Exhibit 10.18
WARRANT AGREEMENT
(Robert S. Colman - 37,500 Shares)
This WARRANT AGREEMENT (this "AGREEMENT") is made and entered into as of
the 31st day of March, 1996, by and between NEW IMAGE INDUSTRIES, INC. (the
"Company"), a Delaware corporation, and Robert S. Colman ("Holder"). In
consideration of these premises and the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the Company and Holder
agree as follows:
1. GRANT OF WARRANT. In consideration of the sum of $37.50 ($0.001 per
Warrant) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company hereby grants to
Holder the right and option (the "Warrant"), upon the terms and subject to
the conditions set forth in this Agreement, to purchase all or any portion of
37,500 shares of the Common Stock, par value $0.001 per share, of the Company
(the "Shares") at an exercise price of $2.125 per share (the "Exercise
Price").
2. TERM OF WARRANT. The Warrant shall terminate and expire at 5:00 p.m.,
Pacific Time, on March 30, 2001 (the "Warrant Expiration Date"), unless sooner
terminated as provided herein.
3. EXERCISE OF WARRANT. There is no obligation to exercise the
Warrant, in whole or in part. The Warrant may be exercised, in whole or in
part, only by delivery to the Company of: (a) written notice of exercise in
form and substance identical to Exhibit "A" attached to this Agreement
stating the number of Shares then being purchased (the "Purchased Shares");
and (b) payment of the Exercise Price of the Purchased Shares by wire
transfer of immediately available Federal funds. Upon receipt of the
foregoing, the Company shall promptly issue in the name of the Holder a stock
certificate evidencing the Purchased Shares being purchased by such exercise
and deliver such certificate to the Holder.
4. RESTRICTIONS ON PURCHASED SHARES. Holder shall not sell, transfer
(with or without consideration), assign, pledge, hypothecate or otherwise
dispose of (collectively, "Transfer") any of the Purchased Shares unless the
Purchased Shares are disposed of pursuant to and in conformity with an
effective registration statement filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of 1933, as
amended (the "Act"), or pursuant to an available exemption from the
registration and prospectus delivery requirements of the Act, and the
proposed disposition will not result in a violation of the securities laws of
any state of the United States. If requested by the Company, Holder shall,
prior to the transfer of such Purchased Shares, deliver to the Company a
written opinion of counsel, satisfactory to the Company and its counsel, that
the proposed disposition will comply with the requirements set forth in this
Paragraph 4. Any attempted Transfer which is not in full
compliance with this Paragraph 4 shall be null and void AB INITIO, and of no
force or effect.
5. ADJUSTMENTS UPON RECAPITALIZATION.
(a) In the event the Company should at any time or from time to
time after the date of this Warrant (the "Issuance Date") fix a record date
for the effectuation of a split or subdivision of the outstanding shares of
Common Stock or the determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in additional shares of
Common Stock or other securities or rights convertible into, or entitling the
holder thereof to receive, directly or indirectly, additional shares of
Common Stock (hereinafter referred to as "Common Stock Equivalents") without
payment of any consideration by such holder for the additional shares of
Common Stock or the Common Stock Equivalents (including the additional shares
of Common stock issuable upon conversion or exercise thereof), then, as of
such record date (or the date of such dividend distribution, split or
subdivision if no record date is fixed), the Exercise Price shall be
appropriately decreased (i.e., the per share Exercise Price shall be adjusted
such that the aggregate exercise price for all Shares issuable upon exercise
of the Warrants in full, as adjusted, shall remain the same) and the number
of Shares shall be increased in proportion to such increase in the aggregate
number of shares of Common Stock outstanding and those issuable with respect
to such Common Stock Equivalents.
(b) If the number of shares of Common Stock outstanding at any time
after the Issuance Date is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date of such combination,
the Exercise Price shall be appropriately increased (i.e., the per share
Exercise Price shall be adjusted such that the aggregate exercise price for
all Shares issuable upon exercise of the Warrants in full, as adjusted, shall
remain the same) and the number of Shares shall be decreased in proportion to
such decrease in the aggregate number of shares of Common Stock outstanding
and those issuable with respect to such Common Stock Equivalents.
(c) In case of any capital reorganization, any reclassification of
the Common Stock (other than a change in par value or a recapitalization
described in Paragraph 5(a) or 5(b) of this Agreement), or the consolidation
of the Company with, or a sale of substantially all of the assets of the
Company to (which sale is followed by a liquidation or dissolution of the
Company), or merger of the Company with, another person, the Holder shall
thereafter be entitled upon exercise of the Warrant to purchase the kind and
number of shares of stock or other securities or the amount or value of any
cash, assets or other property receivable upon such event by a holder of the
number of shares of the Common Stock which the Warrant entitles the holder of
the Warrant to purchase from the Company immediately prior to such event; and
in any such case, appropriate adjustment shall be made in the application of
the provisions set forth in this Agreement with respect to the Holder's
rights and interests thereafter, to the end that the provisions set forth in
this Agreement (including the specified changes and other adjustments to the
Exercise Price) shall thereafter be applicable in relation to any
shares or other property thereafter purchasable upon exercise of the Warrant.
(d) In the event the Company should at any time or from time to
time after the Issuance Date fix a record date for the determination of
holders of Common Stock entitled to receive a dividend or other distribution
payable in securities or rights convertible into, or entitling the holder
thereof to receive, directly or indirectly, additional shares of Common Stock
or the securities or such rights of any other corporation (other than Common
Stock Equivalents covered by Paragraph 5(a) hereof), the Holder shall
thereafter be entitled upon exercise of the Warrant to receive, in addition
to the Purchased Shares being purchased upon such exercise, the securities or
rights convertible into securities receivable upon such event by a holder of
the number of shares of the Common Stock which the Holder is purchasing upon
such exercise.
(e) If it is expected that there will occur any event described in
Paragraph 5(c) or 5(d) hereof, the Company shall give the holder of the
Warrants notice thereof, which notice shall be given at such time or times as
notice is given to the holders of the Company's Common Stock.
(f) The provisions of this Paragraph 5 are intended to be
exclusive, and the holder of the Warrant shall have no rights other than as
set forth in this Agreement (and the rights of a stockholder upon exercise of
the Warrant) upon the occurrence of any of the events described in this
Paragraph 5.
(g) The grant of the Warrant shall not affect in any way the right
or power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure, or to merge,
consolidate, dissolve or liquidate, or to sell or transfer all or any part of
its business or assets.
6. REPRESENTATIONS AND WARRANTIES OF HOLDER. Holder makes the following
representations and warranties:
(a) Holder is acquiring the Warrants for its own account with the
present intention of holding such securities for investment purposes only and
not with a view to, or for sale in connection with, any distribution of such
securities (other than a distribution in compliance with all applicable
federal and state securities laws).
(b) Holder is an experienced and sophisticated investor and has
such knowledge and experience in financial and business matters that it is
capable of evaluating the relative merits and the risks of an investment in
the Warrants and in the Shares and of protecting its own interests in
connection with this transaction.
(c) Holder is willing to bear and is capable of bearing the economic
risk of an investment in the Warrants and the Shares.
(d) The Company has made available, prior to the date of this
Agreement, to Holder the opportunity to ask questions of the Company and its
officers,
and to receive from the Company and its officers information
concerning the terms and conditions of the Warrants and this Agreement and to
obtain any additional information with respect to the Company, its business,
operations and prospects, as reasonably requested by Holder.
(e) Holder is an "accredited investor" as that term is defined
under Rule 501(a) of Regulation D promulgated by the Securities and Exchange
Commission under the Act.
(f) For purposes of the application of federal and state securities
laws, Holder acknowledges that the offer and sale of the Warrants to Holder
occurred in the State of California and that Holder is a resident of the State
of California.
7. LEGEND ON STOCK CERTIFICATES. Holder agrees that all certificates
representing the Purchased Shares will be subject to such stock transfer
orders and other restrictions as the Company may deem advisable under the
rules, regulations and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Common Stock is then listed and
any applicable federal or state securities laws, and the Company may cause
the following legend to be put on such certificates to make appropriate
reference to such restrictions:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED
OR OTHERWISE HYPOTHECATED WITHOUT REGISTRATION UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION THEREFROM.
8. NO RIGHTS AS STOCKHOLDER. Holder shall have no rights as a
stockholder of the Company with respect to the Shares until the date of the
issuance to Holder of a stock certificate or stock certificates evidencing
such Shares. Except as may be provided in Paragraph 5 of this Agreement, no
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for
which the record date is prior to the date such stock certificate is issued.
9. MODIFICATION. The Board or a committee thereof may modify, extend or
renew the Warrant or accept the surrender of, and authorize the grant of a
new option in substitution for, the Warrant (to the extent not previously
exercised). No modification of the Warrant shall be made without the consent
of Holder which would alter or impair any rights of Holder under the Warrant.
10. DISPUTES.
(a) ARBITRATION. All disputes arising in connection with this
Agreement shall be finally settled by arbitration in San Diego, California,
in accordance with the rules of the American Arbitration Association (the
"Rules of Arbitration") and judgment
on the award rendered by the arbitration panel (the "Arbitration Panel") may
be entered in any court or tribunal of competent jurisdiction.
(b) Any party which desires to initiate arbitration proceedings as
provided in Paragraph 10(a) above may do so by delivering written notice to
the other party (the "Arbitration Notice") specifying (A) the nature of the
dispute or controversy to be arbitrated, (B) the name and address of the
arbitrator appointed by the party initiating such arbitration and (C) such
other matters as may be required by the Rules of Arbitration.
(c) The Parties shall appoint a single arbitrator who shall
constitute the Arbitration Panel hereunder. Should the parties not agree upon
the appointment of the arbitrator within 30 days of delivery of the
Arbitration Notice, the Arbitrator shall be appointed in accordance with the
Rules of Arbitration.
(d) In any arbitration proceeding conducted pursuant to the
provisions of this Paragraph 10, both parties shall have the right to
discovery, to call witnesses and to cross-examine the opposing party's
witnesses, either through legal counsel, expert witnesses or both.
(e) FINALITY OF DECISION. All decisions of the Arbitration Panel
shall be final, conclusive and binding on all parties and shall not be
subject to judicial review. The arbitrator shall divide all costs (other than
fees of counsel) incurred in conducting the arbitration proceeding and the
final award in accordance with what they deem just and equitable under the
circumstances.
(f) LIMITATIONS. Notwithstanding anything to the contrary contained
in Paragraphs 10(a) and 10(b) above, any claim by either party for injunctive
or other equitable relief, including specific performance, may be brought in
any court of competent jurisdiction and any judgment, order or decree
relating thereto shall have precedence over any arbitral award or proceeding.
11. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Holder shall promptly take all actions and
execute all documents requested by the Company which the Company deems to be
reasonably necessary to effectuate the terms and intent of this Agreement.
(b) NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be given to
the parties hereto as follows:
If to the Company, to:
NEW IMAGE INDUSTRIES, INC.
2283 Cosmos Court
Carlsbad, California 92009
Attention: President
If to Holder, to:
Robert S. Colman
Colman Partners, LLC
One Maritime Plaza Suite 2535
San Francisco, CA 94111
or at such other address or addresses as may have been furnished by either
party in writing to the other party hereto. Any such notice, request, demand
or other communication shall be effective (i) if given by mail, two days
after such communication is deposited in the mail by first-class certified
mail, return receipt requested, postage prepaid, addressed as aforesaid, or
(ii) if given by any other means, when delivered at the address specified in
this subparagraph (b).
(c) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made in, and to be performed within, that state. Jurisdiction
and venue over any legal action brought hereunder shall reside exclusively in
the county of Los Angeles, State of California. Each of the parties hereto
waive their right to a jury trial with respect to any such legal actions.
(d) ATTORNEYS' FEES. In the event that any action, suit or
arbitration or other proceeding is instituted upon any breach of this
Agreement, the prevailing party shall be paid by the other party thereto an
amount equal to all of the prevailing party's costs and expenses, including
attorneys' fees incurred in each and every such action, suit or proceeding
(including any and all appeals or petitions therefrom). As used in this
Agreement, "attorneys' fees" shall mean the full and actual cost of any legal
services actually performed in connection with the matter involved calculated
on the basis of the usual fee charged by the attorney performing such
services and shall not be limited to "reasonable attorneys' fees" as defined
in any statute or rule of court.
(e) AMENDMENT; WAIVER. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
successors, heirs and personal representatives. No provision of this
Agreement may be amended or waived unless in writing signed by all of the
parties to this Agreement. Waiver of any one provision of this Agreement
shall not be deemed to be a waiver of any other provision.
(f) NO FINDERS. The parties each agree to indemnify and hold
harmless the other against any expense incurred by reason of any consulting,
brokerage commission or finder's fee alleged to be payable to any person in
connection with the transactions contemplated hereby because of any act,
omission or statement of indemnifying party or any dealings by the
indemnifying party with any consultant,
broker or finder.
(g) EXPENSES. Each of the parties shall pay its own expenses
incurred in connection with the preparation of this Agreement and the
consummation of the transactions contemplated hereby.
(h) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be or
become prohibited or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together shall constitute one agreement binding on
all parties hereto, notwithstanding that all of the parties have not signed
the same counterpart.
(j) ENTIRE AGREEMENT. This Agreement constitutes and embodies the
entire understanding and agreement of the parties hereto relating to the
subject matter hereof and there are no other agreements or understandings,
written or oral, in effect between the parties relating to such subject
matter except as expressly referred to herein.
(k) MISCELLANEOUS. Titles and captions contained in this Agreement
are inserted for convenience of reference only and do not constitute a part
of this Agreement for any other purpose. Except as specifically provided
herein, neither this Agreement nor any right pursuant hereto or interest
herein shall be assignable by any of the parties hereto without the prior
written consent of the other party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
NEW IMAGE INDUSTRIES, INC.
By: /s/ Dewey F. Edmunds /s/ Robert S. Colman
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Dewey F. Edmunds, President Robert S. Colman
EXHIBIT "A"
NOTICE OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF THE WARRANT)
TO: New Image Industries, Inc.
The undersigned hereby irrevocably elects (to the extent indicated herein) to
exercise the purchase right represented by the Warrant granted to the
undersigned on March 31, 1996 and to purchase thereunder shares of
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Common Stock of New Image Industries, Inc., a Delaware corporation
(the "Company"). The closing of the exercise of the purchase right shall take
place at on , at the principal executive
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office of the Company located at 2283 Cosmos Court, Carlsbad, California.
Dated:
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Signed:
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