As filed with the Securities and Exchange Commission on November 23, 1999.
Registration No. 333-88867
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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HOWTEK, INC.
(Exact name of registrant as specified in its charter)
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Delaware 21 Park Avenue 02-0377419
(State or other Hudson, NH 03051 (IRS employer
jurisdiction of (603) 882-5200 identification
incorporation or (Address, including zip code, number)
organization) and telephone number, including
area code, of registrant's principal
executive offices)
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W. Scott Parr
Chief Executive Officer and President
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)
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Copy to:
Robert J. Mittman, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 885-5000
Facsimile: (212) 885-5001
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<PAGE>
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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<PAGE>
HOWTEK, INC.
195,090 Shares of Common Stock
This prospectus relates to an offering by selling stockholders of an
aggregate of up to 195,090 shares of the common stock of Howtek, Inc. All of the
195,090 shares of common stock are being offered for resale by the selling
stockholders pursuant to this prospectus.
The common stock may be offered from time to time by the selling
stockholders through ordinary brokerage transactions in the over-the-counter
markets, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at negotiated prices and in other ways as described in the
"Plan of Distribution." Howtek will not receive any of the proceeds from the
sale of common stock by the selling stockholders.
The common stock is traded on the Nasdaq SmallCap Market under the symbol
"HOWT". On November 19, 1999, the closing sale price of the common stock as
reported by Nasdaq was $1.625.
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An investment in the common stock is speculative and involves a high degree
of risk. See "Risk Factors" beginning on Page 3.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is November 23, 1999.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by Howtek with the Securities and
Exchange Commission are incorporated herein by reference and shall be deemed a
part of this prospectus:
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
(2) Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
(3) Quarterly Report on Form 10-Q for the quarter ended June 30, 1999;
(4) Quarterly Report on Form 10-Q for the quarter ended September 30,
1999; and
(5) The description of our common stock contained in our Registration
Statement on Form 8-A dated March 13, 1985, together with any
amendment or report filed with the SEC for the purpose of updating the
description.
All documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, after the date of this prospectus and before
the termination of the offering of the securities hereby shall be deemed to be
incorporated by reference in this prospectus and to be a part of this prospectus
on the date of filing of the documents. Any statement incorporated in this
prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference in this prospectus modifies or supersedes the
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this prospectus or the
registration statement of which it is a part.
This prospectus incorporates documents by reference with respect to Howtek
that are not presented herein or delivered herewith. These documents are
available without charge to any person, including any beneficial owner of our
securities, to whom this prospectus is delivered, upon written or oral request
to Ms. Connie Webster, Howtek, Inc., 21 Park Avenue, Hudson, New Hampshire
03051, telephone: (603) 882-5200.
Howtek is subject to the informational requirements of the Exchange Act. We
file reports, proxy statements and other information with the SEC. These reports
and other information can be read and copied at the SEC's Public Reference Room
at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-SEC-
0330. Our electronic filings made through the SEC's electronic data gathering,
analysis and retrieval system are publicly available through the SEC's worldwide
web site (http://www.sec.gov).
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<PAGE>
THE COMPANY
Howtek, Inc. develops, manufactures, and markets digitizing systems, or
"scanners", which convert printed, photographic and other "hard copy" images to
digital form, for use in the medical, prepress, photographic, electronic
printing and publishing industries. Howtek focuses on the "high-end" of the
scanning marketplace, targeting corporate customers with a need for high
resolution and high fidelity in their reproduction requirements. Howtek marketed
originally to businesses in prepress, including advertising, corporate, service
bureau and other printing and publishing customers. Recently Howtek expanded its
product offerings for the medical and photographic printing businesses. Howtek
sells its products throughout the world through various distributions,
resellers, and systems integrators.
Our principal executive offices are located at 21 Park Avenue, Madison, New
Hampshire 03051 and our telephone number is (603) 882-5200.
RISK FACTORS
Prospective investors should consider carefully the following risk factors
before purchasing any shares of the common stock offered hereby by the selling
stockholders.
We have a history of incurring significant losses.
We have lost more than $47 million since our inception including net losses
of $3,372,323 for our fiscal year ended December 31, 1998 and $3,600,536 for the
nine months ended September 30, 1999. Our losses may continue for the
foreseeable future.
We have significant outstanding indebtedness, which could prevent us from
borrowing additional funds, if needed.
As of September 30, 1999, we had approximately $2.3 million of outstanding
indebtedness and accrued interest that could impair our ability to obtain
additional financing if required.
Our future operating results will depend on our ability to continue to increase
our sales significantly.
A large percentage of our total sales in recent periods has come from sales
of "drum scanners" in the prepress market, a portion of our business that has
faced intense competition and price pressure and operates on a low-margin basis.
Our ability to improve our financial results in the future will depend on our
ability to successfully accelerate sales growth, particularly in the medical
imaging market as well as sales of our new line of Digital Photolab products to
the photographic printing and scanning markets and sales of "flatbed" scanners
through distribution rights we recently acquired from Scanview AS. We may not be
able to cause our sales rates to grow substantially. Even if our sales rates do
increase, the gross margins that we receive from them may not be sufficient to
make our future operations profitable.
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<PAGE>
Our continued growth depends on retaining our current key employees and
attracting additional qualified personnel.
Our success depends in large part on the abilities and continued service of
our executive officers and other key employees. Although we have entered into
employment agreements with several of our officers and employees, we may not be
able to retain their services. We also have non-competition agreements with our
executive officers and some of our existing key personnel. However, courts are
sometimes reluctant to enforce non-competition agreements. The loss of executive
officers or other key personnel could have a material adverse effect on us.
In addition, in order to support our continued growth, we will be required
to effectively recruit, develop and retain additional qualified management. If
we are unable to attract and retain additional necessary personnel, it could
delay or hinder our plans for growth.
We do not have any patents on software used in our products and rely on trade
secret and copyright laws and agreements with our key employees to protect
certain of our proprietary rights.
Our business success is substantially dependent upon proprietary software
applications relating to our products, some of which we license from third
parties. Although we have certain patents covering our scanner and prepress
technology in the United States and certain foreign countires, we do not
currently own any patents relating to software used in our products and rely on
among other things, trade secret and copyright laws to protect our proprietary
knowledge. We also regularly enter into non-disclosure agreements with our key
employees and limit access to and distribution of our trade secrets and other
proprietary information.
These measures may not prove adequate to prevent misappropriation of
technology used in our products. Our competitors could also independently
develop technologies that are substantially equivalent or superior to our
technology. The laws of some other countries in which we sell our products do
not protect our proprietary rights to the same extent as do U.S. laws. In
addition, although we believe that our proprietary software has been developed
independently and does not infringe upon the rights of others, third parties
might assert infringement claims against us in the future or our technology may
be found to infringe upon the proprietary rights of others.
Our international sales may be adversely effected by continued poor economic
trends in foreign countries in which our products are sold.
Our international sales during the fiscal year ended December 31, 1998 and
the nine months ended September 30, 1999 were adversely affected by the
continued economic weakness in the Asian market. A continued weak international
economy, particularly in Asia, could continue to adversely affect our future
sales. In addition, our overseas sales may be affected by devaluations of
foreign currencies or tariff or other trade barriers that are not subject to our
control.
We face intense competition for all product lines we sell.
We compete with a variety of companies in the sales of our medical imaging
products, photographic products and prepress products and discounting among
manufacturers and distributors of prepress scanner products is intense. We
cannot assure you that we will be able to effectively compete in the future.
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<PAGE>
Products we sell may become obsolete.
Our ability to compete effectively will depend, on large measure, in our
ability to offer state of the art products. Our competitors might develop and
sell new products that are technically superior to our current product line that
could result in our inability to sell existing products or our inability to sell
such products without offering a significant discount. We cannot assure you that
our products will not become obsolete in the future or that we will be able to
upgrade our product line if required.
We depend upon a limited number of suppliers and manufacturers for our products.
The products we sell are generally either manufactured and assembled for us by a
limited number of manufacturers or assembled by us from supplies we obtain from
a limited number of suppliers. We generally do not have long-term arrangements
with any of our manufacturers or suppliers. Our business would be harmed if any
of our manufacturers or suppliers could not meet our product demands in the
future.
The price of our common stock could be volatile.
Our common stock is quoted on the Nasdaq stock market, which market has
experienced, and is likely to experience in the future, significant price and
volume fluctuations which could adversely affect the market price of the common
stock without regard to the operating performance. In addition, the trading
price of our common stock could be subject to significant fluctuations in
response to actual or anticipated variations in our quarterly operating results
announcements by our company or our competitors, factors affecting medical
imaging and digital photographic industries generally, changes in national or
regional economic conditions, changes in securities analysts' estimates for our
competitors' or industry's future performance or general market conditions. The
market price of our common stock could also be affected by general market price
declines or market volatility in the future or future declines or volatility in
the prices of stocks for companies in our industry.
SPECIAL INFORMATION REGARDING FORWARD LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
Prospectus contain forward- looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Forward-looking statements involve
known and unknown risks, uncertainties and other factors which may cause our
actual results, performance or achievements to be materially different from any
future results, performance or achievements expressed or implied by the
forward-looking statements. These statements relate to our future plans,
objectives, expectations and intentions and may be identified by the use of the
words such as believe, expect, anticipate, intend and plan and similar
expressions. Factors that could contribute to these differences include those
discussed in the Risk Factors section appearing elsewhere in this prospectus. We
caution you not to place undue reliance on these forward-looking statements,
which speak only as of the date the statement was made.
USE OF PROCEEDS
We will not receive any proceeds from any sales of shares of common stock
made from time to time hereunder by the selling stockholders. We have agreed to
bear the expenses in connection with the registration of the common stock being
offered and sold by the selling stockholders.
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<PAGE>
DESCRIPTION OF CAPITAL STOCK
General
Howtek is authorized to issue 25,000,000 shares of common stock, $.01 par
value and 1,000,000 shares of preferred stock, $.01 par value. As of November 8,
1999, there were 13,019,296 shares of common stock outstanding and no shares of
preferred stock outstanding.
Common Stock
The holders of our common stock are entitled to one vote per share on all
matters submitted to a vote of the stockholders, including the election of
directors, and, subject to preferences that may be applicable to any preferred
stock outstanding at the time, are entitled to receive ratably dividends, if
any, as may be declared from time to time by the board of directors out of funds
legally available therefor. In the event of liquidation or dissolution of
Howtek, the holders of common stock are entitled to receive all assets available
for distribution to the stockholders, subject to any preferential rights of any
preferred stock then outstanding. The holders of our common stock have no
preemptive or other subscription rights, and there are no conversion rights or
redemption or sinking fund provisions with respect to the common stock. All of
the outstanding shares of common stock are, and the shares of common stock
offered hereby upon sale will be, fully paid and non-assessable. The rights,
preferences and privileges of the holders of our common stock are subject to,
and may be adversely affected by, the right of the holders of any shares of
preferred stock which our Board of Directors may designate in the future.
Preferred Stock
We are authorized to issue 1,000,000 shares of preferred stock from time to
time in one or more series. Our Board of Directors has the power, without
stockholder approval, to issue shares of one or more series of preferred stock,
at any time, for such consideration and with such relative rights, privileges,
preferences and other terms as the Board may determine, including terms relating
to dividend rates, redemption rates, liquidation preferences and voting, sinking
fund and conversion or other rights. The rights and terms relating to any new
series of preferred stock could adversely affect the voting power or other
rights of the holders of the common stock or could be utilized, under certain
circumstances, as a method of discouraging, delaying or preventing a change in
control of our company.
Transfer Agent
The transfer agent and registrar for our common stock is Continental Stock
Transfer & Trust Company, New York, New York.
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<PAGE>
SELLING STOCKHOLDERS
The following table sets forth information with respect to the stockholders
for which shares are being registered for sale:
<TABLE>
<CAPTION>
Beneficial Ownership Shares Beneficially % of Shares
Stockholders for Which of Shares of Common Owned Assuming the Beneficially Owned
Shares are Being Registered Stock, including Shares Shares to be Sold Sale of the Shares Assuming the Sale of
for Sale Registered for Sale in the Offering Registered the Shares Registered
- ---------------------------- ------------------------- ------------------- -------------------- ---------------------
<S> <C> <C> <C> <C>
Tenzer Greenblatt LLP 100,000 100,000 0 0%
Colorbyte Inc. Software 53,334 53,334 0 0
Inverness Corporation 32,000 32,000 0 0
The Applebee Group Inc. 9,756 9,756 0 0
</TABLE>
None of the selling stockholders named in the above table has a material
relationship with Howtek, other than Tenzer Greenblatt LLP which is our
securities counsel. The other selling stockholders have previously provided
Howtek with goods and/or services related to Howtek's business operations.
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<PAGE>
PLAN OF DISTRIBUTION
Howtek is registering the shares on behalf of the selling stockholders. As
used herein, selling stockholders includes donees, transferees and pledgees
selling shares received from a named selling stockholder after the date of this
prospectus. We have agreed to bear the expenses in connection with the
registration of the shares offered and sold by the selling stockholders.
Brokerage commissions and similar selling expenses, if any, attributable to the
sale of shares will be borne by the selling stockholders. Sales of shares may be
effected by selling stockholders from time to time in one or more types of
transactions, which may include block transactions, in the over-the-counter
market, in negotiated transactions, or a combination of these methods of sale,
at market prices prevailing at the time of sale, or at negotiated prices. These
transactions may or may not involve brokers or dealers. The selling stockholders
have advised us that they have not entered into any agreements, understandings
or arrangements with any underwriters or broker-dealers regarding the sale of
their securities.
The selling stockholders may effect transactions by selling shares directly
to purchasers, through agents designated from time to time, or to or through
broker-dealers, which may act as agents or principals. These broker-dealers may
receive compensation in the form of discounts, concessions, or commissions from
the selling stockholders and/or the purchasers of shares for whom broker-dealers
may act as agents or to whom they sell as principal, or both (which compensation
as to a particular broker-dealer might be in excess of customary commissions).
The selling stockholders and any broker-dealers that act in connection with
the sale of shares of common stock might be deemed to be underwriters, within
the meaning of Section 2(a)(11) of the Securities Act, and any commissions
received by broker-dealers and any profit on the resale of the shares sold by
them while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act. Howtek has agreed to indemnify some of the
selling stockholders against certain liabilities, including liabilities arising
under the Securities Act. The selling stockholders may agree to indemnify any
agent, dealer or broker-dealer that participates in transactions involving sales
of the shares of common stock against certain liabilities, including liabilities
arising under the Securities Act.
Because selling stockholders may be deemed to be underwriters, within the
meaning of Section 2(a)(11) of the Securities Act, the selling stockholders will
be subject to the prospectus delivery requirements of the Securities Act.
Selling stockholders also may resell all or a portion of the shares of
common stock in open market transactions in reliance upon Rule 144 under the
Securities Act, provided they meet the criteria and conform to the requirements
of Rule 144.
LEGAL MATTERS
The legality of the shares of common stock offered hereby was passed upon
for Howtek by Tenzer Greenblatt LLP, New York, New York. Tenzer Greenblatt LLP
is a selling stockholder of certain shares of common stock being offered
pursuant to this prospectus.
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<PAGE>
EXPERTS
The financial statements and schedule 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.
WHERE YOU CAN FIND INFORMATION
Howtek has filed with the SEC, a Registration Statement with respect to the
securities offered by this prospectus. This prospectus, filed as part of such
Registration Statement, does not contain all of the information set forth in, or
annexed as exhibits to, the Registration Statement, portions of which have been
omitted in accordance with the rules and regulations of the SEC. For further
information with respect to Howtek and this offering, reference is made to the
Registration Statement, including exhibits filed therewith, which may be read
and copied at the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at its regional offices: 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade Center, 13th Floor,
New York, New York 10048. You can obtain copies of these materials at prescribed
rates from the Public Reference Room of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. Our electronic
filings made through the SEC's electronic data gathering, analysis and retrieval
system are publicly available through the SEC's worldwide web site
(http://www.sec.gov).
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<PAGE>
================================================================================
We have not authorized any dealer, sales person or any other person to give
any information or to represent anything not contained in this prospectus. You
must not rely on any unauthorized information. This prospectus does not offer to
sell or buy any securities in any jurisdiction where it is unlawful.
TABLE OF CONTENTS
Page
----
Incorporation of Certain Documents
by Reference.............................................................. 2
The Company................................................................. 3
Risk Factors................................................................ 3
Special Information Regarding
Forward Looking Information............................................... 5
Use of Proceeds............................................................. 5
Description of Capital Stock................................................ 6
Selling Stockholders ....................................................... 7
Plan of Distribution........................................................ 8
Legal Matters............................................................... 8
Experts..................................................................... 9
Where You Can Find Information.............................................. 9
================================================================================
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195,090 Shares
Common Stock
HOWTEK, INC.
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PROSPECTUS
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November 23, 1999
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution*.
The following are the estimated expenses of the issuance and distribution
of the securities being registered, all of which will be paid by the Registrant:
SEC registration fee ..................................... $ 100.00
Printing expenses ........................................ 2,000.00
Legal fees and expenses .................................. 10,000.00
Accounting fees and expenses ............................. 2,000.00
Miscellaneous ............................................ 2,900.00
Total ............................................ $17,000.00
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* All amounts are estimated except the first item.
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 Ninth of Howtek's Certificate of Incorporation provides that:
"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 omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the
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<PAGE>
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."
Article VI, Section 6.41 of Howtek's By-Laws 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1993 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to any charter provision, by-law, contract, arrangement,
statute or otherwise, the Registrant has 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.
Item 16. Exhibits
(a) Exhibits
Exhibit
Number Description
- ------ -----------
5 Opinion of Tenzer Greenblatt, LLP as to the legality of the securities
being registered*
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Tenzer Greenblatt, LLP (ncluded in opinion filed as Exhibit
5)*
24 Power of Attorney, included in the signature page of this Registration
Statement
- ------------
* Previously filed
Item 17. Undertakings.
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:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act; and
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(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 (i) and (ii) above 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 and Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for purposes of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) 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.
(5) That, 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 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
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<PAGE>
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 of filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, in the City of Hudson,
State of New Hampshire, on the 19th day of November, 1999.
HOWTEK, INC.
By: /s/ W. Scott Parr
----------------------------------------
W. Scott Parr, Chief Executive
Officer and President
Each person whose signature appears below hereby authorizes each of W.
Scott Parr and Annette Heroux or either of them as his true and lawful
attorney-in-fact with full power of substitution to execute in the name and on
behalf of each person, individually and in each capacity stated below, and to
file, any and all amendments to this Registration Statement, including any and
all post-effective amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 was signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ W.Scott Parr Chief Executive Officer, President and Director November 19, 1999
- --------------------- Principal Executive Officer)
W. Scott Parr
/s/ Annette Heroux Corporate Controller, November 19, 1999
- --------------------- Chief Financial Officer
Annette Heroux (Principal Accounting and
Financial Offer)
/s/ * Director November 19, 1999
- ---------------------
Robert Howard
/s/ * Director November 19, 1999
- ---------------------
Ivan Gati
/s/ * Director November 19, 1999
- ---------------------
Sheila Horwitz
/s/ * Director November 19, 1999
- ---------------------
Kit Howard
/s/ * Director November 19, 1999
- ---------------------
Harvey Teich
*By /s/ W. Scott Parr November 19, 1999
----------------------------------
W. Scott Parr, as attorney-in-fact
</TABLE>
II-5
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Howtek, Inc.
Hudson, New Hampshire
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated February
12, 1999 (except for note 4, for which the date is March 23, 1999), relating to
the financial statements and schedule of Howtek, Inc appearing in the Company's
Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
New York, New York
November 19, 1999
