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EXHIBIT 6.24
NEUTRAL POSTURE ERGONOMICS, INC.
WARRANT AGREEMENT
October ___, 1997
Huberman Financial, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Gentlemen:
Neutral Posture Ergonomics, Inc., a Texas corporation (the "Company"),
hereby agrees to issue and sell to you, and you hereby agree to purchase from
the Company at a purchase price of $10.00, a stock purchase warrant entitling
the holder to purchase 133,400 shares of Common Stock, to be evidenced by an
instrument in the form attached hereto as Exhibit A (hereinafter referred to as
the "Warrant," and the Warrant and all instruments hereafter issued in
replacement, substitution, combination or subdivision thereof being hereinafter
collectively referred to as the "Warrants"). The number of shares of Common
Stock purchasable upon exercise of the Warrants is subject to adjustment as
provided in Section 7 below. The Warrants will be exercisable by you or any
other Warrantholder as to all or any lesser number of shares of Common Stock
covered thereby at the per share Purchase Price (as defined below) at any time
and from time to time during a four-year period commencing at 9:00 a.m., Dallas
time, on that date which is one year after the date hereof and ending at 5:00
p.m., Dallas time, on the fifth anniversary of the date hereof (the "Term").
The purchase and sale of the Warrant shall take place at such time and
place as you and the Company mutually agree, at which time you shall deliver a
check for the full purchase price of the Warrant. At such time, the Company
will deliver to you such certificates of its officers with respect to this
Warrant Agreement and the Warrant as you may reasonably request.
1. Definitions.
As used herein the following terms, unless the context otherwise
requires, shall have for all purposes hereof the following respective meanings:
(a) Common Stock. The term "Common Stock" refers to the common
stock, par value of $0.01 per share, of the Company and all other securities of
any class or classes (however designated) of the Company, now or hereafter
authorized, the holders of which shall have the right, without limitation as to
amount, either to all or to a part of the balance of current dividends and
liquidating dividends after the payment of dividends and distributions on any
shares entitled to preference, and the holders of which shall ordinarily in the
absence of contingency be entitled to vote generally in an election of
directors of the Company (even though the right so to vote has been suspended
by the occurrence of a contingency).
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(b) Other Securities. The term "Other Securities" refers to any
stock (other than Common Stock) and other securities of the Company or any
other person (corporate or otherwise) which the holders of the Warrants at any
time shall be entitled to receive, or shall have received, upon the exercise of
the Warrants, in lieu of or in addition to Common Stock, or which at any time
shall be issuable or shall have been issued in exchange for or in replacement
of Common Stock or Other Securities pursuant to Section 7 below or otherwise.
(c) Purchase Price. The term "Purchase Price" refers to the per
share purchase price of the shares of the Underlying Common Stock subject to
this Warrant Agreement and the Warrants, as set forth in the form of Warrant
attached hereto as Exhibit A, as adjusted pursuant to Section 7 below.
(d) Act. The term "Act" refers to the Securities Act of 1933, as
amended from time to time.
(e) Commission. The term "Commission" refers to the Securities and
Exchange Commission.
(f) Underlying Common Stock. The term "Underlying Common Stock"
refers to the shares of Common Stock (or Other Securities) issuable under this
Warrant Agreement and the Warrants pursuant to the exercise, in whole or in
part, of the Warrants.
(g) Warrantholder. The term "Warrantholder" refers to Huberman
Financial, Inc. and any transferee or transferees of Huberman Financial, Inc.
permitted under Section 3(a) below.
2. Representations and Warranties.
The Company represents and warrants to you as follows:
(a) Incorporation; Qualification. The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Texas, with requisite power and authority (corporate
and other) to own its properties and conduct its business as currently
conducted, and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions, if any, in which it
owns or leases properties or in which the conduct of its business requires such
qualification.
(b) Corporate and Other Action. The Company has all requisite power
and authority (corporate and other), and has taken all necessary corporate
action, to authorize, execute, deliver and perform this Warrant Agreement, to
execute, issue, sell and deliver the Warrants and a certificate or certificates
evidencing the Warrants, to authorize and reserve for issuance and, upon
payment from time to time of the Purchase Price, to issue, sell and deliver,
the shares of the Underlying Common Stock issuable upon exercise of the
Warrants, and to perform all of its obligations under this Warrant Agreement
and the Warrants. This Warrant Agreement has been duly executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except to the extent enforceability
may be
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limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights generally and by general principles of equity. No
authorization, approval, consent or other order of any governmental authority
is required for such authorization, issue or sale except to the extent required
by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and applicable
federal and state securities laws.
(c) No Violation. The execution and delivery of this Warrant
Agreement, the consummation of the transactions herein contemplated and the
compliance with the terms and provisions of this Warrant Agreement and of the
Warrants will not conflict with, or result in a breach of, or constitute a
default or an event permitting acceleration under, any statute, the Articles of
Incorporation or Bylaws of the Company or any indenture, mortgage, deed of
trust, note, bank loan, credit agreement or any material franchise, license,
lease, permit, or any other material agreement, understanding or instrument, or
any judgment, decree, order, statute, rule or regulation to which the Company
is a party or by which it is bound.
(d) Validity. The Warrant, when delivered to you, will be duly
authorized, executed and delivered and will be a legal, valid and binding
obligation of the Company enforceable in accordance with its terms, except to
the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights generally
and by general principles of equity. The shares of Underlying Common Stock of
the Company, when issued upon exercise of the Warrants, will have been duly
authorized for issuance and, when issued in accordance with the terms of this
Warrant Agreement, will be validly issued and outstanding, fully paid and
nonassessable and free of statutory preemptive rights.
3. Representations of Warrantholders. You represent and warrant to the
Company that you are an "accredited investor" within the meaning of Regulation
D under the Act and that the Warrant and the shares of Underlying Common Stock
are being acquired for investment purposes only and not with a view to the
distribution or resale thereof. You represent that the Company has informed
you that neither this Warrant nor the securities which may be purchased
pursuant to this Warrant have been registered with or approved by the
Commission under the Act or the securities laws of any state and may not be
sold or transferred in the absence of an effective registration statement or an
exemption from such registration requirements. You agree that, during the one-
year period commencing on the date hereof, the Warrant will not be transferred,
sold, assigned or hypothecated, except to (i) persons who are officers or
directors of you; (ii) the respective successors to you in a merger or
consolidation; (iii) the respective purchasers of all or substantially all of
your assets; or (iv) your respective shareholders only in the event you are
liquidated or dissolved. You agree not to make any sale or other disposition
of either the Warrant or the Underlying Common Stock or Other Securities except
pursuant to a registration statement which has become effective under the Act,
setting forth the terms of such offering, the underwriting discount and the
commissions and any other pertinent data with respect thereto, unless you have
provided the Company with an opinion of counsel reasonably acceptable to the
Company that such registration is not required.
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4. Registration.
(a) Piggyback Registrations. If at any time after the first
anniversary of the date of this Warrant Agreement and prior to the fifth
anniversary hereof the Company proposes to register (including for this purpose
a registration effected by the Company for shareholders of the Company other
than the Warrantholders or the holders of Underlying Common Stock (you and any
person who acquires Warrants or Underlying Common Stock in accordance with
Section 3 are collectively referred to in this Section 4 as the "Holders")) any
shares of Common Stock or Other Securities under the Act for sale within such
four-year period (other than registration for issuance or sale in connection
with (i) employee or non-employee director compensation or benefit programs,
(ii) an exchange offer or an offering of securities solely to the existing
shareholders or employees of the Company, (iii) an acquisition, merger or other
business combination using a registration statement on Form S-4 or any
successor or other appropriate or similar form), (iv) a registration statement
on Form S-8 or similar form or (v) a shelf registration pursuant to Rule 415
promulgated under the Act) (each such registration with respect to which
registration rights shall apply being an "Applicable Registration"), the
Company will give prompt written notice (which, in any event, shall be given no
less than 30 days prior to the filing of a registration statement with respect
to such offering) to the Holders of its intention so to do and, upon the
written request of any Holder sent within 20 days after receipt of any such
notice, the Company will use its best efforts to cause all Underlying Common
Stock as to which any such Holder shall have so requested registration to be
registered under the Act, all to the extent necessary to permit the sale in
such offering of the Underlying Common Stock so registered on behalf of any
such Holder in the same manner as the Company (or shareholder other than the
Holders, as the case may be) proposes to offer its shares of Common Stock or
Other Securities. The Company shall use commercially reasonable efforts to
cause the managing underwriter or underwriters of an Applicable Registration
that is a proposed underwritten offering to permit the Underlying Common Stock
so requested by any Holder to be included in the registration for such offering
on the same terms and conditions as the shares of Common Stock or Other
Securities of the Company (or other shareholders if no shares are to be offered
on behalf of the Company) included therein. Notwithstanding the foregoing, if
the managing underwriter of such offering delivers a letter to the Company and
the Holders requesting registration that the total number of shares of Common
Stock or Other Securities which such Holders or the Company, and any other
person, intend to include in such offering will in the good faith opinion of
such managing underwriter materially and adversely affect the success of such
offering, then the number of shares of Underlying Common Stock to be offered
for the account of the Holders and the shares of Common Stock or Other
Securities to be offered for the account of such other shareholder, if any,
shall be reduced pro rata based upon the number of shares of Common Stock
proposed to be sold by the Holders and other persons to the extent necessary to
reduce the total number of shares of Common Stock or Other Securities to be
included in such offering to the number of shares recommended by such managing
underwriter.
(b) Demand Registration. At any time after the first anniversary of
the date of this Warrant Agreement and prior to the fifth anniversary hereof
the Holders of not less than 50% of the Underlying Common Stock not theretofore
registered under the Act pursuant to Section 4(a) hereof may make one demand
(the "Demand Registration") for the Company to register such
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Underlying Common Stock under the Act. The Company shall promptly give notice
of the proposed Demand Registration to all Holders (other than Holders whose
Underlying Common Stock was theretofore registered under the Act), and all such
notified Holders shall thereafter have 20 days after the giving of such notice
by the Company to notify the Company if such Holders desire to participate in
the proposed Demand Registration. The Company shall thereafter promptly
proceed with the registration of all Underlying Common Stock to be included in
the proposed Demand Registration in accordance with the registration procedures
set forth in Section 4(c) hereof; provided, however, (i) no such registration
shall be deemed a Demand Registration unless and until the applicable
registration statement becomes effective; (ii) the Company shall have no
obligation to file a shelf registration statement under Rule 415 promulgated
under the Act; and (iii) the Company may delay the filing of a requested Demand
Registration for up to 90 days if, in the good faith judgment of the Company's
Board of Directors after consultation with legal counsel, such delay is
necessary in order to avoid interference with a pending material transaction or
other corporate event to which the Company is a party or by which it is
directly affected. The Warrantholders shall collectively only be entitled to
one Demand Registration.
(c) Company's Obligations in Registration. In the event you timely
elect to participate in an offering by including shares of Underlying Common
Stock under a registration statement pursuant to Section 4(a) above, or if you
make or timely elect to participate in a Demand Registration pursuant to
Section 4(b) above, the Company shall:
(i) notify you as to the filing of any registration statement
or prospectus and of all amendments or supplements thereto filed prior
to the effective date of such registration statement and of all post-
effective amendments or supplements thereto;
(ii) comply in all material respects with all applicable rules
and regulations of the Commission;
(iii) notify you immediately, and confirm the notice in writing,
(1) when the registration statement becomes effective, (2) of the
issuance by the Commission of any stop order or of the initiation, or
the threatening, of any proceedings for that purpose, (3) of the receipt
by the Company of any notification with respect to the suspension of
qualification of the Underlying Common Stock for sale in any
jurisdiction or of the initiation, or the threatening, of any
proceedings for that purpose, and (4) of the receipt of any comments, or
requests for additional information, from the Commission or any state
regulatory authority. If the Commission or any state regulatory
authority shall enter a stop order or order suspending qualification at
any time, the Company will use all commercially reasonable efforts to
obtain the lifting of such order at the earliest possible moment;
(iv) during any time when a prospectus is required to be
delivered under the Act during the period required for the distribution
of the Underlying Common Stock, use its best efforts to comply with all
requirements imposed upon it under the Act and the rules and regulations
promulgated thereunder, so far as necessary to permit the continuance of
sales of or dealings in the Underlying Common Stock pursuant to a
prospectus complying
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with Section 10(a)(3) of the Act. If at any time when a prospectus
relating to the Underlying Common Stock is required to be delivered
under the Act and any event shall have occurred as a result of which, in
the opinion of counsel for the Company or your counsel, the prospectus
relating to the Underlying Common Stock as then amended or supplemented
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
such prospectus to comply with the Act and the rules and regulations of
the Commission promulgated thereunder, the Company will promptly prepare
and file with the Commission an appropriate amendment or supplement in
form satisfactory to you and your counsel;
(v) use all commercially reasonable efforts, in cooperation
with you, at or prior to the time the registration statement becomes
effective, to register or qualify the Underlying Common Stock for
offering and sale under the securities laws relating to the offering or
sale of the Underlying Common Stock in such jurisdictions as you may
reasonably designate and to continue the qualifications in effect so
long as required for purposes of the sale of the Underlying Common
Stock; provided, however, that no such qualification shall be required
in any jurisdiction where, as a result thereof, the Company would be
subject to service of process for all purposes. In each jurisdiction
where such qualification shall be effected, the Company will, unless you
agree that such action is not at the time necessary or advisable, file
and make such statements or reports at such times as are or may
reasonably be required by the laws of such jurisdiction;
(vi) make generally available to its security holders as soon
as practicable an earnings statement which shall satisfy the provisions
of Section 11(a) of the Act and any applicable rules and regulations of
the Commission thereunder covering a period of at least 12 months
beginning after the effective date of the registration statement;
(vii) use the Company's best efforts to cause the independent
certified public accountants of the Company to deliver to you, and to
the underwriters if the Underlying Common Stock is being sold through
underwriters, letters dated the date that the registration statement
becomes effective and the date the Underlying Common Stock is delivered
to the underwriters for sale pursuant to such registration or, if the
Underlying Common Stock is not being sold through underwriters, on the
date that the registration statement becomes effective, stating that
they are independent certified public accountants within the meaning of
the Act and the rules and regulations of the Commission thereunder, and
that, in their opinion, the financial statements and other financial
data of the Company included in the registration statement or
prospectus, or any amendment or supplement thereto, comply as to form in
all material respects with the applicable accounting requirements of the
Act, and such other financial and accounting matters as the
underwriters, if any, or you may reasonably request;
(viii) after the effective date of such registration statement,
prepare, and promptly notify you of the proposed filing of, and promptly
file with the Commission, each and
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every amendment or supplement thereto or to any prospectus forming a
part thereof as may be necessary to make any statements therein not
misleading in any material respect; provided, however, that no such
amendment or supplement shall be filed if you shall advise the Company
in writing that, in your reasonable opinion, such amendment or
supplement does not comply with the Act;
(ix) furnish to you, as soon as available, copies of any such
registration statement and each preliminary or final prospectus, or
supplement or amendment prepared pursuant thereto, all in such
quantities as you may from time to time reasonably request in order to
facilitate the public sale or other disposition of the Underlying Common
Stock; and
(x) make such representations and warranties to any
underwriter of the Underlying Common Stock and to the holders thereof,
and use the Company's commercially reasonable efforts to cause the
Company's legal counsel to render, at the time or times of the letters
referred to in subparagraph (vii) above, such opinions to such
underwriters, if any, and to you, as such underwriters or you may
reasonably request.
(d) Agreements by Warrantholder. In connection with the filing of a
registration statement pursuant to this Section 4, if Underlying Common Stock
is being registered on your behalf under the Act, you shall:
(i) furnish the Company all material information requested by
the Company concerning yourself and your holdings of securities of the
Company and the proposed method of sale or other disposition of the
Underlying Common Stock and such other information and undertakings as
shall be reasonably required in connection with the preparation and
filing of any such registration statement covering all or part of the
Underlying Common Stock and in order to ensure full compliance with the
Act and the rules and regulations of the Commission promulgated
thereunder;
(ii) if in connection with a piggyback registration pursuant to
Section 4(a) the Company is at the time entering into an underwriting
agreement covering its Common Stock, enter into an underwriting
agreement in customary form with the same underwriter or underwriters
who are parties to such underwriting agreement with the Company,
provided that the sales of Common Stock by you and the Company
thereunder are at the same price and upon the same terms and conditions;
and
(iii) cooperate in good faith with the Company and its
underwriters, if any, in connection with such registration, including
placing the shares of Underlying Common Stock to be included in such
registration statement in escrow or custody to facilitate the sale and
distribution thereof.
(e) Expenses of Registration. All expenses incurred in connection
with a registration, filing or qualification pursuant to this Section 4,
including, without limitation, registration, filing and qualification fees,
printers' and accounting fees, and the fees and disbursements of counsel
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for the Company, shall be borne and paid by the Company, with the
exception of fees and disbursements of any separate counsel to the
Holders, which shall be borne by the Holders. In addition, the Holders
whose shares of Underlying Common Stock are so registered shall bear and
pay all underwriting discounts and selling commissions attributable to
sales of such shares of Underlying Common Stock.
(f) Indemnification.
(i) The Company shall indemnify and hold harmless you and any
underwriter (as defined in the Act) for you, and each person, if any,
who controls you or such underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), against any loss, liability, claim, damage
and expense whatsoever (including but not limited to any and all expense
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever), joint or
several, to which any of you or such underwriter or such controlling
person becomes subject, under the Act or otherwise, insofar as such
loss, liability, claim, damage or expense (or actions in respect
thereof) arise out of or are based upon (1) any untrue statement or
alleged untrue statement of any material fact contained in (A) a
registration statement covering the Underlying Common Stock, in the
prospectus contained therein, or in an amendment or supplement thereto
or, (B) in any application or other document or communication (in this
Section 4(f) collectively called an "application") executed by or on
behalf of the Company or based upon written information furnished by or
on behalf of the Company and filed in any jurisdiction in order to
qualify the Underlying Common Stock under the securities laws thereof or
filed with the Commission, or (2) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company shall not be obligated to indemnify you in any such case to the
extent that any such loss, claim, damage, expense or liability arises
out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon, and in conformity
with, written information duly executed and furnished by you or such
underwriter or such controlling person specifically for use in any such
registration statement or prospectus, or any amendment or supplement
thereto, or any application, as the case may be.
If any action is brought against a person in respect of which
indemnity may be sought against the Company pursuant to the foregoing
paragraph, such person shall promptly notify the Company in writing of
the institution of such action and the Company shall assume the defense
of the action, including the employment of counsel (satisfactory to the
indemnified person in its or his reasonable judgment) and payment of
expenses. The indemnified person shall have the right to employ its or
his own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified person unless the
employment of such counsel shall have been authorized in writing by the
Company in connection with the defense of the action, or unless the
Company shall not have promptly employed counsel to have charge of the
defense of the action or unless the
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indemnified person shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional
to those available to the Company (in which case the Company shall not
have the right to direct the defense of the action on behalf of the
indemnified person), in any of which events these fees and expenses
shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any
settlement of any claim or action effected without its written consent,
which shall not be unreasonably withheld.
The Company's indemnity agreements contained in this Section 4(f)
shall remain in full force and effect regardless of any investigation
made by or on behalf of any indemnified person and shall survive any
termination of this Warrant Agreement. The Company agrees promptly to
notify you of the commencement of any litigation or proceedings against
the Company or any of its officers or directors in connection with the
registration statement pursuant to this Section 4(f). The omission to
notify you promptly of the commencement of any action against the
Company or its officers and directors based upon an alleged act or
omission, which, if proven, would result in your having to indemnify the
Company pursuant to Section 4(f)(ii) below, if prejudicial to your
ability to defend such action, shall relieve you of any liability to
indemnify the Company under Section 4(f)(ii).
The Company further agrees that, if the indemnity provisions of
the foregoing paragraphs are held to be unenforceable, you, your
underwriter or any person controlling you or your underwriter ("your
controlling persons") may recover contribution from the Company in an
amount which, when added to contributions you or your underwriter or
your controlling persons have theretofore received or concurrently
receive from officers and directors of the Company or controlling
persons of the Company, will reimburse you or your underwriter or your
controlling persons for all losses, claims, damages or liabilities and
legal or other expenses; provided, however, that if the full amount of
the contribution specified in this paragraph is not permitted by law,
then you, your underwriter and your controlling persons shall be
entitled to contribution from the Company and its officers, directors
and controlling persons to the full extent permitted by law.
(ii) If you choose to include all or a part of the Underlying
Common Stock in a public offering pursuant to Section 4(a), or if you
include Underlying Common Stock in a Demand Registration pursuant to
Section 4(b), then you agree to indemnify and hold harmless the Company
and each of its directors and officers who have signed any such
registration statement or amendment thereto, and (in the case of a
piggyback registration pursuant to Section 4(a) hereof) any underwriter
for the Company (as defined in the Act), and each person, if any, who
controls the Company or such underwriter within the meaning of the Act,
to the same extent as the indemnity by the Company in this Section 4(f),
but only with respect to untrue or alleged untrue statements or
omissions or alleged omissions, if any, made in such registration
statement, in any prospectus contained therein, or in any amendment or
supplement thereto, or in any application, made or omitted in reliance
upon, and in conformity with, written information duly executed and
furnished
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by you to the Company specifically for use in the registration
statement, the prospectus contained therein, any amendment or supplement
thereto, or any application, as the case may be. In case any action
shall be brought in respect of which indemnity may be sought against
you, you shall have the rights and duties given to the Company, and the
persons so indemnified shall have the rights and duties given to you, by
the provisions of Section 4(f)(i).
(g) Certain Definitions. Unless the context otherwise requires,
references in this Section 4 to "you" or "your" shall mean and include a
Warrantholder or a holder of Underlying Common Stock, as the case may be.
(h) Limitations on Subsequent Registration Rights. From and after
the date of this Warrant Agreement, the Company shall not, without your prior
written consent, enter into any agreement with any holder or prospective holder
of any securities of the Company which grants registration rights under the Act
on terms and conditions more favorable than the rights granted in this Warrant
Agreement unless substantially similar rights are granted to the
Warrantholders. Except as listed on Schedule 4(h) to this Warrant Agreement,
the Company is not a party to any currently subsisting agreement with respect
to its securities granting any registration rights to any person.
(i) Benefit of Registration Rights. The right to cause the Company
to register shares of Underlying Common Stock pursuant to Sections 4(a) and (b)
shall inure to the benefit of each person that is now or may hereafter become a
Holder.
5. Exercise of Warrants; Partial Exercise.
(a) Exercise in Full. Each of the Warrants may be exercised in full
by the holder thereof during the Term hereof by surrender of such Warrant, with
the form of subscription at the end thereof duly executed by such
Warrantholder, to the Company at its principal office at 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxx, Xxxxx 00000, accompanied by payment, in cash or by certified or
bank cashier's check payable to the order of the Company, in the amount
obtained by multiplying the number of shares of the Underlying Common Stock
represented by such Warrant or Warrants by the Purchase Price (after giving
effect to any adjustments as provided in Section 7 below). If this Warrant is
not exercised prior to expiration of its Term, it shall become null and void
and all rights granted hereunder shall cease.
(b) Partial Exercise. Each of the Warrants may be exercised in part
by the holder thereof during the Term hereof by surrender of such Warrant, with
the form of subscription at the end thereof duly executed by such
Warrantholder, in the manner and at the place provided in Section 5(a) above,
accompanied by payment in cash or by certified or bank cashier's check payable
to the order of the Company, in the amount obtained by multiplying the number
of shares of the Underlying Common Stock designated by the Warrantholder in the
form of subscription attached to such Warrant by the Purchase Price (after
giving effect to any adjustments as provided in Section 7 below). Upon any
such partial exercise, the Company at its expense (except as set forth below)
will, upon surrender of the relevant Warrant, forthwith issue and deliver to or
upon
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the order of the Warrantholder stock certificates representing the Common Stock
issuable upon such partial exercise and a new Warrant of like tenor, in the
name of the Warrantholder thereof or such other person as the Warrantholder
(upon payment by such Warrantholder of any applicable transfer or similar
taxes) may request, subject to Section 3, giving the Warrantholder or such
other person, as the case may be, the right to purchase that number of shares
of the Underlying Common Stock (as such number may be adjusted from time to
time pursuant to Section 7) equal to the number of such shares called for on
the face of the Warrant so surrendered (after giving effect to any adjustment
herein as provided in Section 7 below) minus the number of such shares
designated by the Warrantholder in the aforementioned form of subscription.
(c) Company to Reaffirm Obligations. The Company will, at the time
of any exercise of any Warrant, upon the request of the holder thereof,
acknowledge in writing its continuing obligation to afford to such
Warrantholder any rights (including without limitation any right to
registration under the Act and state securities laws of the shares of the
Underlying Common Stock issuable or issued upon such exercise) to which such
Warrantholder shall continue to be entitled after such exercise in accordance
with the provisions of this Warrant Agreement; provided, however, that if the
Warrantholder shall fail to make any such request, such failure shall not
affect the continuing obligation of the Company to afford to such Warrantholder
any such rights.
6. Delivery of Stock Certificates, etc., on Exercise.
Any exercise of Warrants pursuant to Section 5 shall be deemed to have
been effected immediately prior to the close of business on the date on which
the Warrants with the subscription form and the check for the aggregate
Purchase Price shall have been received by the Company. At such time, the
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such exercise shall be deemed to
have become the holder or holders of record of the shares of Common Stock so
purchased. As soon as practicable after the exercise of any Warrant in full or
in part, and in any event within ten days thereafter, the Company at its
expense (including the payment by it of any applicable issue taxes) will cause
to be issued in the name of, and delivered to, the purchasing Warrantholder, a
certificate or certificates for the number of fully paid and nonassessable
shares of the Underlying Common Stock to which such Warrantholder shall be
entitled upon such exercise, plus cash in lieu of any fractional share to which
such Warrantholder would otherwise be entitled in an amount determined pursuant
to Section 8(h), together with any other stock or other securities and property
(including cash, where applicable) to which such holder is entitled upon such
exercise pursuant to Section 7 below or otherwise.
7. Anti-dilution Provisions.
The Warrants are subject to the following terms and conditions during
the term thereof:
(a) Stock Distributions, Splits and Combinations; Adjustments. In
case (i) the outstanding shares of Common Stock (or Other Securities) shall be
subdivided into a greater number of shares, (ii) a dividend in Common Stock (or
Other Securities) shall be paid in respect of Common Stock (or Other
Securities) or (iii) the outstanding shares of Common Stock (or Other
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Securities) shall be combined into a smaller number of shares, then the
Purchase Price in effect immediately prior to such subdivision or combination
or at the record date of such a dividend or distribution shall simultaneously
with the effectiveness of such subdivision or combination or immediately after
the record date of such dividend or distribution shall be adjusted to equal the
product obtained by multiplying the Purchase Price by a fraction, the numerator
of which is that number of shares of Common Stock (or Other Securities)
outstanding immediately prior to such combination or subdivision, or dividend
or distribution record date, and the denominator of which is that number of
shares of Common Stock (or Other Securities) outstanding after giving effect to
such combination, subdivision, dividend or distribution. Any dividend or
distribution paid or distributed on the Common Stock (or Other Securities) in
stock or any other securities convertible into or exercisable for shares of
Common Stock (or Other Securities) shall be treated as a dividend paid in
Common Stock (or Other Securities) to the extent that shares of Common Stock
(or Other Securities) are issuable upon the conversion or exercise thereof.
Whenever the Purchase Price is adjusted as provided in the immediately
preceding paragraph, the number of shares of the Underlying Common Stock
purchasable upon exercise of the Warrants immediately prior to such Purchase
Price adjustment shall be adjusted, effective simultaneously with such Purchase
Price adjustment, to equal the product obtained (calculated to the nearest full
share) by multiplying such number of shares of the Underlying Common Stock by a
fraction, the numerator of which is the Purchase Price in effect immediately
prior to such Purchase Price adjustment and the denominator of which is the
Purchase Price in effect upon such Purchase Price adjustment, which adjusted
number of shares of the Underlying Common Stock shall thereupon be purchasable
upon exercise of the Warrants until further adjusted as provided herein.
(b) Reorganizations and Recapitalizations. In case the Company shall
be reorganized or recapitalized by reclassifying its outstanding Common Stock
(or Other Securities) into a stock with a different par value or by changing
its outstanding Other Securities with par value to stock without par value,
then, as a condition of such reorganization or recapitalization, as the case
may be, lawful and adequate provision shall be made whereby each Warrantholder
shall thereafter have the right to purchase, upon the terms and conditions
specified herein, in lieu of the shares of Common Stock (or Other Securities)
or assets theretofore purchasable upon the exercise of the Warrants, the kind
and amount of shares of stock, other securities or assets receivable upon such
reorganization or recapitalization by a holder of the number of shares of
Common Stock (or Other Securities) which the Warrantholder might have purchased
immediately prior to such recapitalization. If any consolidation or merger of
the Company with another corporation, or the sale of all or substantially all
of its assets to another corporation, shall be effected in such a way that
holders of Common Stock (or Other Securities) shall be entitled to receive
stock, securities or assets with respect to or in exchange for Common Stock (or
Other Securities), then, as a condition of such consolidation, merger or sale,
lawful and adequate provisions shall be made whereby the Warrantholders shall
have the right to purchase and receive in lieu of the shares of the Underlying
Common Stock immediately theretofore purchasable and receivable upon the
exercise of the Warrants, the number or amount, as the case may be, of such
shares of stock, securities or assets as may be issuable or payable in respect
of or in exchange for the number of shares of Underlying Common Stock
purchasable and receivable upon the exercise of the Warrants
-12-
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had such consolidation, merger or sale not occurred; and in any such case
appropriate provision shall be made with respect to the rights and interests of
the Warrantholders hereunder so that the provisions hereof (including without
limitation provisions for adjustment of the Purchase Price and of the number of
shares purchasable and receivable upon the exercise of the Warrants) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
such stock or securities, or such assets thereafter deliverable upon the
exercise hereof. The Company will not effect any such consolidation, merger or
sale unless prior to the consummation thereof the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument executed
and mailed or delivered to the registered holder of each Warrant at the last
address of such Warrantholder appearing on the books of the Company, the
obligation to deliver to such Warrantholder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such Warrantholder may
be entitled to purchase. If a purchase, tender or exchange offer is made to
and accepted by the holders of more than 50% of the outstanding shares of
Common Stock of the Company, the Company shall not effect any consolidation,
merger or sale with the Person (as hereinafter defined) having made such offer
or with any Affiliate (as hereinafter defined) of such Person, unless prior to
the consummation of such consolidation, merger or sale the Warrantholders shall
have been given the right to elect to receive upon the exercise of Warrants,
either the stock, securities or assets then issuable with respect to the Common
Stock (or Other Securities) of the Company or the stock, securities or assets,
or the equivalent issued to previous holders of the Common Stock in accordance
with such offer. The term "Person" as used in this Section 7(b) shall mean and
include an individual, a partnership, a corporation, a trust, a joint venture,
an unincorporated organization and a government or any department or agency
thereof. For the purposes of this Section 7(b), an "Affiliate" of any Person
shall mean any Person directly or indirectly controlling, controlled by or
under common control with, such other Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, by contract or
otherwise.
(c) Effect of Dissolution or Liquidation. In case the Company shall
dissolve or liquidate all or substantially all of its assets, all rights under
this Warrant Agreement and the Warrants shall terminate as of the date upon
which a certificate of dissolution or liquidation shall be filed with the
Secretary of State of Texas (or, if the Company theretofore shall have been
merged or consolidated with a corporation incorporated under the laws of
another state, the date upon which action of equivalent effect shall have been
taken); provided, however, that (i) no dissolution or liquidation shall affect
the rights under Section 7(b) of any Warrantholder and (ii) if the Company's
Board of Directors shall propose to dissolve or liquidate the Company, each
Warrantholder shall be given written notice of such proposal at the earlier of
(1) the time when the Company's shareholders are first given notice of the
proposal and (2) the time when notice to the Company's shareholders is first
required.
(d) Notice of Change of Purchase Price. Whenever the Purchase Price
or the kind or amount of securities or assets purchasable under the Warrants
shall be adjusted pursuant to any of the provisions of this Warrant Agreement,
the Company shall forthwith thereafter cause to be sent to each Warrantholder a
certificate setting forth the adjustments in the Purchase Price and/or
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in such number of shares, securities or assets purchasable upon exercise of the
Warrants and also setting forth in detail the facts requiring such adjustments,
including without limitation a statement of the consideration received or
deemed to have been received by the Company for any additional shares of stock
or other securities issued by it requiring such adjustment.
(e) Notice of a Record Date. In the event of (i) any taking by the
Company of a record of the holders of any class of securities for the purpose
of determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend payable out of earned surplus of the Company) or
other distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or assets, or
to receive any other right, (ii) any reorganization of the Company, or any
reclassification or recapitalization of the capital stock of the Company, or
any transfer of all or substantially all of the assets of the Company to, or
consolidation or merger of the Company with, any other person or (iii) any
voluntary or involuntary dissolution or liquidation of the Company, then and in
each such event the Company will mail or cause to be mailed to each
Warrantholder a notice specifying not only the date on which any such record is
to be taken for the purpose of such dividend, distribution or right and stating
the amount and character of such dividend, distribution or right, but also the
date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of
Common Stock (or Other Securities) for securities or other property deliverable
upon such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding-up. Such notice
shall be mailed at least 15 days prior to the proposed record date therein
specified.
(f) Acceleration of Exercisability. If any of the events described
in Section 7(b) or (c) hereof shall occur prior to the first anniversary of the
date of this Warrant Agreement, the Warrants shall become immediately
exercisable.
8. Further Covenants of the Company.
(a) Impairments. The Company will not, by amendment of its articles
of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of the Warrants or of this Warrant Agreement, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to
protect the rights of the Warrantholders against impairment. Without limiting
the generality of the foregoing, the Company:
(i) shall at all times reserve and keep available, solely for
issuance and delivery upon the exercise of the Warrants, all shares of
the Underlying Common Stock from time to time issuable upon the exercise
of the Warrants and shall take all necessary actions to ensure that the
par value per share, if any, of the Underlying Common Stock is at all
times equal to or less than the then effective Purchase Price;
-14-
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(ii) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock (or Other
Securities) upon the exercise of the Warrants from time to time
outstanding; and
(iii) will not transfer all or substantially all of its
properties and assets to any other person or entity, or consolidate with
or merge into any other person or entity or permit any such person or
entity to consolidate with or merge into the Company (if the Company is
not the surviving corporation), unless such other person or entity shall
expressly assume in writing and will be bound by all the terms of this
Warrant Agreement and the Warrants.
(b) Title to Stock. All shares of the Underlying Common Stock
delivered upon the exercise of the Warrants shall be validly issued, fully paid
and nonassessable; each holder of a Warrant shall receive good and marketable
title to the Underlying Common Stock, free and clear of all voting and other
trust arrangements, liens, encumbrances, equities and claims whatsoever by or
through the Company; and the Company shall have paid all stamp, stock transfer
or similar taxes, if any, in respect of the issuance thereof.
(c) Listing on Securities Exchanges; Registration. The Company will,
at its expense, list on the Nasdaq Stock Market's National Market or any other
securities exchange on which the Common Stock is listed, upon official notice
of issuance upon the exercise of the Warrants, and maintain such listing of,
all shares of the Underlying Common Stock from time to time issuable upon the
exercise of the Warrants, and the Company will so list on any securities
exchange, will so register and will maintain such listing of, any Other
Securities if and at the time that any securities of like class or similar type
shall be listed on such securities exchange by the Company.
(d) Remedies. The Company stipulates that the remedies at law of the
Warrantholders or any holder of Underlying Common Stock in the event of any
default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant Agreement or the Warrants are
not and will not be adequate and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or
in the Warrants or by an injunction against a violation of any of the terms
hereof or thereof or otherwise.
(e) Exchange of Warrants. Subject to Section 3 hereof, upon
surrender for exchange of any Warrant to the Company, the Company at its
expense will promptly issue and deliver to or upon the order of the holder
thereof a new Warrant of like tenor, in the name of such holder or as such
holder (upon payment by such Warrantholder of any applicable transfer taxes)
may direct, providing the holder the right to purchase the aggregate number of
shares of the Underlying Common Stock indicated on the face or faces of the
Warrant or Warrants so surrendered as being purchasable thereunder, subject to
adjustment under Section 7. Any Warrant and all rights thereunder are
transferable in whole or in part upon the books of the Company by the
registered holder thereof subject to the provisions of Section 3, in person or
by duly authorized attorney, upon surrender of such Warrant, duly endorsed, at
the principal office of the Company.
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(f) Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount
to the Company or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company, at the expense of the Warrantholder,
will execute and deliver, in lieu thereof, a new Warrant of like tenor.
(g) Reporting by the Company. The Company agrees that during the
term of the Warrants it will keep current in the filing of all forms and other
materials, if any, which it may be required to file pursuant to the Exchange
Act and will use its best efforts to keep current in the filing of all other
forms and reports required to be filed with any governmental securities
regulatory authority having jurisdiction over the Company.
(h) Fractional Shares. No fractional shares of Underlying Common
Stock are to be issued upon the exercise of any Warrant, but the Company shall
pay cash in lieu of any fraction of a share which would otherwise be issuable
upon exercise of the Warrant in an amount equal to such fraction multiplied by
the highest market price per share of Underlying Common Stock on the day of
exercise, as determined by the highest sale price, regular way, or, if there
shall have been no sale on such day, the average of the highest reported bid
and lowest reported asked price, in each case as officially reported on the
principal securities exchange on which the Underlying Common Stock is listed or
admitted to trading, or if not listed or admitted to trading on any securities
exchange, the average of the highest reported bid and lowest reported asked
price as furnished by the National Quotation Bureau Incorporated, all as
adjusted; provided, however, that if the Underlying Common Stock is not traded
in such manner that the quotations referred to herein are available, the market
price shall be deemed to be the fair market value of such Underlying Common
Stock.
9. Other Warrantholders.
The Warrants are issued upon the following terms, to all of which each
holder or owner thereof by the taking thereof consents and agrees: (a) any
person who shall become a transferee, within the limitations on transfer
imposed under Section 3 hereof, of a Warrant properly endorsed shall take such
Warrant subject to the provisions of Section 3 hereof and shall represent to
the Company that he is the absolute owner thereof and, subject to the
restrictions contained in this Warrant Agreement, shall be empowered to
transfer absolute title by endorsement and delivery thereof to a permitted bona
fide purchaser for value; (b) each prior taker or owner waives and renounces
all of his equities or rights in such Warrant in favor of each such permitted
bona fide purchaser, and each such permitted bona fide purchaser shall acquire
absolute title thereto and to all rights represented thereby; (c) until such
time as the relevant Warrant is transferred on the books of the Company, the
Company may treat the registered holder thereof as the absolute owner thereof
for all purposes, notwithstanding any notice to the contrary; and (d) all
references to the words "you" or "your" in this Warrant Agreement shall be
deemed to apply with equal effect to any person to whom a Warrant has been
transferred in accordance with the terms hereof, and where appropriate, to any
person holding shares of the Underlying Common Stock.
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10. Miscellaneous.
All notices, certificates and other communications from or at the
request of the Company to any Warrantholder shall be mailed by first class,
registered or certified mail, postage prepaid, to such address as may have been
furnished to the Company in writing by such Warrantholder, or, until an address
is so furnished, to the address of the last holder of such Warrant who has so
furnished an address to the Company, except as otherwise provided herein. This
Warrant Agreement and any of the terms hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant Agreement shall be construed and enforced in accordance
with and governed by the laws of the State of Texas (without reference to the
conflicts of laws provisions thereof). The headings in this Warrant Agreement
are for purposes of reference only and shall not limit or otherwise affect any
of the terms hereof. This Warrant Agreement, together with the forms of
instruments annexed hereto as Exhibit A and the information on outstanding
registration rights in Schedule 4(h), constitutes the full and complete
agreement of the parties hereto with respect to the subject matter hereof.
* * *
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IN WITNESS WHEREOF, the Company has caused this Warrant Agreement to be
executed on this ______day of October, 1997, in Dallas, Texas, by its proper
corporate officers, thereunto duly authorized.
NEUTRAL POSTURE ERGONOMICS,
INC.
By:
-----------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
The above Warrant Agreement is
confirmed this day of
--------
October, 1997.
HUBERMAN FINANCIAL, INC.
By:
------------------------------
Xxxx Xxxxxxxx
President
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EXHIBIT A
NEITHER THIS WARRANT NOR THE SECURITIES WHICH MAY BE PURCHASED PURSUANT TO THIS
WARRANT HAVE BEEN REGISTERED WITH OR APPROVED BY THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. THIS WARRANT AND THE SECURITIES WHICH MAY BE
PURCHASED PURSUANT TO THIS WARRANT ARE BEING OFFERED AND SOLD IN RELIANCE UPON
CERTAIN EXEMPTIONS AFFORDED BY SUCH ACTS AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS OR AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
NEUTRAL POSTURE ERGONOMICS, INC.
COMMON STOCK PURCHASE WARRANT
THIS IS TO CERTIFY THAT Huberman Financial, Inc. ("HFI") or its
registered assigns, is entitled to purchase at any time or from time to time
after 9:00 o'clock a.m., Dallas, Texas time, on October _____, 1998 until 5:00
o'clock p.m., Dallas, Texas time, on October _____, 2002, up to 133,400 shares
of Common Stock, par value of $0.01 per share, of Neutral Posture Ergonomics,
Inc., a Texas corporation (the "Company"), at a purchase price per share (at
the time in effect as adjusted pursuant to the Warrant Agreement referred to
herein) of $_______ (the "Purchase Price"). This Warrant is issued pursuant to
a Warrant Agreement, dated October ___, 1997 (the "Warrant Agreement"), between
the Company and HFI, and all rights of the holder of this Warrant are subject
to the terms and provisions of the Warrant Agreement, copies of which are
available for inspection at the offices of the Company.
Transfer of this Warrant is restricted as provided in the Warrant
Agreement.
Subject to the provisions of the Securities Act of 1933, as amended, and
of the Warrant Agreement, this Warrant and all rights hereunder are
transferable, in whole or in part, at the offices of the Company, at 0000 Xxxxx
Xxxxx Xxxxxx, Xxxxx, Xxxxx 00000, by the holder hereof in person or by his or
its duly authorized attorney, upon surrender of this Warrant, together with the
Assignment hereof duly endorsed. Until transfer hereof on the books of the
Company, the Company may treat the registered holder as the owner hereof for
all purposes.
20
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in Dallas, Texas this ____ day of October, 1997 by its proper corporate
officers thereunto duly authorized.
NEUTRAL POSTURE ERGONOMICS,
INC.
By:
-----------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
ATTEST:
---------------------------------
Name:
---------------------------
Title:
--------------------------
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To Neutral Posture Ergonomics, Inc.:
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase right represented by such Warrant for, and to
purchase thereunder, _______________* shares of Common Stock of Neutral Posture
Ergonomics, Inc. and herewith makes payment of $_________ therefor, and
requests that the certificate or certificates for such shares be issued in the
name of and delivered to the undersigned.
Dated:
-------------------------
-----------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the
within Warrant)
-----------------------------
-----------------------------
-----------------------------
(Address)
----------------
* Insert here the number of shares called for on the face of the Warrant
or, in the case of a partial exercise, the portion thereof as to which
the Warrant is being exercised, in either case without making any
adjustment for additional Common Stock or any other stock or other
securities or property or cash which, pursuant to the adjustment
provisions of the Warrant Agreement pursuant to which the Warrant was
granted, may be deliverable upon exercise.
22
FORM OF ASSIGNMENT
(To be signed only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers
unto _________________________________________ the right represented by the
within Warrant to purchase __________________________ shares of Common Stock of
Neutral Posture Ergonomics, Inc. to which the within Warrant relates, and
appoints ____________________________ Attorney to transfer such right on the
books of Neutral Posture Ergonomics, Inc. with full power of substitution in
the premises.
The undersigned represents and warrants that the transfer of the within
Warrant is permitted by the terms of the Warrant Agreement pursuant to which
the within Warrant has been issued, and the transferee hereof, by his
acceptance of this Assignment, represents and warrants that he is familiar with
the terms of said Warrant Agreement and agrees to be bound by the terms thereof
with the same force and effect as if a signatory thereto.
Dated:
-------------------------
-----------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the
within Warrant)
-----------------------------
-----------------------------
-----------------------------
(Address)
Signed in the presence of:
-------------------------------
23
SCHEDULE 4(H)
OUTSTANDING REGISTRATION RIGHTS
After the consummation of the offering of Common Stock by the Company
pursuant to Form SB-1 filed with the Securities and Exchange Commission, (i)
Xxxxx X. Xxxxxxxx will own 100,000 shares of Common Stock and options to
acquire 200,000 shares of Common Stock and (ii) Xxxxx X. Xxxxx will own 60,000
shares of Common Stock, all of which shares of Common Stock will be subject to
certain registration rights pursuant to the Company's Amended and Restated 1996
Nonqualified Stock Option Plan.
