<PAGE> 1
As filed with the Securities and Exchange Commission on November 17, 1995
REGISTRATION NO. 33-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
MEDIA LOGIC, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2772354
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-------------------------
310 SOUTH STREET, PLAINVILLE, MASSACHUSETTS 02762
(508) 695-2006
(Address, including zip code, and telephone number, 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:
Justin P. Morreale, Esq.
John J. Concannon III, Esq.
Bingham, Dana & Gould
150 Federal Street
Boston, MA 02110
(617) 951-8000
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement is declared effective.
If the only securities being registered on this form are being offered pursuant
to a dividend or interest reinvestment plans, please check the following box.
/ /
<PAGE> 2
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 effective 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
<TABLE>
<CAPTION>
===============================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Shares to be Offering Aggregate Registration
to be Regist Price Offering Fee
Registered ered Per Share * Price*
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock, 130,909 $8.75 $1,145,454.00 $230.00
$.01 par
value
===============================================================================
<FN>
* Estimated solely for purposes of calculation of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933
based on the average high and low prices reported in the
consolidated trading system of the American Stock Exchange on
November 14, 1995.
</TABLE>
---------------------
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.
================================================================================
-2-
<PAGE> 3
DATED , 1995
----------
130,909 SHARES
MEDIA LOGIC, INC.
COMMON STOCK
This Prospectus ("Prospectus") of Media Logic, Inc., a Massachusetts
corporation (the "Company" or "Media Logic"), relates to up to 130,909 shares
(the "Shares") of the Company's Common Stock, $.01 par value (the "Common
Stock"), being sold by a shareholder of the Company (the "Selling Shareholder")
for its account. None of the proceeds from the sale of the Shares will be
received by the Company.
This offering is being made pursuant to an agreement between the
Company and the Selling Shareholder. All or a portion of the Shares may be
disposed of by the Selling Shareholder hereunder from time to time in one or a
combination of the following transactions: (a) transactions (which may involve
block transactions) on the American Stock Exchange, or otherwise, at market
prices prevailing at the time of sale or at prices related to such prevailing
market prices; or (b) privately negotiated transactions at negotiated prices,
including underwritten offerings. The Selling Shareholder may effect such
transactions by selling the Shares directly to purchasers or by selling the
Shares to or through underwriters, brokers or dealers and such underwriters,
brokers or dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholder or the purchasers of
the Shares for whom such underwriters, brokers or dealers may act as agent, or
to whom they sell as principal, or both (which compensation to a particular
underwriter, broker or dealer might be in excess of customary commissions or be
changed from time to time). The Selling Shareholder and any underwriters,
brokers, dealers or agents who participate in a sale of the Shares may be
deemed "underwriters" within the meaning of Section 2(11) of the Securities Act
and the commissions paid or discounts allowed to any of such underwriters,
brokers, dealers or agents in addition to any profits received on resale of the
Shares if any such underwriters, brokers, dealers or agents should purchase any
Shares as a principal may be deemed to be underwriting discounts or commissions
under the Securities Act.
On November 15, 1995 the last reported sale price of the Common Stock
on the American Stock Exchange was $9.00 per share. The Common Stock of the
Company is traded on the American Stock Exchange under the symbol TST.
-------------------
SEE "RISK FACTORS" ON PAGES 5 TO 7 FOR A DISCUSSION OF CERTAIN MATERIAL
FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE
COMMON STOCK OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR
<PAGE> 4
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
_________________________
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY UNDERWRITER, AGENT OR DEALER. NEITHER THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER IN SUCH JURISDICTION.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
THEREOF.
<TABLE>
<CAPTION>
================================================================================
Underwriting Proceeds to
Price to Discount Selling
Public and Shareholder
Commission (1)
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
Per See Text See Text Above See Text
Share Above Above
Total
================================================================================
<FN>
(1) The Company has agreed to prepare and file this Prospectus and the
related Registration Statement and supplements and amendments
thereto required by the Securities Act of 1933 with the Securities
and Exchange Commission and to deliver copies of the Prospectus to
the Selling Shareholder. The expenses relating to such filings,
estimated to be $20,000, will be borne by the Company.
</TABLE>
_________________________
The date of this Prospectus is , 1995.
---- ----
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<PAGE> 5
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports, proxy statements, information statements and
other information with the Securities and Exchange Commission (the
"Commission"), 450 Fifth Street, N.W., Washington, D.C. 20549. Such reports,
proxy statements, information statements and other information filed by the
Company with the Commission may be inspected and copies may be obtained (at
prescribed rates) at the Commission's Public Reference Section, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as the following
regional offices of the Commission: Seven World Trade Center, Suite 1300, New
York, New York 10048 and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. In addition, the Common Stock is
traded on the American Stock Exchange and certain of such materials may be
inspected at the offices of the American Stock Exchange, 86 Trinity Place, New
York, NY 10006.
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with the Commission with respect to the Common Stock being
offered pursuant to this Prospectus. As permitted by the rules and regulations
of the Commission, this Prospectus omits certain of the information contained
in the Registration Statement and the exhibits thereto. For further information
with respect to the Company and the Common Stock being offered pursuant to this
Prospectus, reference is hereby made to such Registration Statement, including
the exhibits filed as part thereof or incorporated by reference therein.
Statements contained in this Prospectus concerning the provisions of certain
documents filed with, or incorporated by reference in, the Registration
Statement are not necessarily complete, each such statement being qualified in
all respects by such reference. Copies of all or any part of the Registration
Statement, including the documents incorporated by reference therein or
exhibits thereto, may be obtained upon payment of the prescribed rates at the
offices of the Commission.
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<PAGE> 6
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (1) Annual Report on Form 10-K for the fiscal year ended
March 31, 1995; (2) Quarterly Report on Form 10-QSB for the quarterly periods
ended June 30 and September 30, 1995 and (3) description of capital stock
contained in the Company's registration statement filed under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description filed with the Commission pursuant to Section 13 of
the Exchange Act, are incorporated herein by reference.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the filing of a post- effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
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.
Any statement in the documents incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, on written or oral request
of such person, a copy of any or all of the documents incorporated by reference
herein (other than exhibits to such documents unless such exhibits are
incorporated by reference into such documents). Such written requests should
be addressed to the Company at 310 South Street, Plainville, Massachusetts
02762, Attention: Chief Financial Officer. Telephone requests may be directed
to the Chief Financial Officer at (508) 695-2006.
-4-
<PAGE> 7
THE COMPANY
Media Logic develops, manufactures and sells certification and
evaluation equipment for flexible computer storage media such as floppy disks
and magnetic tape. Certifiers are used by computer disk manufacturers to test
each disk as it is manufactured and to sort disks into three industry
established quality categories. The Company's tape certification and
evaluation equipment is used by manufacturers and suppliers of magnetic tape to
evaluate and classify the quality of the tape. The Company also develops,
manufactures and sells industrial disk drives and duplication equipment
incorporating the drives. Major customers for the industrial disk drives
include software publishers and duplicators.
In 1994 the Company established a subsidiary, Media Logic ADL ("ADL"),
and is currently devoting a substantial portion of its assets to developing,
marketing and selling automated data storage libraries. ADL's Scaleable
Library Architecture (SLA) includes radical design innovations for automated
libraries compared to existing library solutions. The Company expects to
introduce in Fiscal 1996 a product line of libraries which utilize 8mm tape,
4mm tape and digital linear tape (DLT) as storage media.
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.
RISK FACTORS
In addition to the other information in this Prospectus, including the
documents incorporated by reference herein, the following factors should be
considered carefully in evaluating the Company and its business before
purchasing the Common Stock offered hereby.
Rapid Technological Change. The computer industry is characterized by
rapid rates of technological change. While the Company believes that it is
presently a technological leader in the industry, and while the Company
allocates substantial resources to the maintenance of such leadership,
technological advances by any one or more of the present competitors of the
Company, or by future entrants into the Company's markets, could render
obsolete the present or future products of the Company.
Patents and 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 than the Company, will not obtain patents that will prevent, limit or
interfere with the Company's ability to make and sell its products. The
defense and prosecution of patent suits is both costly and time consuming, even
if the outcome is favorable. An adverse outcome in the defense of a patent suit
could subject the Company to significant liabilities to third parties, require
disputed rights to be licensed from third parties, or require the Company to
cease selling some of its products. While the Company has filed patent
applications relating to its ADL technology, the Company also
-5-
<PAGE> 8
depends upon unpatented proprietary technology and there can be no assurance
that others may not independently develop the same or similar technology or
otherwise obtain access to the Company's proprietary technology.
Recent Losses. For the six month period ended September 30, 1995 the
Company incurred a loss of $3,563,133. For the fiscal year ended March 31,
1995 the Company incurred a loss of $9,981,320 on revenues of $5,835,694 as
compared to net income of $729,918 on revenues of $15,489,263 in fiscal 1994
and net income of $4,228,409 on revenues of $21,267,208 in fiscal 1993. These
recent losses and reductions in revenues are primarily the result of (1) low
computer disk prices which has caused disk manufacturers to cancel or defer
investment in capital equipment, (2) a restriction on the availability of
credit by the Chinese government, and (3) the development of alternative
computer media such as the CD-ROM. The Company believes that the trends that
resulted in its losses could continue for the foreseeable future.
Development Stage of ADL Products; Uncertainty of Successful
Commercialization. The Company has established a subsidiary, Media Logic ADL,
Inc. ("Media Logic ADL"), to develop and sell automated data storage libraries.
The Company has devoted a substantial portion of its resources on this product
line. To date the Company has not begun to sell ADL products. Delays in
development or production may result in the Company's introduction of ADL
products later than anticipated, which would have an adverse effect on both the
Company's financial and competitive position. Moreover, there can be no
assurance that the ADL products will be technically or commercially successful.
Dependence on One Product Line. The Company expects to derive a
substantial majority of its future revenues from sales of its ADL product line.
Inability to successfully commercialize the ADL product line would have a
material adverse effect on the Company's business, financial condition and
results of operation.
Competition. Competition in the media certification, data storage and
data library markets is intense. There are a large number of companies in
these markets, some of which are substantially larger and have greater
financial resources, customer and product bases, and distribution alternatives
than the Company. The Company believes that the high level of competition in
these marketplaces will continue unabated. There can be no assurance that the
Company will be able to successfully compete against present or future sources
of competition or that competitive pressures faced by the Company will not have
a material adverse effect on the Company's results of operations.
Dependence on Key Personnel. The development of the Company's business
and operations will be dependent upon the efforts and talents of its
executive officers and other key employees. In particular, the Company will be
dependent upon the services of William E. Davis, Jr. and Paul M. O'Brien. Loss
of the services of one or more of these individuals or the inability to attract
or retain highly skilled personnel could adversely affect the Company's
operations.
-6-
<PAGE> 9
Volatility of Stock Prices of Technology Companies. In recent years,
stock markets have experienced extreme price and volume trading volatility.
This volatility has had a substantial effect on the market prices of securities
of many medium sized and smaller-capitalization companies, including technology
companies, for reasons frequently unrelated to the operating performance of the
specific companies. These broad market fluctuations may adversely affect the
market price of the Company's Common Stock. In addition, the trading price of
the Company's Common Stock could be subject to wide fluctuations in response to
quarter-to-quarter variations in operating results, announcements of new
products or technological innovations by the Company or its competitors, and
general market and economic conditions. Further, although the Common Stock is
listed on the American Stock Exchange, there is presently a limited trading
volume in the Common Stock. There can be no assurance that an active trading
market will continue and, therefore, holders of Common Stock may have
difficulty in trading 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 41.5% 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.
International Sales. In fiscal 1995, 74.6% of the Company's sales were
to customers outside the United States, particularly to Southeast Asia and
China. The Company expects sales outside the United States to continue to
account for a significant amount of the Company's sales in the future. While
the Company's activities and sales abroad are typically transacted in United
States dollars, the Company's activities are subject to risks common to foreign
activities, including governmental regulation, political and economic
instability, trade barriers and currency transaction risks.
Certain Charter and By-Law Provisions and Massachusetts Laws May Affect
Stock Price. The Company's Articles of Organization and By-laws contain
provisions that may have the effect of making it more difficult for a third
party to acquire control of, or of discouraging 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 of discouraging 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.
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<PAGE> 10
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Securities
offered hereby by the Selling Shareholder.
PLAN OF DISTRIBUTION
This offering is being made pursuant to an agreement between the
Company and the Selling Shareholder. All or a portion of the Shares may be
disposed of by the Selling Shareholder hereunder from time to time in one or a
combination of the following transactions: (a) transactions (which may involve
block transactions) on the American Stock Exchange, or otherwise, at market
prices prevailing at the time of sale or at prices related to such prevailing
market prices; or (b) privately negotiated transactions at negotiated prices,
including underwritten offerings. The Selling Shareholder may effect such
transactions by selling the Shares directly to purchasers or by selling the
Shares to or through underwriters, brokers or dealers and such underwriters,
brokers or dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholder or the purchasers of
the Shares for whom such underwriters, brokers or dealers may act as agent, or
to whom they sell as principal, or both (which compensation to a particular
underwriter, broker or dealer might be in excess of customary commissions or be
changed from time to time). The Selling Shareholder and any underwriters,
brokers, dealers or agents who participate in a sale of the Shares may be
deemed "underwriters" within the meaning of Section 2(11) of the Securities Act
and the commissions paid or discounts allowed to any of such underwriters,
brokers, dealers or agents in addition to any profits received on resale of the
Shares if any such underwriters, brokers, dealers or agents should purchase any
Shares as a principal may be deemed to be underwriting discounts or commissions
under the Securities Act.
In addition, any of the Securities which qualify for sale pursuant to
Rule 144 under the Securities Act, or otherwise pursuant to an applicable
exemption under the Securities Act, may be sold other than pursuant to this
Prospectus.
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<PAGE> 11
<TABLE>
SELLING SHAREHOLDER
The following table provides information, as of the date of this
Prospectus, with respect to the Common Stock beneficially owned by the Selling
Shareholder (which information has been furnished to the Company by the Selling
Shareholder). This offering is being made pursuant to an agreement between the
Company and the Selling Shareholder.
All of the Shares offered by the Selling Shareholder were acquired from
the Company in a transaction exempt from the registration requirements of the
Securities Act. All of the Shares offered hereby were acquired from the
Company as consideration for acting as a financial adviser to the Company.
Pursuant to the agreement between the Company and the Selling Shareholder, the
Company agreed to file with the Commission the Registration Statement, of which
this Prospectus is a part, with respect to the resale of the Shares. The
Company has committed to keep the Registration Statement effective until
September 25, 1997. However, the Company may in its discretion agree to extend
the effectiveness of the Registration Statement beyond such date.
<CAPTION>
Shares beneficially
owned after this Percentage of shares
Shares beneficially Offering (assuming owned after Offering
owned before all shares offered (assuming all shares
Selling Stockholder Offering are sold) offered are sold)
- --------------------- --------------------- ----------------------- -------------------------
<S> <C> <C> <C>
Advent International 130,909 0 0
Corporation (1)
<FN>
- -----------------------
(1) Such person acted as a financial adviser to the Company in connection with a private placement of
1,000,000 shares of the Company's Common Stock in September 1995. The Shares registered for resale
hereunder represent the consideration paid to such person for acting as a financial adviser. Other
than acting as a financial adviser in connection with such transaction, such person has not had any
position, office or other material relationship within the past three years with the Company or any
of its affiliates.
</TABLE>
EXPERTS
The Consolidated Financial Statements and Schedules 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 reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports. Reference is made to said reports which include an
explanatory paragraph that describes substantial doubt regarding the Company's
ability to continue as a going concern as discussed in Note 1 to the financial
statements.
VALIDITY OF OFFERED COMMON STOCK
The validity of the Common Stock offered hereby will be passed upon by
Bingham, Dana & Gould, 150 Federal Street, Boston, MA 02110.
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<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
ITEM 14 - OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<CAPTION>
Expenses of the Registrant in connection with the issuance and
distribution of the securities being registered are estimated as follows:
<S> <C>
SEC Registration Fee $ 230
AMEX Fees $ 2,619
Legal Fees and Expenses $ 10,000*
Accountants' Fees and Expenses $ 2,000*
Expenses of Qualification Under
State Securities Laws, Including
Attorneys' Fees $ 1,500*
Fees for Electronic Filing $ 300*
Miscellaneous $ 3,351*
Total $ 20,000
<FN>
- -------------------
*Estimated
</TABLE>
ITEM 15 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VI A of the Company's Restated Articles of Organization
provides that no director shall be personally liable to the Company 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 Company 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.
II-1
<PAGE> 13
In addition, the Company's By-laws provide as follows:
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 of 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
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.
II-2
<PAGE> 14
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 administrator, 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or person controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
II-3
<PAGE> 15
ITEM 16 - EXHIBITS
The following is a list of exhibits filed as a part of this
registration statement:
<TABLE>
<CAPTION>
Exhibits
- --------
<S> <C>
4 Specimen Certificate for Shares of Common Stock (1)
5 Opinion of Bingham, Dana & Gould
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Bingham, Dana & Gould (contained in EXHIBIT 5).
24 Power of Attorney (included on signature page)
<FN>
- -----------------
(1) The item listed is incorporated by reference herein to the Company's
Registration Statement on Form S-18 (number 33-14722B).
</TABLE>
ITEM 17 - 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 and
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 20 percent 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
II-4
<PAGE> 16
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, Form S-8 or
Form F-3 and 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, as amended (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 of 1933, as amended (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 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 Exchange Act (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 the initial bona fide
offering thereof.
(C) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not
set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
(D) 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 foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is
II-5
<PAGE> 17
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.
II-6
<PAGE> 18
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-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Plainville, Commonwealth of Massachusetts, on
this 17th day of November, 1995.
MEDIA LOGIC, INC.
By:/s/ William E. Davis, Jr.
-------------------------
William E. Davis, Jr.
Chief Executive Officer
II-7
<PAGE> 19
<TABLE>
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints William E.
Davis, Jr. and Paul M. O'Brien, and each of them severally, acting alone and
without the other, his true and lawful attorney-in-fact with the authority to
execute in the name of each such person, and to file with the Securities and
Exchange Commission, together with any exhibits thereto and other documents
therewith, any and all amendments (including without limitation post-effective
amendments) to this registration statement necessary or advisable to enable the
registrant to comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and Exchange Commission
in respect thereof, which amendments may make such other changes in the
registration statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ William E. Davis, Jr. President, Chief Executive November 17, 1995
- ----------------------------- Officer and Director (Principal
William E. Davis, Jr. Executive Officer)
- ----------------------------- Chairman of the
David R. Lennox Board of Directors
/S/ Klaus J. Peter Executive Vice President November 17, 1995
- ----------------------------- and Director
Klaus J. Peter
/s/ Harold B. Shukovsky Director November 17, 1995
- -----------------------------
Harold B. Shukovsky
/s/ Joseph L. Mitchell Director November 17, 1995
- -----------------------------
Joseph L. Mitchell
/s/ Francis S. Wyman Director November 17, 1995
- -----------------------------
Francis S. Wyman
</TABLE>
II-8
<PAGE> 20
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Michael Hruby Director November 17, 1995
- -----------------------------
Michael Hruby
- ----------------------------- Director
Raymond LeClerc
/s/ Paul M. O'Brien Vice President and November 17, 1995
- ----------------------------- Chief Financial Officer
Paul M. O'Brien (Principal Financial and
Accounting Officer)
</TABLE>
II-9
<PAGE> 21
<TABLE>
Exhibit Index
------- -----
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C> <C>
4 Specimen Certificate for Shares of
Common Stock (1)
5 Opinion of Bingham, Dana & Gould A-1
23.1 Consent of Arthur Andersen LLP B-1
23.2 Consent of Bingham, Dana & Gould
(included in Exhibit 5)
24 Power of Attorney (included on
signature page)
<FN>
- -----------------
(1) The item listed is incorporated by reference herein to the Company's Registration
Statement on Form S-18 (number 33-14722B).
</TABLE>
II-10
<PAGE> 1
EXHIBIT 5
Bingham, Dana & Gould
150 Federal Street
Boston, Massachusetts 02110
November 17, 1995
Media Logic, Inc.
310 South Street
Plainville, Massachusetts 02762
Re: Registration Statement on Form S-3
Under the Securities Act of 1933, as Amended
--------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Media Logic, Inc., a Massachusetts
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 130,909 shares of the
Company's Common Stock, $0.01 par value per share (the "Shares"), pursuant to a
Registration Statement on Form S-3 (as amended from time to time, the
"Registration Statement"), initially filed by the Company with the Securities
and Exchange Commission on November 17, 1995. The Shares were issued by the
Company in a private placement to Advent International Corporation in September
1995 as consideration for services rendered to the Company.
We have acted as counsel to the Company in connection with the
foregoing registration of the Shares. We have also examined and relied upon
originals or copies, certified or otherwise authenticated to our satisfaction,
of such corporate records, documents, agreements and other instruments and
certificates, and have made such investigation of law, and have discussed with
officers and representatives of the Company such questions of fact, as we have
deemed necessary or appropriate to enable us to express the opinions rendered
hereby.
We have assumed the genuineness of all signatures, the conformity to
the originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form,
and the legal competence of each individual executing a document.
We have also assumed that the registration requirements of the Act and
all applicable requirements of state laws regulating the sale of securities
will have been duly satisfied.
A-1
<PAGE> 2
This opinion is limited solely to the laws of the Commonwealth of
Massachusetts (other than the Massachusetts Uniform Securities Act, as to which
we express no opinion) as applied by courts located in such Commonwealth.
Based upon the foregoing, we are of the opinion that the Shares were
validly issued and are fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Bingham, Dana & Gould
---------------------------------------
BINGHAM, DANA & GOULD
A-2
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
and to all references to our Firm included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
---------------------------
Arthur Andersen LLP
Boston, Massachusetts
November 16, 1995
B-1
