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ANNEX H
EXHIBIT 10.24
CONVERSION AGENCY AGREEMENT
This agreement is entered into effective as of August 8, 1997, between BITWISE
DESIGNS, INC., a Delaware corporation with principal offices at Xxxxxxxx 00,
Xxxxxxxxx Industrial Park, Duanesburg Rd., Xxxxx 0, Xxxxxxxxxxx X.X. 00000,
Xxxxxx Xxxxxx of America (the "Company") of the first part and BANCA DEL
GOTTARDO, a Swiss corporation with principal offices at Xxxxx Xxxxxxx Xxxxxxxxx
0, 0000 Xxxxxx, Xxxxxxxxxxx ("Banca del Gottardo") of the second part.
As authorized by its Board of Directors on July 23, 1997 and pursuant to a Note
and Warrant Purchase, Paying and Conversion/Exercise Agency Agreement dated
August 8, 1997 (the "Agreement"), the Company proposes to make an offer on the
Swiss capital market for the sale of its convertible notes (the "Convertible
Notes") and Warrants The Convertible Notes will be convertible into freely
transferable and non-restricted shares (the "Shares") of the Common Stock of the
Company (the "Common Stock"), on the terms and conditions provided hereafter The
Board of Directors of the Company has approved this agreement as regards the
conversion of the Notes and has authorized the conversion of the Convertible
Notes into the Common Stock of the Company on the terms and conditions hereof.
Article I Conversion Agent
1.1. The Company hereby appoints Banca del Gottardo, acting through its
specified office in Switzerland, as sole Conversion Agent (the "Conversion
Agent") for the conversion of Notes or coupons into Shares in accordance with
the provisions for conversion set forth in Exhibit I hereto (the "Conversion
Provisions") which constitutes an integral part of this agreement.
1.2. So long as any Notes are outstanding, the Company shall maintain a stock
transfer agent (the "Stock Transfer Agent") or shall itself perform the
functions required of such agent under this agreement.
1.3. The appointment of the Conversion Agent hereunder shall
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continue in effect until the conversion right in respect of the Convertible
Notes shall have terminated. So long as Banca del Gottardo satisfactorily
performs its obligations hereunder the Company shall not without the consent of
Banca del Gottardo appoint any other Conversion Agent or pay any other bank any
commission or remuneration for the conversion of the Convertible Notes or
coupons. The Company may at any time send a representative to count the
securities before they are delivered to investors.
Article 2 Commissions
2.1. In consideration for the services rendered by the Conversion Agent in
connection with the conversion of the Convertible Notes and coupons, the Company
undertakes to pay upon demand to the Conversion Agent in US Dollars a commission
of 0.25 per cent of the principal amount of each Note converted however at least
USD 50.-- per conversion of a Convertible Note in a principal amount of USD
5'000.-- together with reasonable out-of-pocket expenses (e.g. telex, cable,
postage, telephone, legal and insurance expenses if any) incurred by the
Conversion Agent in connection with its services hereunder.
2.2. Neither Banca del Gottardo nor the Noteholders shall have any obligation to
pay to the Stock Transfer Agent any commission, tees, costs or charges in
connection with the conversion of Convertible Notes or coupons and the making
available of the respective Shares as provided hereafter.
Article 3 Indemnification
The Company will indemnify and hold harmless the Conversion Agent against any
losses, liabilities, costs claims actions or demands which it may incur or which
may be made against it as a result of or in connection with its appointment or
the exercise of its powers and duties under this Agreement other than those
based upon or arising out of the negligence of willful misconduct on the part of
the Conversion Agent or any of its employees.
Article 4 Conversion of Convertible Notes and Coupons
Each Convertible Note and all unmatured coupons attached thereto, submitted for
conversion to the Conversion Agent (a "Converted Note") shall be imprinted or
stamped for cancellation by the Conversion Agent with a legend to the effect
that such Convertible Note or coupon has been converted. All cancelled Converted
Notes and coupons shall be held by Banca del Gottardo for the account of the
Company. Banca del Gottardo shall maintain a record of Convertible Notes and
coupons converted.
Article 5 Notices
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All notices required under this Agreement shall be deemed to have been duly
given if sent by cable telex or facsimile transmission (confirmed in writing,
sent by registered airmail) to the following addresses:
If to the Company:
BITWISE DESIGNS, INC.
Xxxxxxxx 00, Xxxxxxxxx Xxxxxxxxxx Xxxx
Duanesburg Rd. Route 7
Schenectady, N.Y. 00000
X.X.X.
Attention: Chief Financial Officer
Facsimile: (000)000-0000
If to the Conversion Agent:
BANCA DEL GOTTARDO
Xxxxx Xxxxxxx Xxxxxxxxx 0
0000 Xxxxxx, Xxxxxxxxxxx
Attention: New Issue Department
Telex: 841 052
Facsimile: 0114191 808 18 43
or to such other address as at the party receiving the notice shall have
notified to the other party in writing. Such cable. telex or facsimile
transmission notice shall be deemed to have been duly given at the time of
dispatch. Any party receiving a notice by cable, telex or facsimile transmission
will be protected by relying upon the cabled, telexed or transmitted notice even
though such notice is not subsequently confirmed in writing.
Article 6 Governing Law
6.1. This agreement shall be governed by and construed in accordance with Swiss
law, except as to matters regarding conversion of the Notes into Common Stock of
the Company, which shall be governed by and construed in accordance with the
laws of Delaware. Any action or proceedings against the Company relating to this
agreement or the Convertible Notes or coupons may be brought and enforced in the
ordinary courts of the Canton of Ticino, venue being in the City of Lugano, and
the Company hereby irrevocably submits to such courts in respect of any such
action or proceeding with the right to appeal, as provided by law, to the Swiss
Federal Court in Lausanne, the judgment of which shall be final. Solely for that
purpose and for the purpose of execution in Switzerland, the Company hereby
elects legal and special domicile at the office of Banca del Gottardo. Xxxxx
Xxxxxxx Xxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx.
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Banca del Gottardo shall notify the Company promptly upon receipt of any notice
by it in its capacity as the Company's agent for service of process.
6.2. The Conversion Agent shall also have the right to bring any legal action or
proceeding hereunder against the Company in any state or federal court in the
United States of America which may have jurisdiction.
Article 7 Counterparts
This agreement may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the Company and Banca del Gottardo have caused this
agreement to be signed and acknowledged by their officers authorized to do so,
as of August 8, 1997.
BITWISE DESIGNS, INC.
By: _________________________
BANCA DEL GOTTARDO
By: __________________________
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