<PAGE> 1
As filed with the Securities and Exchange Commission on December 17, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
SPYGLASS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 37-1258139
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
1240 E. DIEHL ROAD, 4TH FLOOR, NAPERVILLE, ILLINOIS 60563 (630) 505-1010
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
PATRICK J. RONDEAU, ESQ.
HALE AND DORR LLP, 60 STATE STREET, BOSTON, MASSACHUSETTS 02109 (617) 526-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE 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 effective registration statement
for the same offering. / /
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION> Proposed Proposed
Maximum Maximum
Title of Each Class of Amount Offering Aggregate Amount of
Securities to be to be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
- ---------------------- --------------- --------- ------------- ------------
<S> <C> <C> <C> <C>
Common Stock, 319,624 shares $6.6875 $2,137,485.50 $631.00
$.01 par value
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) and based upon prices on the Nasdaq National
Market on December 11, 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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
================================================================================
<PAGE> 2
SUBJECT TO COMPLETION
DATED DECEMBER 17, 1997
PROSPECTUS
319,624 Shares
SPYGLASS, INC.
Common Stock
------------------------
This Prospectus covers the resale of 319,624 shares of Common Stock of
Spyglass, Inc. ("Spyglass" or the "Company") by certain stockholders of the
Company (the "Selling Stockholders"). See "Selling Stockholders." The shares
of Common Stock covered by this Prospectus were issued to the Selling
Stockholders in connection with the Company's acquisition of AllPen Software in
a transaction completed on November 14, 1997. The Company will not receive any
of the proceeds from the sale of these shares by the Selling Stockholders.
The Selling Stockholders may from time to time sell the shares covered
by this Prospectus on the Nasdaq National Market in ordinary brokerage
transactions, in negotiated transactions or otherwise, at market prices
prevailing at the time of sale or at negotiated prices. See "Plan of
Distribution."
The Common Stock is quoted on the Nasdaq National Market under the
symbol SPYG.
SEE "RISK FACTORS" BEGINNING ON PAGE 4
FOR CERTAIN CONSIDERATIONS RELEVANT TO AN
INVESTMENT IN THE COMMON STOCK.
------------------------
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 ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is December 17, 1997
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time that the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . . . . . 1
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SELLING STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such documents can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following regional offices: Seven World Trade Center, 13th Floor, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and
copies of such material may be obtained from the Commission's public reference
section at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
The Commission maintains a site on the World-Wide Web ("WWW") that contains
reports, proxy and information statements regarding the Company. The
Commission's WWW site is (http://www.sec.gov). The Common Stock is traded on the
Nasdaq National Market. Reports and other information concerning the Company
may be inspected at the National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Common Stock offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement and the
exhibits and schedules thereto. For further information with respect to the
Company and its Common Stock, reference is hereby made to such Registration
Statement, exhibits and schedules. Statements contained in this Prospectus as
to the contents of any contract or any other document are not necessarily
complete, and in each instance reference is hereby made to the copy of such
contract or document (if any) filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference. The Registration Statement and the exhibits and schedules thereto
may be examined without charge at the public reference section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and copies of all
or any part thereof may be obtained from the Commission upon payment of
prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996;
(2) the Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1996;
(3) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
(4) the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997;
(5) the Company's Current Report on Form 8-K dated July 15, 1997, as
amended by a Current Report on Form 8-K/A filed with the Commission on July 21,
1997;
(6) the Company's Current Report on Form 8-K dated November 21, 1997;
and
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<PAGE> 5
(7) the Company's Registration Statement on Form 8-A dated May 11, 1995
registering the Common Stock under Section 12(g) of the Exchange Act.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to December
17, 1997 and prior to the termination of the offering of the Common Stock
registered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing such documents. Any
statement contained in a document incorporated or deemed to be 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 or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the foregoing documents incorporated by reference into this
Prospectus (without exhibits to such documents other than exhibits specifically
incorporated by reference into such documents). Requests for such copies
should be directed to the Chief Financial Officer of the Company, 1240 E. Diehl
Road, 4th Floor, Naperville, Illinois 60563; telephone (630) 505-1010.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL.
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<PAGE> 6
THE COMPANY
Spyglass, Inc. ("Spyglass" or the "Company") develops, markets and
distributes Internet enabling technologies, content services and professional
services that enable various non-PC devices, including, but not limited to,
televisions, office equipment, television set-top boxes, network computers and
telephones, to work with the Internet (also referred to as "World Wide Web",
"WWW" or the "Web").
The Company began operations in February 1990 and, until 1994, focused
substantially all of its resources on its data visualization products sold to
the scientific market. The Company sold its data visualization product line in
September 1995. Spyglass entered the Internet market during fiscal 1994 and
from fiscal 1994 through fiscal 1996, focused its efforts on developing,
marketing and distributing Internet client and server technologies for
incorporation into a variety of Internet-based software products and services.
Beginning in fiscal 1997, the Company began focusing on the development,
marketing and distribution of its technologies and services to the non-PC
Internet device marketplace.
Spyglass markets embedded solutions to a variety of companies such as the
real time operating system vendors, consumer and industrial electronics
manufacturers, and office equipment suppliers. Spyglass also provides
infrastructure solutions to a variety of companies such as the Regional Bell
Operating Companies, telephone companies, cable companies, cellular providers,
Internet Service Providers and internetworking hardware providers. These
technologies enable Web connectivity through highly scalable embedded browsers
and servers, and provide performance enhancements, content filtering and
conversion through an integrated suite of infrastructure servers. The Spyglass
Professional Services group offers custom engineering for defining, developing
and delivering complete, end-to-end project solutions. Spyglass provides its
customers with expertise, software and services that enable them to rapidly
deploy cost-effective Web-enabled devices. Spyglass solutions have been
integrated into a variety of products, including but not limited to
televisions, office equipment, television set-top boxes, network computers,
screen and cellular phones. In addition, several major corporations have
deployed SurfWatch Client, a leading content filtering software designed to
block unwanted material from the Internet.
The Company was organized as an Illinois corporation in February 1990 and
reincorporated in Delaware in May 1995. The Company's principal office is
located at Naperville Corporate Center, 1240 E. Diehl Road, 4th Floor,
Naperville, Illinois 60563 and its telephone number is (630) 505-1010. The
Spyglass WWW address is http://www.spyglass.com. As used in this prospectus,
the term "Company" refers to Spyglass, Inc. (including its predecessor Illinois
corporation) and its wholly owned subsidiaries, unless the context otherwise
requires.
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<PAGE> 7
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully by potential investors in evaluating an
investment in the Common Stock offered hereby.
New Strategic Focus.
The Company recently announced an increased strategic focus on the
Internet device market. The Company is focused on the development, marketing
and distribution of its technologies and services to the non-PC Internet device
marketplace. Because this is a new and undeveloped market, there can be no
assurance as to the extent of the demand for product offerings similar to those
of the Company, or the extent to which the Company will be successful in
penetrating this market. Moreover, the Company expects that its revenue growth
will be limited during fiscal 1998 as the Company continues to direct its
business strategy to the Internet device market, rather than vendors of desktop
software applications. In addition, the Company expects to maintain its recent
levels of expenditures in product development, marketing and sales in order to
position itself as a leader in the Internet device market.
New and Uncertain Market.
The Company's future results of operations will also be largely dependent
upon a number of factors relating to development and acceptance of the Internet
as a commercial market. In particular, commercial use of the Internet
continues to be constrained by the need for reliable processes such as security
measures for electronic commerce as well as the need for regularly available
customer support and a supporting infrastructure providing widespread Internet
accessibility and high-speed communication capabilities. There can be no
assurance that widespread commercial use of the Internet will develop. In
addition, the market for Internet software products is characterized by rapidly
changing technology, evolving industry standards and customer demands, and
frequent product introductions and enhancements, which make it difficult to
predict whether the initial commercial acceptance of the Company's products can
be sustained over a period of time.
Competition.
The market for Internet technologies and services is extremely
competitive, and competition is likely to increase in the future. The Company
currently faces competition from a wide variety of sources, including other
Internet device technology and software vendors such as Oracle, Sun
Microsystems, Microsoft, on-line service companies, Internet access providers
and networking software companies. In licensing its Internet technologies, the
Company considers a significant source of competition to be the prospective
company's internal software development resources.
Dependence on Customers.
The Company licenses its products to a variety of companies such as real
time operating system vendors, consumer and industrial device manufacturers,
regional bell operating companies, Internet service providers and
internetworking hardware providers that incorporate the Company's technology
into their products. The success of the Company is therefore dependent in
large part upon the performance of its customers, which is outside the
Company's control.
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<PAGE> 8
Proprietary Rights of Third Parties.
The Company from time to time receives notices alleging that its products
infringe third party proprietary rights. For example, the Company has a
pending dispute with Unisys Corporation regarding the Graphic Interchange
Format. Patent and similar litigation frequently is complex and expensive and
its outcome can be difficult to predict. If, as a result of the infringement
by any of the Company's products of the proprietary rights of a third party,
the Company is required to discontinue sales of certain products, eliminate
certain features on its products or pay royalties to another party, the
Company's future operating results could be materially adversely affected.
Variability of Quarterly Operating Results.
The Company's quarterly operating results have varied and may continue to
vary significantly depending on factors such as the timing of significant
license agreements, the terms of the Company's licensing arrangements with its
customers and the timing of new product introductions and upgrades by the
Company and its competitors. The Company typically structures its license
agreements with customers to require commitments for a minimum number of
licenses, and license revenues are recognized as the committed licenses are
purchased. Additional revenues from a customer will not be earned unless and
until the initial committed levels are exceeded. The Company's revenues in any
quarter will depend in significant part on its ability to sell licenses to new
customers in that quarter, the timing of product deployment by its customers
and the ability to sell professional services. The Company typically
structures its professional service agreements with customers to recognize
revenue on the percentage of completion method of accounting. The Company's
expense levels are based in part on expectations of future revenue levels and
any shortfall in expected revenue could therefore result in a disproportionate
decrease in the Company's net income in any given fiscal period.
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<PAGE> 9
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock
by the Selling Stockholders.
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
ownership of the Company's Common Stock by each Selling Stockholder as of
December 1, 1997. The Selling Stockholders are employees or former employees
of AllPen Software, now a wholly-owned subsidiary of the Company. No Selling
Stockholder has been an officer of, or had any other material relationship
with, the Company since December 1, 1994.
<TABLE>
<CAPTION>
Percentage
Number of of
Number Shares of Outstanding
of Number of Common Common
Shares Shares of Stock Owned Stock Owned
of Common After After
Common Stock Completion Completion
Name of Selling Stock Offered of the of the
Stockholder Owned(1) Hereby Offering (1) Offering
- ------------------ -------- --------- ----------- -----------
<S> <C> <C> <C> <C>
Ivan W. Yurtin 308,483 154,242 154,241 1.2%
Wayne B. Yurtin 257,069 128,535 128,534 1.0%
S. Tupper Snook 64,267 32,134 32,133 *
Raymond Rischpater 7,712 3,856 3,856 *
Stacy Zellers 1,714 857 857 *
------- ------- ------- ----
TOTAL 639,246 319,624 319,622 2.5%
</TABLE>
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* Less than 1%.
(1) Of the total shares of Common Stock listed as owned by the Selling
Stockholders, a total of 63,925 shares are held in an escrow account to
secure indemnification obligations to the Company of the Selling
Stockholders. It is expected that these shares (less any shares which
may be distributed from the escrow account to the Company in satisfaction
of indemnification claims) will be released from escrow and distributed
to the Selling Stockholders on November 14, 1998. The number of shares
indicated as owned by the Selling Stockholders includes those shares
(representing 10% of the number of shares listed as beneficially owned by
each Selling Stockholder) which such Selling Stockholder is entitled to
receive upon distribution of these shares from the escrow account.
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<PAGE> 10
PLAN OF DISTRIBUTION
The shares of Common Stock covered by this Prospectus may be offered and
sold from time to time by the Selling Stockholders. The Selling Stockholders
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 Nasdaq
National Market or otherwise, at prices related to the then-current market
price or in negotiated transactions, including pursuant to 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 the broker solicits
purchasers; and (c) block trades in which the 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,
broker- dealers engaged by the Selling Stockholders may arrange for the other
broker-dealers to participate. Broker-dealers will receive commissions or
discounts from the Selling Stockholders in amounts to be negotiated immediately
prior to the sale.
The Company has agreed to indemnify the Selling Stockholders against
certain liabilities, including certain liabilities under the Securities Act.
Additionally, the Company will pay the expenses incurred by it in connection
with this offering, other than discounts, commissions, fees or expenses of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of the Stock, or legal expenses of
any person other than the Company.
In offering the shares of Common Stock covered hereby, the Selling
Stockholders and any broker-dealers and any other participating broker-dealers
who execute sales for the Selling Stockholders may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales, and any profits realized by the Selling Stockholders and the
compensation of such broker-dealer may be deemed to be underwriting discounts
and commissions.
The Company has advised the Selling Stockholders that during such time as
they may be engaged in a distribution of Common Stock covered hereby they are
required to comply with Regulation M under the Exchange Act.
In connection with distributions of the Common Stock or otherwise, the
Selling Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions. In connection with such transactions,
broker-dealers or other financial institutions may engage in short sales of
Common Stock in the course of hedging the positions they assume with the
Selling Stockholders. The Selling Stockholders may also sell Common Stock
short and redeliver the shares to close out such short positions. The Selling
Stockholders may also enter into options or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealer or financial institution of the Common Stock offered hereby,
which Common Stock such broker-dealer or other financial institution may,
subject to the applicable stockholder's agreement, resell pursuant to this
Prospectus (as supplemented or amended to reflect such transaction). The
Selling Stockholders may also pledge the shares registered hereunder to a
broker- dealer or other financial institution and, upon a default, such
broker-dealer or financial institution may, subject to the applicable
stockholder's agreement, effect sales of the pledged Common Stock pursuant to
this Prospectus. In addition, any Common Stock covered by this Prospectus that
qualifies for sale pursuant to Rule 144 may be sold under Rule 144 under the
Securities Act rather than pursuant to this Prospectus.
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<PAGE> 11
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Hale and Dorr LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of Spyglass, Inc. for each of the
three years in the period ended September 30, 1996 incorporated by reference
from the Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996, have been audited by Price Waterhouse LLP, independent
public accountants, as set forth in their reports incorporated by reference
herein. Such financial statements referred to above are incorporated herein by
reference in reliance upon the authority of said firm as an expert in giving
such reports.
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<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<CAPTION>
Item Amount
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<S> <C>
SEC Registration Fee $ 631
Accounting Fees and Expenses 5,000*
Legal Fee and Expenses 5,000*
Miscellaneous 4,369*
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TOTAL $ 15,000*
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</TABLE>
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent
of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding, if such
person had no reasonable cause to believe his conduct was unlawful; provided
that, in the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances.
Article NINTH of the Registrant's Certificate of Incorporation provides
that a director or officer of the Registrant (a) shall be indemnified by the
Registrant against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement reasonably incurred in connection with any
litigation or other legal proceeding (other than an action by or in the right
of the Registrant) brought against him by virtue of his position as a director
or officer of the Registrant if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against expenses (including attorneys' fees) and
amounts paid in settlement reasonably incurred in connection with any action by
or in the right of the Registrant by virtue of his position as a director or
officer of the Registrant if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, except that no indemnification shall be made with respect to any
such matter as to which such director or officer shall have been adjudged to be
liable to the Registrant, unless and only to the extent that a court determines
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper. Notwithstanding the
foregoing, to the extent that a director or officer has
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<PAGE> 13
been successful, on the merits or otherwise, he shall be indemnified against
all expenses (including attorneys' fees) reasonably incurred by him in
connection therewith. Expenses incurred in defending a civil or criminal
action, suit or proceeding shall be advanced by the Registrant to a director or
officer, at his request, upon receipt of an undertaking by the director or
officer to repay such amount if it is ultimately determined that he is not
entitled to indemnification.
Indemnification is required to be made unless the Registrant determines
(in the manner provided in the Certificate of Incorporation) that the
applicable standard of conduct required for indemnification has not been met.
In the event of a determination by the Registrant that the director or officer
did not meet the applicable standard of conduct required for indemnification,
or if the Registrant fails to make an indemnification payment within 60 days
after such payment is claimed by such person, such person is permitted to
petition a court to make an independent determination as to whether such person
is entitled to indemnification. As a condition precedent to the right of
indemnification, the director or officer must give the Registrant notice of the
action for which indemnity is sought and the Registrant has the right to
participate in such action or assume the defense thereof.
Article NINTH of the Registrant's Certificate of Incorporation further
provides that the indemnification provided therein is not exclusive, and
provides that in the event that the Delaware General Corporation Law is amended
to expand the indemnification permitted to directors or officers, the
Registrant must indemnify those persons to the fullest extent permitted by such
law as so amended.
The Company has purchased a general liability insurance policy which
covers certain liabilities of directors and officers of the Company arising out
of claims based on acts or omissions in their capacity as directors or
officers.
Article EIGHTH of the Registrant's Certificate of Incorporation provides
that, except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Registrant shall be personally liable to
the Registrant or its stockholders for monetary damages for any breach of
fiduciary duty as a director.
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<PAGE> 14
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C> <C>
4.1* -- Amended and Restated Certificate of Incorporation of the Company, as amended
4.2** -- By-laws of the Company
4.3** -- Specimen Certificate for shares of common stock of the Company
5.1 -- Opinion of Hale and Dorr LLP
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 -- Power of Attorney (appears on page II-6)
- -------------------
</TABLE>
* Incorporated by reference from the Company's Registration Statement on
Form S-8 (File No. 333-04357).
** Incorporated by reference from the Company's Registration Statement on
Form S-1 (File No. 33-92174).
ITEM 17. UNDERTAKINGS
The Company 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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
this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post- effective amendment by those
paragraphs is contained in periodic reports filed by the Company 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 this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE> 15
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the indemnification provisions described herein, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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-4
<PAGE> 16
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 on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Naperville and State of
Illinois on the 17th day of December, 1997.
SPYGLASS, INC.
By: /s/ Douglas P. Colbeth
----------------------------
Douglas P. Colbeth
President and
Chief Executive Officer
II-5
<PAGE> 17
SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Douglas P. Colbeth, Gary L. Vilchick and Patrick J. Rondeau, Esq. and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution in each of them, for him and in his name, place
and stead, and in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form
S-3 of Spyglass, Inc. and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated below on the 17th day of December, 1997.
Signature Title
--------- -----
/s/ Douglas P. Colbeth President, Chief Executive Officer
- ------------------------------ and Director
Douglas P. Colbeth (Principal executive officer)
/s/ Gary L. Vilchick Chief Financial Officer
- ------------------------------ (Principal financial and accounting
Gary L. Vilchick officer)
/s/ Brian J. Jackman Director
- ------------------------------
Brian J. Jackman
/s/ Tim Krauskopf Director
- ------------------------------
Tim Krauskopf
/s/ Ray Rothrock Director
- ------------------------------
Ray Rothrock
/s/ Steven R. Vana-Paxhia Director
- ------------------------------
Steven R. Vana-Paxhia
II-6
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C> <C>
4.1* -- Amended and Restated Certificate of Incorporation of the Company, as amended
4.2** -- By-laws of the Company
4.3** -- Specimen Certificate for shares of common stock of the Company
5.1 -- Opinion of Hale and Dorr LLP
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 -- Power of Attorney (appears on page II-6)
</TABLE>
- ----------------
* Incorporated by reference from the Company's Registration Statement on
Form S-8 (File No. 333-04357).
** Incorporated by reference from the Company's Registration Statement on
Form S-1 (File No. 33-92174).
II-7
<PAGE> 1
Exhibit 5.1
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000.FAX 617-526-5000
December 17, 1997
Spyglass, Inc.
Naperville Corporate Center
1240 E. Diehl Road, 4th Floor
Naperville, IL 60563
Dear Sirs:
We have assisted in the preparation and filing with the Securities and
Exchange Commission (the "Commission") of a Registration Statement on Form S-3
(the "Registration Statement"), relating to the sale of up to 319,624 shares of
Common Stock, $.01 par value per share (the "Shares"), of Spyglass, Inc., a
Delaware corporation (the "Company"), held by certain stockholders of the
Company.
We have examined the Amended and Restated Certificate of Incorporation,
as amended, and By-laws of the Company, and all amendments thereto, and have
examined and relied upon the originals, or copies certified to our
satisfaction, of such records of meetings of directors and stockholders of the
Company, documents and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as copies, and the authenticity of the originals of such latter
documents.
We express no opinion as to the laws of any State or jurisdiction other
than the laws of the Commonwealth of Massachusetts, the General Corporation Law
statute of the State of Delaware and the Federal law of the United States of
America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and are legally issued, fully
paid and non-assessable.
We hereby consent to the use of our name in the Registration Statement
and under the caption "Legal Matters" in the related Prospectus and consent to
the filing of this opinion as an Exhibit to the Registration Statement.
This opinion is based upon currently existing statutes, rules,
regulations, and judicial decisions, and we disclaim any obligation to advise
you of any change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein.
Please note that we are opining only as to matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated October 25, 1996, which appears on page 31 of the 1996 Annual Report of
Spyglass, Inc., which is incorporated by reference in Spyglass, Inc.'s Annual
Report on Form 10-K for the year ended September 30, 1996. We also consent to
the incorporation by reference of our report on the Financial Statement
Schedules, which appears in Spyglass, Inc.'s Annual Report on Form 10-K. We
also consent to the references to us under the headings "Experts" in such
Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Chicago, Illinois
December 16, 1997
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