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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 22, 2006
REGISTRATION NO. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MEDIA SCIENCES INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 87-0475073
(State or other jurisdiction of incorporation) (IRS Employer Identification No.)
8 Allerman Road, Oakland, New Jersey 07436
(Address of Principal Executive Offices) (Zip Code)
1998 Incentive Plan, as Amended and Restated
(Full Title of Plan)
Michael W. Levin
Chairman, President and Chief Executive Officer
8 Allerman Road
Oakland, New Jersey 07436
(Name and address of agent for service)
(201) 677-9311
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered Registered (1) per share (2) price (2) registration fee
---------------- -------------- ------------- ------------------ ----------------
Common stock, 500,000 $4.04 $2,020,000 $216.14
$0.001 par value
(1) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(h) and Rule 457(c) under the Securities Act. The proposed
maximum offering price per share is based upon the average of the high and
low prices for a share of common stock of the registrant, as reported on
the American Stock Exchange on March 20, 2006.
EXPLANATORY NOTE
This registration statement is being filed solely for the registration of
500,000 additional shares of common stock of Media Sciences, Inc. (the
"Company") for issuance pursuant to awards granted under the Company's 1998
Incentive Plan, as Amended and Restated (the "Plan"). The contents of the
earlier registration statement relating to the Plan (Registration No. 333-61325)
is hereby incorporated by reference in this registration statement, except as
revised in Part II of this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference in this registration statement the
following documents:
(a) The Company's annual report on Form 10-KSB filed pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), containing audited financial statements for the Company's fiscal
year ended June 30, 2005, as filed with the Securities and Exchange
Commission on September 13, 2005.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed under the Exchange Act including
any amendment or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares offered pursuant to this prospectus will be passed
upon for us by Law Offices of Dan Brecher, New York, New York, counsel to the
Company. Dan Brecher, the sole principal of the law firm, through his individual
retirement accounts and retirement plan, beneficially owns 68,853 shares of the
Company's common stock.
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Item 6. Indemnification of Directors and Officers.
Our Certificate of Incorporation provides that to the fullest extent permitted
by the General Corporation Law of Delaware, including, without limitation, as
provided in Section 102(b)(7) of the General Corporation Law of Delaware, as the
same exists or may hereafter be amended, any of our directors shall not be
personally liable to us or our stockholders for monetary damages for breach of
fiduciary duty as a director. Section 102(b)(7) of the Delaware General
Corporation Law permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability:
o for any breach of the director's duty of loyalty to the corporation or
its stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o for payments of unlawful dividends or unlawful stock repurchases or
redemptions; or
o for any transaction from which the director derived an improper
personal benefit.
If the General Corporation Law of Delaware is amended to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of our directors shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of Delaware, as so amended. Any
repeal or modification of the provision of the Certificate of Incorporation by
our stockholders shall not adversely affect any right or protection of our
directors existing at the time of such repeal or modification or with respect to
events occurring prior to such time.
Our Certificate of Incorporation and Bylaws further provide for the
indemnification of our directors and officers to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law, including circumstances in
which indemnification is otherwise discretionary. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to our directors,
officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
Section 145 of the Delaware General Corporation Law provides that a corporation
may indemnify directors and officers as well as other employees and individuals
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed actions, suits or proceedings in which such
person is made a party by reason of such person being or having been a director,
officer, employee of or agent to the registrant. The statute provides that it is
not exclusive of other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
Our Certificate of Incorporation provides that we will indemnify any of our
directors, officers, employees, or agents with respect to actions, suits, or
proceedings relating to us and, subject to certain limitations, a director will
not be personally liable for monetary damages for breach of his or her fiduciary
duty.
Our directors or officers, or a person who at our request serves as a director,
officer, employee or agent of another business entity, shall be indemnified by
us against all expense, liability and loss, including attorneys' fees,
judgments, fines, other expenses and losses, that is reasonably incurred or
suffered in connection with any action, suit or proceeding or threatened action,
suit or proceeding. For a person to receive indemnification under this
provision, our Board of Directors must authorize the indemnification, and the
person seeking indemnification must agree to repay us for all amounts advanced
to him or her if a court of law ultimately determines that the person should not
have been indemnified by us. A person who is entitled to indemnification may
recover from us, and may sue us if we fail to make timely payment.
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Item 7. Exemption From Registration Claimed.
Inapplicable.
Item 8. Exhibits.
Exhibit Number Description of Exhibit
-------------- ----------------------
4.1 Certificate of Incorporation of Cadapult Graphic Systems,
Inc., a Delaware corporation (Incorporated by reference to
Exhibit 3.1 of Quarterly Report on Form 10-QSB/A filed on
September 1, 1998)
4.2 Certificate of Amendment of Certificate of Incorporation of
Cadapult Graphic Systems, Inc. (Incorporated by reference to
Exhibit 3(i)(5) of Annual Report on Form 10-KSB filed on
September 28, 1999)
4.3 Certificate of Incorporation of Media Sciences, Inc.
(Incorporated by reference to Exhibit 3(i)(6) of Annual
Report on Form 10-KSB filed on September 28, 1999)
4.4 Certificate of Amendment of Certificate of Incorporation of
Cadapult Graphic Systems, Inc. (Incorporated by reference to
Exhibit 3(i)(1) of Quarterly Report on Form 10-QSB filed on
May 15, 2002)
4.5 Certificate of Designation (Incorporated by reference to
Exhibit 4.5 of Registration Statement on Form SB-2,
Registration Number 333-91005, originally filed on November
15, 1999)
4.6 Certificate of Amendment of Certificate of Designation of
Series A Preferred Stock (Incorporated by reference to
Exhibit 3(i)(6) of Annual Report on Form 10-KSB filed on
September 15, 2003)
4.7 Certificate of Amendment of Certificate of Designation of
Series A Preferred Stock (Incorporated by reference to
Exhibit 4.7 of Registration Statement on Form SB-2,
Registration Number 333-112340, filed on January 30, 2004).
4.8 Bylaws, as amended and restated (Incorporated by reference
to Exhibit 3(ii) of Current Report on Form 8-K filed on
November 14, 2005)
4.9 Seafoods Plus, Ltd. 1998 Incentive Plan (Incorporated by
reference to Exhibit 4 of Registration Statement on Form S-8
filed on August 13, 1998)
4.10* Media Sciences International, Inc. 1998 Incentive Plan, as
Amended and Restated
5* Opinion on Legality of Law Offices of Dan Brecher
23.1* Consent of J.H. Cohn LLP
23.2* Consent of Law Offices of Dan Brecher (included in Exhibit
5)
----
* Filed herewith
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Item 9. Undertakings.
The undersigned registrant hereby undertakes that it will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the registration statement; and
(iii) include any additional or changed material information
on the plan of distribution;
provided, however, that the registrant does not need to make post-effective
amendments with respect to the information set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above if the information is incorporated by reference from periodic
reports filed by the registrant under the Exchange Act.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Oakland, State of New Jersey, on the March 22, 2006.
MEDIA SCIENCES INTERNATIONAL, INC.
By: /s/ Michael W. Levin
--------------------------------------
Michael W. Levin
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Michael W. Levin Chairman of the Board, President, March 22, 2006
----------------------
Michael W. Levin and Chief Executive Officer
/s/ Kevan Bloomgren Chief Financial Officer March 22, 2006
----------------------
Kevan Bloomgren
/s/ Denise Hawkins Vice President, Controller (former March 22, 2006
----------------------
Denise Hawkins Principal Financial Officer) and
Secretary
/s/ Frances Blanco Director, Vice President, and March 22, 2006
----------------------
Frances Blanco Treasurer
/s/ Donald Gunn Director March 22, 2006
----------------------
Donald Gunn
/s/ Paul C. Baker Director March 22, 2006
----------------------
Paul C. Baker
/s/ Edwin Ruzinsky Director March 22, 2006
----------------------
Edwin Ruzinsky
/s/ Henry Royer Director March 22, 2006
----------------------
Henry Royer
/s/ Alan L. Bazaar Director March 22, 2006
----------------------
Alan L. Bazaar
/s/ Dennis Ridgeway Director March 22, 2006
----------------------
Dennis Ridgeway
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
-------------- ----------------------
4.1 Certificate of Incorporation of Cadapult Graphic Systems,
Inc., a Delaware corporation (Incorporated by reference to
Exhibit 3.1 of Quarterly Report on Form 10-QSB/A filed on
September 1, 1998)
4.2 Certificate of Amendment of Certificate of Incorporation of
Cadapult Graphic Systems, Inc. (Incorporated by reference to
Exhibit 3(i)(5) of Annual Report on Form 10-KSB filed on
September 28, 1999)
4.3 Certificate of Incorporation of Media Sciences, Inc.
(Incorporated by reference to Exhibit 3(i)(6) of Annual
Report on Form 10-KSB filed on September 28, 1999)
4.4 Certificate of Amendment of Certificate of Incorporation of
Cadapult Graphic Systems, Inc. (Incorporated by reference to
Exhibit 3(i)(1) of Quarterly Report on Form 10-QSB filed on
May 15, 2002)
4.5 Certificate of Designation (Incorporated by reference to
Exhibit 4.5 of Registration Statement on Form SB-2,
Registration Number 333-91005, originally filed on November
15, 1999)
4.6 Certificate of Amendment of Certificate of Designation of
Series A Preferred Stock (Incorporated by reference to
Exhibit 3(i)(6) of Annual Report on Form 10-KSB filed on
September 15, 2003)
4.7 Certificate of Amendment of Certificate of Designation of
Series A Preferred Stock (Incorporated by reference to
Exhibit 4.7 of Registration Statement on Form SB-2,
Registration Number 333-112340, filed on January 30, 2004).
4.8 Bylaws, as amended and restated (Incorporated by reference
to Exhibit 3(ii) of Current Report on Form 8-K filed on
November 14, 2005)
4.9 Seafoods Plus, Ltd. 1998 Incentive Plan (Incorporated by
reference to Exhibit 4 of Registration Statement on Form S-8
filed on August 13, 1998)
4.10* Media Sciences International, Inc. 1998 Incentive Plan, as
Amended and Restated
5* Opinion on Legality of Law Offices of Dan Brecher
23.1* Consent of J.H. Cohn LLP
23.2* Consent of Law Offices of Dan Brecher (included in Exhibit
5)
----
* Filed herewith