-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CDDteRC83M2XNgC86lWUG1VGihyBgSZHhlhGTTsXRnjXly6Qq+bUuwLftgHP30tu ZI7MQUUWQK91/4PCsHubdQ== 0000912057-97-007650.txt : 19970304 0000912057-97-007650.hdr.sgml : 19970304 ACCESSION NUMBER: 0000912057-97-007650 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970303 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: MEDIA LOGIC INC CENTRAL INDEX KEY: 0000815185 STANDARD INDUSTRIAL CLASSIFICATION: MEASURING & CONTROLLING DEVICES, NEC [3829] IRS NUMBER: 042772354 STATE OF INCORPORATION: MA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-22657 FILM NUMBER: 97549460 BUSINESS ADDRESS: STREET 1: 310 SOUTH STREET STREET 2: P O BOX 2258 CITY: BOSTON STATE: MA ZIP: 02762 BUSINESS PHONE: 5086952006 MAIL ADDRESS: STREET 1: 310 SOUTH STREET STREET 2: P O BOX 2258 CITY: PLAINVILLE STATE: MA ZIP: 02762 S-3 1 S-3 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 ------------------- (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. ---------- THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" ON PAGE 4 OF THIS PROSPECTUS. ---------- 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. ---------- 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 ---------- 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. I-4 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) I-6 EX-99 2 EXHIBIT 99 EXHIBIT 99 SEPARATION AGREEMENT MediaLogic ADL, Inc. 1965 North 57th Court Boulder, CO 80301 Mr. Lee H. Elizer 5551 Sunshine Canyon Drive Boulder, Colorado 80302 Dear Lee: This letter agreement (this "Agreement") is made and entered into as of October 23, 1996 (the "Effective Date") by and between MediaLogic ADL, Inc. (the "Company"), Media Logic, Inc. ("Media Logic," the Company's parent corporation) and you and sets forth the terms applicable to the termination of your employment by the Company. 1. You hereby acknowledge the termination of your employment as the Chief Executive Officer and President of the Company and your resignation as a Director of the Company, effective October 11, 1996 (the "Separation Date"). 2. You acknowledge that the Company, Media Logic and you are parties to the following agreements (collectively, the "Prior Agreements"): (i) Employment Agreement between the Company and you, dated as of July 21, 1994 (the "Employment Agreement"); (ii) Non-Statutory Stock Option Agreement, dated as of July 21, 1994, between the Company and you relating to the grant to you of an option (the "Option") to purchase up to 1,000,000 shares of the common stock of the Company, $.001 par value per share (the "Company Option Agreement"); (iii) Incentive Stock Option Agreement, dated as of April 17, 1996, between Media Logic and you relating to the grant to you of an option to purchase up to 15,000 shares of the common stock of Media Logic, $.01 par value per share (the "Media Logic Option Agreement"); (iv) Shareholders Agreement, dated as of July 21, 1994, among the Company and the Shareholders and Optionholders named therein (the "Shareholders' Agreement"); and (v) Technology Transfer Agreement, dated as of July 21, 1994, between the Company and you and Chris Marlowe (the "Technology Transfer Agreement"). 3. In connection with the termination of your employment and in consideration of the other provisions of this Agreement, including, without limitation, those set forth in Paragraph 9 hereof, the Company hereby agrees to pay and make available to you the amounts and benefits set forth in this Paragraph 3. (i) The Company will pay you an amount equal to the remainder of your salary (excluding any bonuses) that would have been due through July 21, 1997 under the Employment Agreement ("Salary Continuation Payments"), plus an amount equal to what would have been payable as accrued vacation pay under the Employment Agreement ("Equivalent Vacation Payments"). Such amounts are equal to the following: (a) Salary Continuation Payments: $93,692.22 (equal to $2,307.69 per week through July 21, 1997); and (b) Equivalent Vacation Payments: $5,999.76 (equal to $57.69 per hour for an aggregate of 104 hours through July 21, 1997). (c) Total (Salary Continuation Payments plus Equivalent Vacation Payments): $99,691.98. Said sum (less withholding) shall be paid by the Company according to the following schedule: 50% ($49,846.00) to be paid in one lump sum on the Effective Date of this Agreement and the remaining 50% to be paid in 26 equal weekly installments of $1,917.15 beginning on the first Friday following the Effective Date of this Agreement. (ii) You shall have the right to continue your medical insurance coverage (solely at your expense) to the extent provided in the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as amended. The COBRA period shall be deemed to have commenced as of the Separation Date. (iii) The Company will not oppose any effort by you to collect unemployment insurance and will provide such accurate information to you and any unemployment agency as may be requested in connection therewith. (iv) The Company will pay you on the Effective Date of this Agreement, the sum of $50,000 (less withholding) (the "Separation Sum") in consideration of your obligations under this Agreement. The payment of the Separation Sum shall be reported by means of a Form W-2 and deemed to be a payment under this Agreement and not wages. (v) The Company shall provide you, or DataThinK, Inc. ("DataThinK", the company recently established by you to operate as a value-added reseller of data storage - 2 - libraries), within eighteen (18) months of the Effective Date of this Agreement, twenty (20) newly manufactured base model libraries at such times and in such quantities as you shall request in writing. The libraries will be provided to you pursuant to the following terms: (a) The libraries provided will be from those base models which are available from the Company at the time of your request(s). You may, if you so choose, request delivery at one time of more than one type of library; (b) The libraries, when delivered to you by the Company, allow a ten (10) day acceptance period and carry a standard new product warranty. Units not rejected within the ten (10) day acceptance period will be deemed to be accepted by you and will count toward your 20-unit maximum allowance. The Company does not intend to withhold employment taxes when it delivers the data libraries to you. However, if it is determined that the Company should have withheld such taxes, you hereby agree to indemnify and hold the Company, Media Logic and the other Releasees (as hereinafter defined) from and against any costs, expenses (including, without limitation, reasonable legal fees and expenses), judgments and amounts paid in settlement that they may incur as to which they may become subject on or after the Effective Date of this Agreement by reason of any failure of the Company to withhold properly any amounts specifically under this Paragraph 3(v). (vi) If you so desire, the Company will enter into its standard Value Added Resellers Agreement with you or with DataThinK on the same terms, conditions and pricing policies as other customers of the Company. (vii) Should you desire to purchase products from the Company, the Company will sell products to you pursuant to the following terms: (a) DataThinK will be allowed to purchase up to $50,000 worth of product on credit, to be paid within ninety (90) days of your receipt of the products. You may purchase products in an aggregate outstanding credit amount not to exceed $50,000 (i.e., on a revolving basis). (b) Such terms shall remain in effect until the earlier of (i) such time as you are no longer a majority owner of DataThinK, or (ii) two (2) years from the date of this Agreement. Upon any lapse of such terms, the terms under which you purchase any further products of the Company shall be the Company's standard credit terms (currently thirty (30) days). (c) Such terms are nontransferable and non-assignable. - 3 - (d) Any products purchased that exceed the $50,000 credit limit at any time shall be purchased under the Company's standard credit terms, including but not limited to, the Company's right at all times not to sell product to customers which the Company deems insolvent, bankrupt, or otherwise not credit-worthy. (viii) The Company hereby assigns and transfers to you all of its right, title and interest in and to the computer equipment listed below (the "Equipment"), free and clear of all liens and encumbrances. The Equipment is assigned and transferred to you as of the date hereof and the Company makes no representations or warranties whatsoever: (a) Two (2) 486/66XM HP Vectra desktop computers with CD-ROM, keyboard, floppy disk, sound card, 28.8 modem and already installed software (with the exception of Company data, which is on the server); and (b) One (1) Gateway 2000 SOLO laptop computer, serial number PB1F2512 with floppy disk, CD-ROM, 3com PCMCIA 28.8 modem card and carrying case with external power supply, mouse and docking port. (ix) Media Logic hereby grants to you, according to the following schedule, an aggregate of 20,000 shares (the "Shares") of the common stock, $.01 par value per share (the "Common Stock") of Media Logic: (a) 5,000 shares of Media Logic Common Stock as promptly as practicable after the date of this Agreement, but in no event later than thirty (30) days following such date; (b) 7,000 shares of Media Logic Common Stock one (1) year from the date of this Agreement; and (c) 8,000 shares of Media Logic Common Stock two (2) years from the date of this Agreement. If the Company or Media Logic is to be consolidated with or acquired by another entity in a merger, sale of all or substantially all of the Company's or Media Logic's assets or otherwise, all Shares not yet issued shall be immediately issued. The Company will use all reasonable efforts to file a registration statement on Form S-3 (the "Registration Statement") with the Securities and Exchange Commission with respect to the Shares within thirty (30) days following the date of issuance of each group of Shares and agrees to keep each respective - 4 - Registration Statement effective until the earlier of (i) the completion of the distribution pursuant to the respective Registration Statement, or (ii) one hundred eighty (180) days following the effective date of the respective Registration Statement. The Company's obligations under this Paragraph shall end following the filing of and termination of the effectiveness-maintenance period of the third such Registration Statement. 4. You expressly acknowledge and agree that all amounts and benefits which the Company has agreed to pay or make available to you under this Agreement are not otherwise due or owing to you under any employment agreement (oral or written). You further acknowledge that you have been paid and provided all wages, commissions, bonuses, vacation pay, holiday pay and any other form of compensation or benefit that either is due now or otherwise would become due in the future in connection with your employment or separation of employment with the Company. 5. (i) You expressly acknowledge that as of the date of this Agreement, under the Company Option Agreement, options to purchase 223,000 shares of the Company's common stock have vested and options to purchase 777,000 shares of the Company's common stock remain unvested. You expressly agree that you are waiving your right under the Company Option Agreement to exercise the vested portion of your options and that the unvested stock options to purchase 777,000 shares of common stock of the Company shall immediately lapse. (ii) You expressly acknowledge and agree that as of the date of this Agreement, under the Media Logic Option Agreement, you hold 15,000 unvested options to purchase common stock of Media Logic, such options which will not vest under the terms of the Media Logic Option Agreement. (iii) You acknowledge that the foregoing vested and unvested options, respectively, are all of the vested options and unvested options, respectively, which you own in either the Company or Media Logic as to which you are entitled. (iv) The parties acknowledge and agree that you do not have, and shall not in the future have, (a) rights to vest in any stock options under any stock or stock option plan of the Company or of Media Logic (of whatever name or kind) in which you participated or were eligible to participate during your employment, or (b) rights to any other securities of the Company or of Media Logic. 6. (i) The Employment Agreement is hereby terminated. However, you hereby reaffirm your obligations and agree to remain bound, to the same extent as you were bound during the period that you were employed by the Company, by the following provisions as set forth in the Employment Agreement: (a) the prohibition as set forth in Section 8 of the Employment Agreement after termination of your employment on your soliciting any employees of the Company or of Media Logic, (b) the requirement as set forth in Section 10 of the Employment Agreement that you not reveal any Confidential Information (as therein defined) - 5 - of the Company, (c) the requirement as set forth in Section 11 of the Employment Agreement that you deliver to the Company following the termination of your employment all Company property and documents which are in your possession or control, and (d) the provisions of Section 12 of the Employment Agreement with regard to specific enforcement. (ii) You hereby reaffirm your obligations and agree to remain bound, to the same extent as is fully contemplated by the Technology Transfer Agreement, by the provisions of Section 5 of the Technology Transfer Agreement with respect to the confidentiality and use of the Transferred Technology (as defined therein). (iii) Breach of any of the foregoing provisions of the Employment Agreement or the Technology Transfer Agreement shall constitute a material breach of this Agreement and, in addition to the Company's other remedies, shall relieve the Company of any further obligations hereunder. 7. (i) You further agree that you will not make any statements that are disparaging about or adverse to the Company's business interests (including its officers, directors and employees) or which are intended to harm the Company's reputation, including, but not limited to, any statements that disparage any operations, product, service, finances, capability or any other aspect of Company's business. The breach of this paragraph by you shall constitute a material breach of this Agreement and shall relieve the Company of any further obligations hereunder, without limiting other rights and remedies available to the Company in any such circumstances. (ii) The Company further agrees that, with respect to the period of time you were employed by the Company, it will not make any statements that are disparaging about your business performance or adverse to your professional reputation or which are intended to harm your professional reputation. In particular, if contacted by a prospective employer for a reference, the Company, its officers and directors shall limit their response to such prospective employer to providing your job duties and length of employment. The Company shall instruct its employees to also abide by the previous sentence and you agree to direct all such inquiries to William E. Davis, Jr. Notwithstanding any other provisions of this paragraph, the provisions of this paragraph shall not require the Company to make any false or misleading statements to any governmental entity or as otherwise required by law or legal process. 8. (i) You agree to cooperate with and be available to assist the Company and Media Logic (including, without limitation, meeting with attorneys of the Company and/or Media Logic) in any legal proceedings that either entity is or may become involved with against a third party, including, but not limited to, the Company's and Media Logic's current legal proceedings brought against and by Christian P. Marlowe and Marlowe Engineering Company. When you are requested to become involved by the Company or by Media Logic, you will be reimbursed for reasonable out-of-pocket expenses, excluding attorneys fees, arising out of such cooperation and assistance. - 6 - (ii) The Company and Media Logic further agree that if requested by you, such entities will cooperate with and be available to assist you in legal proceedings that you may become involved with against a third party for claims that arose during the term of your employment. You agree that, when you request either the Company and/or Media Logic to become so involved, you will reimburse such entit(ies) for reasonable out-of-pocket expenses, excluding attorneys fees, arising out of such cooperation and assistance. 9. You agree and acknowledge that by signing this Agreement and accepting the benefits to be provided to you, and other good and valuable consideration provided for in this Agreement, you are waiving and releasing your right to assert any form of legal claim against the Company, Media Logic, and the Company's and Media Logic's affiliates, directors, officers, agents, employees, successors and assigns of any kind whatsoever (hereinafter the "Releasees") from the beginning of time through the date of this Agreement. Your waiver and release herein is intended to bar any form of legal claim, charge, complaint or any other form of action (jointly referred to as "Claims") against such Releasees or recovery of any damages or other relief whatsoever (including, without limitation, back pay, compensatory damages, punitive damages, attorneys fees and any other costs) against such Releases, up through the date of this Agreement. Without limiting the foregoing general waiver and release, you specifically waive and release the aforesaid Releasees from any Claim arising from or related to your employment relationship with the Company or the termination thereof, including, without limitation: (i) Claims under the Prior Agreements. (ii) Claims under any state discrimination, fair employment practices, civil rights or other employment related statute, regulation or executive order (as they may have been amended through the date of this Agreement) prohibiting discrimination or harassment based upon any protected status including, without limitation, race, color, national origin, age, gender, marital status, disability, veteran status or sexual orientation. (iii) Claims under any federal discrimination, fair employment practices or other employment related statute, regulation or executive order (as they may have been amended through the date of this Agreement) prohibiting discrimination or harassment based upon any protected status including, without limitation, race, color, national origin, age, gender, marital status, disability, veteran status or sexual orientation. Without limitation, specifically included in this paragraph are any Claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Civil Rights Acts of 1866 or 1871, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991 and the Americans With Disabilities Act. - 7 - (iv) Claims under any other state or federal employment related statute, regulation or executive order (as they may have been amended through the date of this Agreement) relating to wages, payment of wages hours or any other terms and conditions of employment. Without limitation, specifically included in this paragraph are any Claims arising under the Fair Labor Standards Act, the Family Medical Leave Act of 1993, and the National Labor Relations Act, the Employee Retirement Income Security Act. (v) Claims under any state or federal common law theory including, without limitation, wrongful discharge, breach of express or implied contract, promissory estoppel, unjust enrichment, breach of a covenant of good faith and fair dealing, violation of public policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, misrepresentation, deceit, fraud or negligence. (vi) Any other Claim arising under state or federal law. 10. (i) In consideration of the promises contained herein, and other good and valuable consideration, the Company and Media Logic hereby release and forever discharge you from any and all Claims (as defined in Paragraph 9 of this Agreement), which the Company and/or Media Logic had, now have, or may have in the future, relating in any manner to the performance by you of your duties as an officer or employee of the Company, so long as you were duly authorized by the Company and/or Media Logic and in fact were acting within the scope of such authority in the performance of such duties. (ii) Notwithstanding the foregoing, this paragraph shall not release you from any obligation set forth in this Agreement. (iii) Additionally, notwithstanding the foregoing, if any Claim (as defined in Paragraph 9 of this Agreement) is brought against the Company or Media Logic by a third party, not at the invitation or initiation of the Company or Media Logic, which is based on any alleged act(s) or omission(s) by you during the course of your employment with the Company, the Company and Media Logic retain the right, subject to the same rights of indemnification to which you were entitled during the course of your employment with the Company and to the fullest extent available under any applicable law, to bring a third-party Claim against you. If in the course of such a proceeding it is determined that the Company or Media Logic is liable as a result of such act(s) or omission(s) by you, you shall not be released from liability to the Company and/or Media Logic under this Paragraph 10 and, in addition to the Company's other remedies, the Company shall be relieved from any further obligations under this Agreement. 11. The parties expressly acknowledge that because you are older than 40 years of age, you are granted specific rights under the Older Worker Benefits Protection Act ("OWBPA") which prohibits discrimination on the basis of age, and that the release set forth in the prior paragraph is intended to release any right you may have to file a claim against the Company or - 8 - Media Logic alleging discrimination on the basis of age. Consistent with the provisions of OWBPA, you shall have twenty-one (21) days after your receipt of this Agreement to consider and accept the terms of this Agreement by signing below. In addition, you may rescind your assent to this Agreement if, within seven (7) days after the date you sign this Agreement, you deliver to Media Logic, Inc., 310 South Street, Plainville, MA 02762, Attn: William E. Davis, Jr., President and CEO, a written notice of rescission. To be effective, such notice of rescission must be postmarked within the seven (7) day period and sent by certified mail, return receipt requested, to William E. Davis, Jr. at the above address. 12. Except as expressly provided for herein, this Agreement supersedes any and all prior oral and/or written agreements, including, without limitation, the Prior Agreements and sets forth the entire agreement between the Company, Media Logic and you. No variations or modifications hereof shall be deemed valid unless reduced to writing and signed by the parties hereto. This Agreement shall take effect as an instrument under seal and shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to the conflict of law principles thereof. The terms of this Agreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining terms and conditions shall be enforced in full. 13. Any legal action or proceeding with respect to this Agreement shall be brought in the courts of the Commonwealth of Massachusetts or of the United States of America for the District of Massachusetts. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. 14. The rights and obligations under this Agreement may not be assigned by any party hereto without the prior written consent of the other parties. All statements, representations, warranties, covenants and agreement in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors, heirs and permitted assigns of each party hereto. 15. You hereby acknowledge that you have read this Agreement carefully, that you have been afforded sufficient time to understand the terms and effects of this Agreement, that you are hereby advised to consult with legal counsel before signing the Agreement, that you are voluntarily entering into and executing this Agreement and that neither the Company, Media Logic, nor their agents or representatives has made any representations inconsistent with the terms and effects of this Agreement. [THIS SPACE INTENTIONALLY LEFT BLANK] - 9 - IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first above written. MEDIALOGIC ADL, INC. LEE H. ELIZER By: /s/ William Davis /s/ Lee H. Elizer -------------------------- ------------------------- Name: William Davis Lee H. Elizer Title: President MEDIA LOGIC, INC. By: /s/ William Davis -------------------------- Name: William Davis Title: President - 10 - EX-23.1 3 EXHIBIT 23.1 Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated June 5, 1996 included in Media Logic, Inc.'s Form 10-K for the year ended March 31, 1996 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen, LLP ------------------------ ARTHUR ANDERSEN LLP Boston, Massachusetts February 26, 1997 EX-5 4 EXHIBIT 5 EXHIBIT 5 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. One Financial Center Boston, Massachusetts 02111 701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000 Washington, D.C. 20004 Fax: 617/542-2241 Telephone: 202/434-7300 www.Mintz.com Fax: 202/434-7400 March 3, 1997 Media Logic, Inc. 310 South Street Plainville, Massachusetts 02762 Gentlemen: We have acted as counsel to Media Logic, Inc., a Massachusetts corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-3 (the "Registration Statement"), pursuant to which the Company is registering under the Securities Act of 1933, as amended, a total of 5,000 shares (the "Shares") of its common stock, $.01 par value per share (the "Common Stock"), for resale to the public. The Shares are to be sold by the selling stockholder identified in the Registration Statement. This opinion is being rendered in connection with the filing of the Registration Statement. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement. In connection with this opinion, we have examined the Company's Restated Articles of Organization and By-Laws, both as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company's officers as we have deemed relevant; and the Registration Statement and the exhibits thereto. Richard R. Kelly, Clerk of the Company, is a member of our firm. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies and the authenticity of the originals of such copies. Based upon the foregoing, we are of the opinion that (i) the Shares have been duly and validly authorized by the Company and (ii) the Shares, when sold, will be duly and validly issued, fully paid and non-assessable shares of the Common Stock. Our opinion is limited to the General Corporation laws of the Commonwealth of Massachusetts, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. We understand that you wish to file this opinion as an exhibit to the Registration Statement, and we hereby consent thereto. We hereby further consent to the reference to us under the caption "Legality of Common Stock" in the prospectus included in the Registration Statement. Very truly yours, /s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ------------------------------- Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. -----END PRIVACY-ENHANCED MESSAGE-----