<PAGE> 1
As filed with the Securities and Exchange Commission on November 19, 1999
File No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------------
BITWISE DESIGNS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 2165 Technology Drive 14-1673067
(State of Incorporation) Schenectady, NY 12308 (I.R.S. Employer
(518) 346-7799 Identification Number)
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-----------------
John T. Botti
Chief Executive Officer
2165 Technology Drive
Schenectady, NY 12308
(518) 346-7799
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
-----------------
With copies to:
Victor J. DiGioia, Esq.
Michael A. Goldstein, Esq.
GOLDSTEIN & DIGIOIA, LLP
369 Lexington Avenue
New York, New York 10017
Telephone (212) 599-3322
Facsimile (212) 557-0295
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plan, 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]
---
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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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class of Securities Offering Aggregate Amount of
Being Registered Amount to be Price per Offering Registration
Registered (1) Share(2) Price(2) Fee(3)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value...................... 112,000 $5.50 $616,000 $171.25
- --------------------------------------------------------------------------------------------------------------
Total...................... 112,000 $616,000 $171.25
==============================================================================================================
</TABLE>
(1) Pursuant to Rule 416, there are registered herewith an additional
indeterminate number of shares of Common Stock that may be become issuable
in connection with the antidilution provisions of the Warrants, the
underlying shares of which are being registered hereby.
(2) Estimated solely for the purpose of determining the registration fee, in
accordance with Rule 457(h), based on the average of the closing bid and
asked prices of a share of Common Stock as quoted on the Nasdaq SmallCap
Market on November 15, 1999, ($5.50 per share).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SECTION 8(a) MAY
DETERMINE.
ii
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed with the Commission as part of this registration
statement or prospectuses or prospectus supplement pursuant to R.424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Bitwise Designs, Inc. will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon the written or oral request of any
such person: (1) a copy of any document described in Item 3 of Part II of this
Registration Statement, which documents are incorporated by reference in the
Section 10(a) Prospectus (other than exhibits); and (2) the documents required
to be delivered to employees pursuant to Rule 428(b). Requests for such copies
should be directed to Dennis Bunt, Chief Financial Officer, Bitwise Designs,
Inc., 2165 Technology Drive, Schenectady, New York 12308, telephone (518)
346-7799.
<PAGE> 4
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by Bitwise with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference, except as
superseded or modified herein:
1. Our Annual Report on Form 10-KSB for the fiscal year ended June 30,
1999;
2. Our Quarterly Report on Form 10-QSB for the fiscal quarter ended
September 30, 1999; and
3. The description of our common stock contained in our registration
statement on Form S-3 as filed with the Securities and Exchange
Commission on July 18, 1996 (File No. 333-05445), including any
amendments or reports filed for the purpose of updating such
descriptions.
All documents that we file subsequent to the date of this Prospectus
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to
the filing of a post-effective amendment which indicates that all Shares offered
hereby have been sold or which deregisters all Shares then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed modified or superseded for
purposes of this Registration Statement and Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement of which this Prospectus forms a part.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of Delaware provides generally that a
corporation may indemnify any person who was or is a party to or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative in nature,
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
and, in a proceeding not by or in the right of the corporation, judgments, fines
and amounts paid in settlement, actually and reasonably incurred by him in
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connection with such suit or proceeding, if he acted in good faith and in a
manner believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reason to believe his conduct was unlawful. Delaware law further provides that a
corporation will not indemnify any person against expenses incurred in
connection with an action by or in the right of the corporation if such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for the expenses
which such court shall deem proper.
Our By-Laws provide for indemnification of our officers and directors to
the greatest extent permitted by Delaware law for any and all fees, costs and
expenses incurred in connection with any action or proceeding, civil or
criminal, commenced or threatened, arising out of services by or on behalf of
us, providing such officer's or director's acts were not committed in bad faith.
The By-Laws also provide for advancing funds to pay for anticipated costs and
authorizes the Board to enter into an indemnification agreement with each
officer or director.
In accordance with Delaware law, our Certificate of Incorporation contains
provisions eliminating the personal liability of directors, except for (i)
breaches of a director's fiduciary duty of loyalty to us or to our stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law, and (iii) any transaction in which a director
receives an improper personal benefit. These provisions only pertain to breaches
of duty by directors as such, and not in any other corporate capacity, e.g., as
an officer. As a result of the inclusion of such provisions, neither Bitwise nor
our stockholders may be able to recover monetary damages against directors for
actions taken by them which are ultimately found to have constituted negligence
or gross negligence, or which are ultimately found to have been in violation of
their fiduciary duties, although it may be possible to obtain injunctive or
equitable relief with respect to such actions. If equitable remedies are found
not to be available to stockholders in any particular case, stockholders may not
have an effective remedy against the challenged conduct.
We have entered into Indemnification Agreements with each of our directors
and officers (the "Indemnitees") pursuant to which we have agreed to provide for
indemnification, to the fullest extent permitted by law and our By-Laws, against
any and all expenses, judgments, fines, penalties and amounts paid in settlement
arising out of any claim in connection with any event, occurrence or
circumstance related to such individual serving as a director or officer of us.
Such indemnification includes the advance of expenses to the Indemnitees
(including the payment of funds in trust therefor under certain circumstances)
and is subject to there not having been determined that the Indemnitee would not
be permitted to be indemnified under applicable law. The rights of
indemnification are in addition to any other rights which the Indemnitees may
have under our Certificate of Incorporation, By-Laws, the Delaware General
Corporation Law or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
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ITEM 8. EXHIBITS.
The following exhibits are filed herewith.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- --- -----------
<S> <C>
4.1 Form of Common Stock Certificate (Exhibit 4.1 to Registration
Statement on Form S-18, File No. 33-46246-NY)
4.2 Form of Warrant held by Selling Shareholders
5. Opinion of Goldstein & DiGioia, LLP re legality of shares
offered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Goldstein & DiGioia, LLP, contained in Exhibit 5.
</TABLE>
ITEM 9. UNDERTAKINGS
We hereby undertake:
A. (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 thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(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.
(4) (i) For the purpose of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the
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Securities Act shall be deemed to be part of the Registration Statement as of
the time it was declared effective.
(ii) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) For purposes of determining any liability under the Securities Act
of 1933, each filing of our annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 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.
B. 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify that
we have reasonable grounds to believe that we meet all of the requirements for
filing on Form S-8 and have duly caused this Registration Statement to be signed
on our behalf by the undersigned, thereunto duly authorized, in the City of
Albany, New York, on November 15, 1999.
BITWISE DESIGNS, INC.
By: /s/ JOHN T. BOTTI
-----------------------------------
John T. Botti
Chief Executive Officer, Chairman of the
Board and President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below substitutes and appoints John Botti his true and lawful attorney-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be don in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
registration statement has been signed below by the following persons on our
behalf and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ---- ----- ----
<S> <C> <C>
/s/ JOHN T. BOTTI Chairman of the Board, President November 15, 1999
- ----------------- and Chief Executive Officer
John T. Botti
/s/ IRA C. WHITMAN Senior Vice President, Secretary November 15, 1999
- ------------------ and Director
Ira C. Whitman
/s/ STEPHEN A. KRIEGSMAN Director November 15, 1999
- ------------------------
Steven A. Kriegsman
/s/J. EDWARD SHERIDAN Director November 15, 1999
- ---------------------
J. Edward Sheridan
/s/CHARLES C. JOHNSTON Director November 15, 1999
- ----------------------
Charles C. Johnston
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ NICHOLAS T. THEMELIS Director November 15, 1999
- ------------------------
Nicholas T. Themelis
/s/DENNIS H. BUNT Chief Financial Officer and November 15, 1999
- ----------------- Principal Accounting Officer
Dennis H. Bunt
</TABLE>
7
<PAGE> 1
EXHIBIT 4.2
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED AS PROVIDED IN SECTION 2
Warrant No.__ ________, 1998
BITWISE DESIGNS, INC.
COMMON STOCK PURCHASE WARRANT
For good and valuable consideration, the receipt of which is hereby
acknowledged by BITWISE DESIGNS, INC., a Delaware corporation (the "Company"),
______________ is hereby granted the right to purchase, at any time from the
date hereof until 5:00 P.M., New York City time, on _________, 2002, up to
________ paid and non-assessable shares of the Company's Common Stock, $.00l par
value per share ("Common Stock").
This Warrant is exercisable at a per share price of $_____ (the "Exercise
Price") payable in cash or by certified or official bank check in New York
Clearing House funds, subject to adjustment as provided in Section l hereof.
Upon surrender of this Warrant with the annexed Subscription Form duly executed,
together with payment of the Exercise Price for the shares of Common Stock
purchased at the Company's principal executive offices (presently located at
Building 50, Rotterdam Industrial Park, Schenectady, N.Y. 12306) the registered
holder of the Warrant ("holder") shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased.
l. Exercise of Warrant.
1.l The purchase rights represented by this Warrant are exercisable at the
option of the holder hereof, in whole or in part (but not as to fractional
shares of the Common Stock) during any period in which this Warrant may be
exercised as set forth above. In the case of the purchase of less than all the
shares of Common
<PAGE> 2
Stock purchasable under this Warrant, the Company shall cancel this Warrant upon
the surrender thereof and shall execute and deliver a new Warrant of like tenor
for the balance of the shares of Common Stock purchasable hereunder.
l.2 The issuance of certificates for shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the holder hereof
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall be issued in the name of, or in
such names as may be directed by, the holder hereof; provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of such certificate in a name
other than that of the holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
1.3 In case at any time or from time to time the Company shall subdivide as
a whole, split its Common Stock or issue a dividend payable in shares or
otherwise, the number of shares of Common Stock then outstanding into a greater
or lesser number of shares, the Warrant Price then in effect shall be increased
or reduced proportionately, and the number of shares issuable upon exercise of
this Warrant shall accordingly be increased or reduced proportionately.
l.4 In case of any reclassification or change of outstanding shares of
Common Stock issuable upon exercise of this Warrant (other than change in par
value, or from par value to no par value, or from no par value to par value, or
as a result or a subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation (other than a merger in
which the Company is the continuing corporation and which does not result in any
reclassification or change of outstanding shares of Common Stock, other than a
change in number of the shares issuable upon exercise of the Warrant) or in case
of any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, the holder of this Warrant shall
have the right thereafter to exercise this Warrant into the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock of the Company for which the
Warrant might have been exercised immediately prior to such reclassification,
change, consolidation, merger, sale or
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conveyance. The above provisions of this Section l.4 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
1.5 The Company covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issuance
upon exercise of this Warrant as herein provided, such number of shares of
Common Stock as shall then be issuable upon the exercise of this Warrant. The
Company covenants that all shares of Common Stock which shall be so issuable
shall be duly and validly issued and fully-paid and non-assessable.
2. Restrictions on Transfer.
The holder acknowledges that he has been advised by the Company that this
Warrant and the shares of Common Stock (the "Warrant Shares") issuable upon
exercise thereof (collectively the "Securities") have not been registered under
the Securities Act of l933, as amended (the "Securities Act"), that the Warrant
is being issued, and the shares issuable upon exercise of the Warrant will be
issued, on the basis of the statutory exemption provided by section 4(2) of the
Securities Act relating to transactions by an issuer not involving any public
offering, and that the Company's reliance upon this statutory exemption is based
in part upon the representations made by the holder contained herein. The holder
acknowledges that he has been informed by the Company of, or is otherwise
familiar with, the nature of the limitations imposed by the Securities Act and
the rules and regulations thereunder on the transfer of securities. In
particular, the holder agrees that no sale, assignment or transfer of the
Securities shall be valid or effective, and the Company shall not be required to
give any effect to any such sale, assignment or transfer, unless (i) the sale,
assignment or transfer of the Securities is registered under the Securities Act,
and the Company has no obligations or intention to so register the Securities
except as may otherwise be provided herein, or (ii) the Securities are sold,
assigned or transferred in accordance with all the requirements and limitations
of Rule l44 under the Securities Act or such sale, assignment, or transfer is
otherwise exempt from registration under the Securities Act. The holder
represents and warrants that he has acquired this Warrant and will acquire the
Securities for his own account for investment and not with a view to the sale or
distribution thereof or the granting of any participation therein, and that he
has no present intention of distributing or selling to others any of such
interest or granting any participation therein. The holder acknowledges that the
securities shall bear the following legend:
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"These securities have not been registered under the Securities Act of
l933. Such securities may not be sold or offered for sale, transferred,
hypothecated or otherwise assigned in the absence of an effective
registration statement with respect thereto under such Act or an opinion of
counsel to the Company that an exemption from registration for such sale,
offer, transfer, hypothecation or other assignment is available under such
Act."
3. Registration Rights.
3.1 The Company shall advise the holder of this Warrant or of the Warrant
Shares or any then holder of Warrants or Warrant Shares (such persons being
collectively referred to herein as "holders") by written notice at least four
weeks prior to the filing of any registration statement under the Securities Act
of l933 (the "Act") covering securities of the Company, except on Forms S-4 or
S-8, and upon the request of any such holder within ten days after the date of
such invoice, include in any such registration statement such information as may
be required to permit a public offering of the Warrant Shares. The Company shall
supply prospectuses and other documents as the holder may reasonably request in
order to facilitate the public sale or other disposition of the Warrant Shares,
qualify the Warrant Shares for sale in such states as any such holder reasonably
designates and do any and all other acts and things which may be necessary or
desirable to enable such Holders to consummate the public sale or other
disposition of the Warrant Shares, and furnish indemnification in the manner as
set forth in Subsection 3.2 of this Section 3. Such holders shall furnish
information and indemnification as set forth in Subsection 3.2 of this Section
3. For the purpose of the foregoing, inclusion of the Warrant Shares in a
Registration Statement pursuant to this sub-paragraph 3.l under a condition that
the offer and/or sale of such Warrant Shares not commence until a date not to
exceed 90 days from the effective date of such registration statement shall be
deemed to be in compliance with this sub-paragraph 3.l.
3.2 The following provisions of this Section 3 shall also be applicable to
the exercise of the registration rights granted under this Section 3.l:
(A) The foregoing registration rights shall be contingent on the
holders furnishing the Company with such
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appropriate information (relating to the intentions of such holders) as the
Company shall reasonably request in writing. Following the effective date of
such registration, the Company shall upon the request of any owner of Warrants
and/or Warrant Shares forthwith supply such number of prospectuses meeting the
requirements of the Act as shall be requested by such owner to permit such
holder to make a public offering of all Warrant Shares from time to time offered
or sold to such holder, provided that such holder shall from time to time
furnish the Company with such appropriate information (relating to the
intentions of such holder) as the Company shall request in writing. The Company
shall also use its best efforts to qualify the Warrant Shares for sale in such
states as such holder shall reasonably designate.
(B) The Company shall bear the entire cost and expense of any registration
of securities initiated by it under Subsection 3.l of this Section 3
notwithstanding that Warrant Shares subject to this Warrant may be included in
any such registration. Any holder whose Warrant Shares are included in any such
registration statement pursuant to this Section 3 shall, however, bear the fees
of his own counsel and any registration fees, transfer taxes or underwriting
discounts or commissions applicable to the Warrant Shares sold by him pursuant
thereto.
(C) The Company shall indemnify and hold harmless each such holder and each
underwriter, within the meaning of the Act, who may purchase from or sell for
any such holder any Warrant Shares from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
post-effective amendment thereto or any registration statement under the Act or
any prospectus included therein required to be filed or furnished by reason of
this Section 3 or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or alleged untrue statement
or omission or alleged omission based upon information furnished or required to
be furnished in writing to the Company by such holder or underwriter expressly
for use therein, which indemnification shall include each person, if any, who
controls any such underwriter within the meaning of such Act; provided, however,
that the Company shall not be obliged so to indemnify any such holder or
underwriter or controlling person unless such holder or underwriter shall at the
same time agree to indemnify the Company, its directors, each officer signing
the related registration statement and each person, if any, who controls the
Company within the meaning of such Act,
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from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained in
any registration statement or any prospectus required to be filed or furnished
by reason of this Section 3 or caused by any omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or alleged untrue statement or omission based
upon information furnished in writing to the Company by any such holder or
underwriter expressly for use therein.
4. Miscellaneous.
4.l All the covenants and agreements made by the Company in this Warrant
shall bind its successors and assigns.
4.2 No recourse shall be had for any claim based hereon or otherwise in any
manner in respect hereof, against any incorporator, stockholder, officer or
director, past, present or future, of the Company or of any predecessor
corporation, whether by virtue of any constitutional provision or statute or
rule of law, or by the enforcement of any assessment or penalty or in any other
manner, all such liability being expressly waived and released by the acceptance
hereof and as part of the consideration for the issue hereof.
4.3 No course of dealing between the Company and the holder hereof shall
operate as a waiver of any right of any holder hereof, and no delay on the part
of the holder in exercising any right hereunder shall so operate.
4.4 This Warrant may be amended only by a written instrument executed by
the Company and the holder hereof. Any amendment shall be endorsed upon this
Warrant, and all future holders shall be bound thereby.
4.5 All communications provided for herein shall be sent, except as may be
otherwise specifically provided, by registered or certified mail: if to the
holder of this Warrant, to the address shown on the books of the Company; and if
to the Company, to Technology Center, Rotterdam Industrial Park, Schenectady,
N.Y. 12306, attention: Office of the President, or to such other address as the
Company may advise the holder of this Warrant in writing. Notices shall be
deemed given when mailed.
4.6 The provisions of this Warrant shall in all respects be constructed
according to, and the rights and liabilities of the
6
<PAGE> 7
parties hereto shall in all respects be governed by, the laws of the State of
Delaware. This Warrant shall be deemed a contract made under the laws of the
State of Delaware and the validity of this Warrant and all rights and
liabilities hereunder shall be determined under the laws of said State.
4.7 The headings of the Sections of this Warrant are inserted for
convenience only and shall not be deemed to constitute a part of this Warrant.
IN WITNESS WHEREOF, BITWISE DESIGNS, INC. has caused this Warrant to be
executed in its corporate name by its officer, and its seal to be affixed
hereto.
Dated: _________, 1998
Schenectady, N.Y.
BITWISE DESIGNS, INC.
By:
---------------------------------
John T. Botti
Chairman of the Board
7
<PAGE> 8
SUBSCRIPTION FORM
TO: BITWISE DESIGNS, INC.
Technology Center
Rotterdam Industrial Park
Schenectady, NY 12306
The undersigned holder hereby irrevocably elects to exercise the right to
purchase shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes full payment of the Exercise Price of such
shares.
Kindly deliver to the undersigned a certificate representing the Shares.
INSTRUCTIONS FOR DELIVERY
Name:
-----------------------------------------------------------------------
(please typewrite or print in block letters)
Address:
---------------------------------------------------------------------
Dated:
-----------------------------
Signature
--------------------------------------------
8
<PAGE> 1
EXHIBIT 5
LETTERHEAD OF
GOLDSTEIN& DIGIOIA, LLP
369 LEXINGTON AVENUE, 18th FLOOR
NEW YORK, NEW YORK 10017
November 16, 1999
Bitwise Designs, Inc.
2165 Technology Drive
Schenectady, New York 12308
Re: Bitwise Designs, Inc.
Registration Statement on Form S-8
SEC File No.
Ladies/Gentlemen:
We have reviewed the Registration Statement on Form S-8, filed on or about
November 17, 1999, (the "Registration Statement") under the Securities Act of
l933, as amended (the "Act") by First Montauk Financial Corp. (the "Company").
The Registration Statement has been filed for the purpose of registering the
112,000 shares of Common Stock, par value $.001, described therein for offer and
sale under the Act by the Selling Stockholders. All capitalized terms not
defined herein have the meanings ascribed to them in the Registration Statement.
This opinion has been rendered with respect to 112,000 shares of Common
Stock underlying warrants issued to certain former directors of the Company in
connection with a compensation plan between the Company and the former
directors.
In connection with the opinions rendered herein, we have examined the
Certificate of Incorporation as amended of the Company, its By-Laws, and such
other documents, corporate records and questions of law as we have deemed
necessary solely for the purpose of enabling us to render this opinion. On the
basis of such examination, we are of the opinion that:
l. The Company is a corporation duly organized and validly existing and in
good standing under the laws of the State of Delaware, with corporate power to
conduct the business which it conducts as described in the Registration
Statement.
2. The Company has an authorized capitalization of 20,000,000 shares of
Common Stock, par value $.001 per share, and 5,000,000 shares of Preferred
Stock, $.l0 par value per share.
3. The 112,000 shares issuable upon the exercise of the warrants, upon
payment therefor and
<PAGE> 2
issuance thereof, in accordance with the terms thereof, and as described in the
Registration Statement, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goldstein & DiGioia LLP
GOLDSTEIN & DiGIOIA LLP
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
- ----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 23, 1999 except for Note 5 and
Note 18, for which the date is October 4, 1999, relating to the financial
statements, which appears in the 1999 Annual Report to Shareholders of Bitwise
Designs, Inc., which is incorporated by reference in Bitwise Designs, Inc.'s
Annual Report on Form 10-K for the year ended June 30, 1999. We also consent to
the incorporation by reference of our report dated August 23, 1999 except for
Note 5 and Note 18, for which the date is October 4, 1999, relating to the
financial statement schedules, which appears in such Annual Report on Form
10-K.
/s/ Pricewaterhousecoopers LLP
Pricewaterhousecoopers LLP
Albany, New York
November 19, 1999
