<PAGE> 1
As filed with the Securities and Exchange Commission on July 26, 1995.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
HOWTEK, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
02-0377419
(I.R.S. employer identification number)
21 Park Avenue, Hudson, New Hampshire 03051 (603) 882-5200
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Mr. Stewart K. Hall, Esq.
General Counsel
Howtek, Inc.
21 Park Avenue
Hudson, NH 03051
(603) 882-5200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the
public: from time to time after the effective date of this Registration
Statement as determined by market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
<PAGE> 2
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [X]
<TABLE>
CALCULATION OF REGISTRATION FEE
-------------------------------
<CAPTION>
Proposed Proposed
Title of maximum maximum
Shares Amount offering aggregate Amount of
to be to be price per offering registration
registered registered unit (1) price (1) fee
- ---------- ---------- -------- --------- ------------
<S> <C> <C> <C> <C>
Common 50,000 $9.81 $490,500 $169.14
Stock,
$.01 par
value
- ------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(c) under the
Securities Act of 1933. The proposed maximum offering price
is based on the average of the high and low prices of the
Company's Common Stock as reported on the NASDAQ National
Market System on July 20, 1995.
</TABLE>
The Common Stock being registered consists of 50,000 shares of
Common Stock, $.01 per share par value, as described in the
Selling Stockholders and Plan of Distribution sections of the
Prospectus.
Pursuant to Rule 416, there are also registered hereby such
additional indeterminate number of shares of such Common Stock as
may become issuable to prevent dilution resulting from stock
splits, stock dividends or similar transactions as set forth in
the provisions of the Convertible Debentures.
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date
until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 3
<TABLE>
HOWTEK, INC.
Cross Reference Sheet
Pursuant to Item 501(b) of Regulation S-K
Showing location in Prospectus of Information
Required by Items of Form S-3
<CAPTION>
Form S-3 Item Caption or Location
Number and Location in Prospectus
------------------- --------------------
<S> <C> <C>
1. Forepart of the Registration
Statement and Front Cover Page
of Prospectus......................................... Forepart of the Registration Statement;
Outside Front cover Page of Prospectus
2. Inside Front and Outside Back
Cover Page of Prospectus.............................. Inside Front Cover Page of Prospectus;
Available information; Incorporation of
Certain Documents by Reference
3. Summary Information, Risk
Factors and Ratio of Earnings
to Fixed Charges...................................... The Company; Prospectus Summary;
Risk Factors
4. Use of Proceeds....................................... Use of Proceeds
5. Determination of Offering Price Outside Front Cover Page of
Prospectus; Selling Stockholder
6. Dilution.............................................. Not Applicable
7. Selling Security Holders.............................. Selling Stockholders
8. Plan of Distribution.................................. Plan of Distribution
9. Description of Securities to
be registered......................................... Not Applicable
10. Interests of Named Experts and
Counsel............................................... Legal Opinions; Experts
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
11. Material Changes................................... Risk Factors; Incorporation of
Certain Documents by Reference
12. Incorporation of Certain
Information by Reference........................... Incorporation of Certain Documents
by Reference
13. Disclosure of Commission
Position on Indemnification
for Securities Act Liabilities..................... Not Applicable
</TABLE>
<PAGE> 5
INFORMATION CONTAINED HEREIN IS SUBMECT TO COMPLETION OF AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITAITON OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE INWHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICIATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Preliminary Prospectus dated July 26, 1995
Subject to Completion
PROSPECTUS
HOWTEK, INC.
50,000 Shares
Howtek Common Stock ($.01 Par
Value Per Share)
The shares of Common Stock of the Company offered hereby (the "Shares")
are being offered for the account of the Selling Stockholder specified herein.
See "Selling Stockholder". The Shares will be issued to the Selling
Stockholder in connection with the payment of legal services rendered to the
Company by the Selling Stockholder pursuant to an agreement dated July 20,
1995. It is anticipated that usual and customary brokerage fees will be paid by
the Selling Stockholder on the sale of the Common Stock registered hereby. The
Company will pay the other expenses of this offering. See "Plan of
Distribution".
The Company's Common Stock, par value $.01 per share, is listed on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") National Market. The last reported bid price of the Common Stock on
the NASDAQ National Market on July 20, 1995 was $9.75 per share.
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A HIGH DEGREE
OF RISK. SEE "RISK FACTORS".
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is July 26, 1995.
<PAGE> 6
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus in connection with the offer
contained in this Prospectus, and, if given or made, such other information or
representations must not be relied upon as having been authorized by the
Company or the Selling Stockholders. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy the securities offered
hereby in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of the Company
since the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can
be inspected and copied at the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, Room 1024 and at the public
reference facilities maintained by the Commission at 7 World Trade Center, New
York, New York 10007; Suite 1400, Northwestern Atrium Center, 500 West Madison
Street, Chicago, Illinois 60661; and Suite 500 East, Securities and Exchange
Commission Building, 5670 Wilshire Boulevard, Los Angeles, California 90036.
Copies can be obtained from the Commission at prescribed rates by writing to
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. In addition,
such reports, proxy statements and similar information can be inspected and
copied at the National Association of Securities Dealers, 1735 K Street, N.W.,
Washington, DC 20006-1500. This Prospectus, which constitutes part of a
Registration Statement filed by the Company with the Commission under the
Securities Act of 1933 (the "Securities Act") omits certain of the information
contained in the Registration Statement in accordance with the rules and
regulations of the Commission. Reference is hereby made to the Registration
Statement and to the Exhibits relating thereto for further information with
respect to the Company and the Securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 1994; its Quarterly Reports on Form 10-Q for its quarters ended
March 31 and June 30, 1995, and the description of the Company's Common Stock
contained in its Registration Statement on Form 8-A dated March 13, 1985, all
of which have been previously filed with the Commission, are incorporated in
this Prospectus by reference. All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date hereof and prior to the termination of the offering made hereby are
also incorporated by reference herein. Any statement contained in a document
incorporated by reference herein is modified or superseded for all purposes to
<PAGE> 7
the extent that a statement contained in this Prospectus or in any
other subsequently filed document which is incorporated by reference modifies
or replaces such statement. The Company will provide without charge to each
person, including any beneficial owner, to whom a copy of this Prospectus is
delivered, upon the written or oral request of such person, a copy of all
documents incorporated herein by reference (not including the exhibits to such
documents, unless such exhibits are specifically incorporated by reference in
such documents). Requests for such copies should be directed to: Connie
Webster, Howtek, Inc., 21 Park Avenue, Hudson, New Hampshire 03051; telephone
number (603) 882 - 5200.
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
----
<S> <C>
Available Information............................................... 2
Incorporation of Certain Documents by Reference..................... 2
Prospectus Summary.................................................. 4
The Company......................................................... 4
Risk Factors........................................................ 5
Use of Proceeds..................................................... 7
Selling Stockholder................................................. 8
Plan of Distribution................................................ 8
Experts............................................................. 9
Legal Opinions...................................................... 9
</TABLE>
<PAGE> 8
PROSPECTUS SUMMARY
The following summary information is qualified in its entirety by the
more detailed information appearing elsewhere in this Prospectus or
incorporated herein by reference and the financial statements which are
incorporated herein by reference.
<TABLE>
<S> <C>
THE COMPANY ..................... Howtek, Inc. (the "Company") designs, engineers and
manufactures a family of flatbed and drum scanners for the
graphic arts, desktop publishing, life sciences and medical
imaging markets.
RISK FACTORS .................... The Offering involves substantial risk. See "Risk Factors".
SECURITIES OFFERED............... 50,000 shares of Company common stock, par value $.01 per share.
OFFERING PRICE................... All or part of the Shares offered hereby may be sold
from time to time in amounts and on terms to be determined by the
Selling Stockholder at the time of sale.
USE OF PROCEEDS.................. The Company will receive no proceeds from this
offering.
SELLING STOCKHOLDER.............. The Shares being offered hereby are being offered for
the account of the Selling Stockholder
specified under the caption "Selling Stockholder".
NASDAQ/NMS TRADING
SYMBOL......................... "HOWT"
</TABLE>
THE COMPANY
The Company designs, engineers and manufactures a family of flatbed and
drum scanners for the graphic arts, desktop publishing, life sciences and
medical imaging markets. The Company's product offering includes the
Scanmaster[TM] 7500 and 4500 high resolution, drum scanners which incorporate
photomultiplier tube technology and the Scanmaster 2500, DX and Pro G,
reflective and transmissive flatbed scanners which use charge coupled device
technology;
<PAGE> 9
The Company was incorporated in the State of Delaware on February 24,
1984. The Company's principal offices and research and development facilities
are located at 21 Park Avenue, Hudson, NH 03051 and its telephone number is
(603) 882-5200.
RISK FACTORS
1. HISTORY OF INCOME/LOSSES. The Company was organized in February
1984. During the periods ended December 31, 1990, 1991, 1992, 1993 and 1994
the Company had net income (losses) of ($2,322,695), ($5,036,544), $3,807.671,
($784,956), and $880,420 respectively. During the first six months of 1995 the
Company reported a net loss (unaudited) of ($2,668,343) or ($.34) per share, as
compared to a loss of ($296,819) or ($.04) per share recorded in the first half
of 1994. Of the net loss reported for the first six months of 1995,
($2,662,632), or ($.34) per share resulted from a restructuring charge. The
likelihood of the success of the Company must be considered in light of the
risks, expenses, difficulties, competition and delays frequently encountered in
connection with the design, development and bringing to market of digital
scanner products.
2. CASH FLOW AND WORKING CAPITAL REQUIREMENTS. Based upon its
anticipated level of sales and the line of credit available to it under the $8
million Convertible Revolving Loan Agreement with its Chairman, of which
$5,421,396 was available as of June 30, 1995, management believes that the
Company can adequately fund its presently anticipated working capital and
capital requirements for the next twelve months. However, there can be no
assurance that such revolving line of credit and the level of sales will be
sufficient to meet the Company's working capital requirements for such period.
3. UNCERTAINTY OF MARKET ACCEPTANCE. The Company's principal
revenues are derived from the sale and service of its Scanmaster family of drum
and charge coupled device ("ccd array") flatbed scanners. The Company's 4500
drum scanner is the major contributor to revenues in its scanner business. In
spite of strong acceptance of the 4500 in the low and mid-range drum scanner
market, there can be no assurance that competitive products will not be
introduced by other companies that will replace the 4500's strong presence in
such market.
Achieving market acceptance of the Company's products requires
substantial marketing efforts and the expenditure of significant funds to
inform potential customers of the Company's products. For the most part, the
Company intends to rely upon sales to distributors, original equipment
manufacturers ("OEM's"), value added resellers and office equipment systems
integrators. There can be no assurance that adequate marketing arrangements
will be made, or that such arrangements will generate sufficient revenues to
achieve continuing profitability.
4. COMPETITION. The Company currently competes with several other
companies for sales of its drum and ccd array scanners. Among its current and
potential competitors are numerous foreign and domestic companies in the
scanner market. Many of these competitors are well established, have financial
and other resources substantially greater than those of the Company and have an
established reputation for success in the development, sale and service of
products that will be
<PAGE> 10
competitive with those of the Company. There can be no assurance that the
Company will be able to compete successfully with other companies or that it
will achieve continuing profitability.
5. TECHNOLOGICAL OBSOLESCENCE. Because of significant and rapid
technological changes in the Company's industry, there can be no assurance that
the introduction of new products or the further development of old technologies
by other entities will not render the Company's products and processes obsolete
or unmarketable. Moreover, increased market penetration and customer
acceptance of the Company's products will depend upon the Company's ability to
maintain a technically competent product development and marketing force and
its ability to adapt to rapid technological changes in its industry.
6. MANUFACTURING AND DISTRIBUTION. The Company's scanner products
are produced by the Company. Although the Company monitors product quality, no
assurance can be given that all manufacturing defects will be detected or that
manufacturers will comply with specifications or production time schedules.
Delays could result in the loss of sales. Defects could additionally result in
product recalls and in potential liabilities for the consequences of such
defects. Distribution of some of the Company's products is expected to be time
sensitive for competitive reasons, and delays at any stage of a planned
production or distribution process could adversely affect the Company. There
can be no assurance that the Company can, on terms acceptable to the Company,
obtain materials for adequate quality manufacturing or arrange for an adequate
distribution network for the Company's products.
7. LACK OF PATENT PROTECTION. The Company has been issued fifteen
patents with respect to its products to date. Ten of these patents relate to
the Company's thermal ink jet technology which it developed in the mid-1980's
and was utilized in its Pixelmaster ink jet printer product which it has phased
out of production. The Company has no present plans to develop any products
based upon thermal ink jet technology, but it is seeking to license or otherwise
commercially exploit this technology. Two of the Company's patents relate to
its former Colorscan business and three patents have issued, with several others
pending, in connection with the Company's drum scanner technology. The Company
intends to apply for other patents and copyrights as needed. There can be no
assurance as to the issuances of any such patents, the breadth or degree of
protection which the Company's patents or copyrights may afford the Company, or
that the Company will have the resources to protect its patents. There is rapid
technological development in the Company's industry with concurrent extensive
patent filings by competitor companies and a rapid rate of issuance of new
patents. The Company believes that its technology has been independently
developed and does not infringe the patents of others; however, certain
components of the Company's products could infringe patents, either existing or
which may be issued in the future, in which event the Company may be required to
modify its design or obtain a license. No assurance can be given that the
Company will be able to do so in a timely manner or upon acceptable terms and
conditions; and the failure to do either of the foregoing could have a material
adverse effect upon the Company's business. Furthermore, the Company may not
have the resources to defend itself against a claim of infringement.
<PAGE> 11
8. LACK OF DIVIDENDS. The Company has not paid any cash dividends
since its inception. The Company presently does not intend to pay any
dividends in the foreseeable future, and intends to retain all earnings, if
any, for use in its business operations.
USE OF PROCEEDS
The Selling Stockholder will apply the proceeds of the sale of Shares
against outstanding legal fees owed by the Company. The Company will receive
no proceeds from the sale of the Shares offered hereby by the Selling
Stockholder.
<PAGE> 12
SELLING STOCKHOLDER
The following table sets forth information concerning the
beneficial ownership of shares of Common Stock by the Selling
Stockholder as of the date of this Prospectus and the number of
such shares included for sale in this Prospectus. Such
information was furnished to the Company by the Selling
Stockholder.
<TABLE>
<CAPTION>
Shares Shares
owned to be
prior to sold in
Name Offering Offering
---- -------- --------
<S> <C> <C>
Devine, Millimet & Branch 50,000 50,000
Professional Association
111 Amherst Street
P.O. Box 719
Manchester, NH 03105
- -----------------------------------------------------------------
</TABLE>
The Selling Stockholder has not held any office or maintained any
material relationship with the Company or any of its predecessors
or affiliates over the past three years. The Selling Stockholder
reserves the right to reduce the number of shares offered for
sale or to otherwise decline to sell any or all of the Shares
registered hereunder.
PLAN OF DISTRIBUTION
The Selling Stockholder has agreed to sell the Shares pursuant to
the terms of a Letter Agreement dated July 20, 1995 between the
Company and the Selling Stockholder which, inter alia, prohibits
the sale of more than 2,000 Shares in any given day without the
express approval of the Company. It is anticipated that usual
and customary brokerage fees will be paid by the Selling
Stockholder. The Company will pay the other expenses of this
offering. The Shares may be sold by one or more of the
following: (a) a block trade in which the broker 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;
(b) purchases by a broker or dealer as principal and resale by
such broker or dealer for its account pursuant to this
Prospectus; and (c) ordinary brokerage transactions.
<PAGE> 13
EXPERTS
The financial statements and schedules incorporated by reference
in this Prospectus have been audited by BDO Seidman, LLP,
independent certified public accountants, to the extent and for
the periods set forth in their report incorporated herein by
reference, and are incorporated herein in reliance upon such
report given upon the authority of said firm as experts in
auditing and accounting.
LEGAL OPINIONS
The validity of the shares of Common Stock offered hereby, will
be passed upon for the Company by Stewart K. Hall, Esq., General Counsel
and Secretary of the Company, 21 Park Avenue Hudson, New Hampshire 03051.
<PAGE> 14
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance
and distribution of the Common Stock to be registered are estimated (except for
the Securities and Exchange Commission filing fee) below. All such expenses
will be paid by the Registrant.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee.... $ 169.14
Accounting Fees and Expenses...................... 500.00
Legal Fees and Expenses........................... 2,000.00
Transfer Agent Fees............................... 100.00
Miscellaneous..................................... 100.00
---------
Total Expenses $2,869.14
</TABLE>
Item 15. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
generally provides that a corporation may indemnify any director, officer,
employee or agent against expenses, judgments, fines and amounts paid in
settlement in connection with any action against him by reason of his being or
having been such a director, officer, employee or agent, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action, had
no reasonable cause to believe his conduct was unlawful. No indemnification
shall be made, however, if he is adjudged liable for negligence or misconduct
in the performance of his duty to the corporation, unless a court determines
that he is nevertheless entitled to indemnification. If he is successful on the
merits or otherwise in defending the action, the corporation must indemnify him
against expenses actually and reasonably incurred by him.
Article VI, Section 6.41 of the Company's By-Law contains the
following provision:
6.41 Indemnification. The Corporation will
indemnify each Officer and/or Director of this Corporation to the full
extent permitted by the Laws of the State of Delaware.
Article Ninth of the Company's Certificate of Incorporation
contains the following provision:
NINTH: No Director of the Corporation shall be
personally liable to the Corporation or its stockholders for
any monetary damages for breaches of fiduciary duty as a
director, provided that this provision shall not eliminate
or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the Corporation or its
stockholders; (ii) for acts or
<PAGE> 15
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under
Section 174 of the General Corporation Law of the State of
Delaware; or (iv) for any transaction from which the
director derived an improper personal benefit. No repeal or
modification of this Article NINTH shall adversely affect
any right or protection of a director of the Corporation
existing at the time of such repeal or modification with
respect to any acts or omissions of such director occurring
in whole or in part prior to the effective date of such
repeal or modification.
Item 16. Exhibits
The following documents are filed as Exhibits to this
Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4. Form of Common Stock Certificate incorporated by
reference to the Company's Form 8-A, filed on March 13,
1985.
5. Opinion of Stewart K. Hall, Esq., regarding legality of shares
registered hereunder.
10. Letter Agreement dated July 20, 1995 between Howtek, Inc. and
Devine, Millimet & Branch
24(a) Consent of BDO Seidman
24(b) Consent of Stewart K. Hall, Esq. included in Exhibit 5.
</TABLE>
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a) (3) of
the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
<PAGE> 16
(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 (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will be governed by the final adjudication of such
issue.
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town
of Hudson, State of New Hampshire, on July 26, 1995.
HOWTEK, INC.
By: /s/ David R. Bothwell
----------------------
David R. Bothwell, Acting President,
Chief Executive Officer
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert Howard Chairman of the Board, July 26, 1995
----------------------- of Directors
Robert Howard
/s/ David R. Bothwell Acting President, Chief July 26, 1995
----------------------- Executive Officer,
David R. Bothwell Director (Principal Executive Officer)
/s/ Robert Lungo Vice President Chief Financial July 26, 1995
----------------------- Officer (Principal Financial and
Robert Lungo Accounting Officer)
/s/ Ivan Gati Director July 26, 1995
-----------------------
Ivan Gati
/s/ Nat Rothenberg Director July 26, 1995
-----------------------
Nat Rothenberg
/s/ Harvey Teich Director, July 26, 1995
-----------------------
Harvey Teich
</TABLE>
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT N0. DESCRIPTION
- ----------- -----------
<S> <C>
4. Form of Common Stock Certificate incorporated by
reference to the Company's Form 8-A, filed on March
13, 1985.
5. Opinion of Stewart K. Hall, Esq.,
regarding legality of shares registered
hereunder.
10. Letter Agreement dated July 20, 1995 between Howtek, Inc. and Devine, Millimet & Branch
23(a) Consent of BDO Seidman
23(b) Consent of Stewart K. Hall, Esq. included in Exhibit 5.
</TABLE>
<PAGE> 1
Howtek
EXHIBIT 5
July 26, 1995
Howtek, Inc.
21 Park Avenue
Hudson, New Hampshire
Gentlemen:
I have represented Howtek, Inc., a Delaware corporation (hereinafter
called the "Corporation"), in connection with the proposed offering described
below.
In my capacity as General Counsel to the Corporation, I am familiar
with the Certificate of Incorporation, as amended, and the By-Laws of the
Corporation, as amended. I am also familiar with the corporate proceedings
taken by the Corporation in connection with the issuance of the shares of
Common Stock referred to in the Registration Statement on Form S-3 to which
this letter is attached as an exhibit (the "Registration Statement").
Based upon the foregoing, I am of the opinion that:
1. The Corporation is duly organized and validly existing under the
laws of the State of Delaware.
2. The Common Stock to be issued to the Selling Stockholders in
connection with the payment of legal fees incurred by the Corporation, when
issued will be legally issued, fully paid and non-assessable.
This opinion is provided solely for the benefit of the addressee hereof
and is not to be relied upon by any other person or party. Nevertheless, I
hereby consent to the use of this opinion as Exhibit 5 to said Registration
Statement on Form S-3 and any subsequent post effective amendments to said
Registration Statement, and to the use of my name as your counsel in the
Registration Statement and in the Prospectus forming a part thereof. In giving
the foregoing consent, I do not hereby concede that I come within any of the
categories of persons whose consent is required under the Act or the General
Rules and Regulations promulgated thereunder.
Very truly yours,
Stewart K. Hall
General Counsel
Howtek, Inc., 21 Park Avenue, Hudson, NH 03051 U.S.A., (603) 882-5200, FAX
(603) 880-3843
<PAGE> 1
EXHIBIT 10
July 20, 1995
Steven E. Grill, Esq.
Devine, Millimet & Branch PA
111 Amherst Street
P.O. Box 719
Manchester, NH 03105
Dear Steve:
This letter sets forth the terms of an agreement between Howtek, Inc.
("Howtek") and Devine, Millimet & Branch ("Devine Millimet") whereby Howtek
will issue shares of its Common Stock, par value $.01 per share ("Common
Stock"), to pay for legal services rendered by Devine Millimet in connection
with the matter of Howtek v. TECO Machinery Co. Ltd. et al ("TECO").
Devine Millimet estimates that in addition to outstanding and unpaid
invoices already submitted to Howtek which total $126,081.57 through May 31,
1995, Howtek may incur additional costs consisting of legal fees, litigation
support costs, court costs, deposition costs, travel expenses, trial experts
and related costs, in an amount of at least $230,000, through completion of
trial, currently anticipated to take place in December of 1995 or January of
1996. Furthermore, should either TECO or Howtek elect to appeal the lower court
decision in this matter, the additional costs to Howtek could amount to at
least $50,000.
As payment for the estimated costs described above and subject to the
terms of this Agreement, Howtek agrees to issue 50,000 shares (the "Shares")
of Howtek Common Stock, (based upon a market price of $8 per share) to Devine
Millimet in a private placement transaction pursuant to Section 4(2) of the
Securities Act of 1933 ("33 Act").
The Shares will be unregistered and will bear a '33 Act legend
restricting transfer. Upon the issuance of the Shares, Howtek undertakes to
immediately proceed to prepare and file with the Securities and Exchange
Commission ("SEC") a Registration Statement on Form S-3 ("S-3") to register
the resale of the Shares. The expense associated with preparing and filing the
S-3 shall be borne by Howtek. Devine Millimet agrees to the issuance and
registration of the Shares as described herein upon confirmation to its
satisfaction that they comply in all respects with the rules of the SEC.
Upon notification by the SEC that the S-3 is effective, Devine
Millimet will then be entitled to sell the Shares to pay off any outstanding
Devine Millimet invoices to Howtek (or other invoices related to the
TECO litigation that Devine Millimet has assumed payment of) and to
discharge new invoices as they become due, subject to review and acceptance
thereof by Howtek's General Counsel, Stewart Hall, or another Howtek
<PAGE> 2
designee. Devine Millimet agrees that it will not sell the Shares in such
amounts or manner which will materially adversely impact the market price of
the Howtek stock as quoted on the American Stock Exchange, and in no event will
sell more than 2,000 shares of the Shares in any one trading day without the
approval of David R. Bothwell, Howtek's Chief Executive Officer.
This Agreement is made on the understanding that Howtek has an
obligation to pay, and will pay, all of the fees, costs and expenses incurred
by Devine Millimet in connection with the TECO litigation notwithstanding the
sufficiency or insufficiency of the proceeds (net of broker's commissions) from
the sale of the Shares issued hereunder. Devine Millimet agrees to accept the
Shares with the understanding that it is not assuming the market risk for the
price of the stock and that should such price decline or should the amount of
stock issued pursuant to this Agreement be insufficient to pay for the actual
legal fees and related costs of the TECO litigation, Howtek agrees to pay such
additional amounts as they come due. Conversely, should the TECO litigation be
concluded or prematurely terminated, with all invoices paid and Devine Millimet
retaining excess Shares, then Devine Millimet shall return such remaining
Shares to Howtek. Howtek further retains the right, at any time to pay any
outstanding invoices with cash and to direct Devine Millimet to return all or
any portion of the Shares, provided it is then current in its outstanding
invoices to Devine Millimet.
If the terms of this Agreement are acceptable, please acknowledge your
acceptance by signing in the appropriate space below and returning a duplicate
original of this Agreement for our files.
Howtek, Inc.
By: /s/ David R. Bothwell
-----------------------
David R. Bothwell
Chief Executive Officer
AGREED:
Devine, Millimet & Branch
/s/ Paul C. Remus
- --------------------------
Name Paul C. Remus
Title V.P.
Date 7/21/95
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Howtek, Inc.
Hudson, New Hampshire
We hereby consent to the incorporation by reference in this Prospectus
constituting part of this Registration Statement of our report dated February
14, 1995, relating to the financial statements and schedules of Howtek, Inc.
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO SEIDMAN LLP
New York, New York
July 24, 1995
