Jr. Director and Chief February 28, 1997
- --------------------------- Executive Officer and President
William E. Davis, Jr. (principal executive officer)
/s/ Paul M. O'Brien Vice President and Chief Financial February 28, 1997
- ------------------------ Officer (principal financial and
Paul M. O'Brien accounting officer)
/s/ Klaus J. Peter Director February 28, 1997
- ------------------------
Klaus J. Peter
/s/ Harold B. Shukovsky Director February 28, 1997
- ------------------------
Harold B. Shukovsky
/s/ Joseph L. Mitchell Director February 28, 1997
- ------------------------
Joseph L. Mitchell
/s/ Francis S. Wyman Director February 28, 1997
- ------------------------
Francis S. Wyman
/s/ Raymond W. Leclerc Director February 28, 1997
- ------------------------
Raymond W. Leclerc
I-5
MEDIA LOGIC, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-3 REGISTRATION STATEMENT
Exhibit Sequential
Number Description Page No.
- ------ ----------- --------
4.1 Article 4 of Restated Articles of Organization of
the Registrant (incorporated by reference to
Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended March 31, 1993
4.2 By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-18, No.
33-14722-B, effective July 23, 1987).
4.3 Form of Common Stock Certificate (incorporated by
reference to Exhibit 10.7 to the Registrant's
Registration Statement on Form S-18, No.
33-14722-B, effective July 23, 1987)
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., with respect to the legality of the
securities being registered (filed herewith)
23.1 Consent of Arthur Andersen LLP (filed herewith)
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. (Reference is made to Exhibit 5)
24 Power of Attorney (filed in Part II of this
Registration Statement)
99 Separation Agreement among Lee H. Elizer,
MediaLogic ADL, Inc. and Media Logic, Inc., dated
October 23, 1996 (filed herewith)
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