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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 22, 1997
REGISTRATION NO. 333-________
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NEUTRAL POSTURE ERGONOMICS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-2563656
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3904 N. TEXAS AVENUE
BRYAN, TEXAS 77803
(Address of principal executive offices, including Zip Code)
NEUTRAL POSTURE ERGONOMICS, INC. 1997 OMNIBUS SECURITIES PLAN
(Full title of the plan)
-------------------------
REBECCA E. BOENIGK
CHIEF EXECUTIVE OFFICER
NEUTRAL POSTURE ERGONOMICS, INC.
3904 N. TEXAS AVENUE
BRYAN, TEXAS 77803
(409) 778-0502
(Name, address and telephone number, including area code, of agent for service)
Copy to:
GREG R. SAMUEL
HAYNES AND BOONE, LLP
3100 NATIONSBANK PLAZA
901 MAIN STREET
DALLAS, TEXAS 75202-3789
(214) 651-5000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum Amount of
Title of Each Class Amount to be Offering Price Per Aggregate Offering Registration
of Securities to be Registered Registered Share (1) Price (1) Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share . . . . . . . . . . . . . . . 200,000 shares $6.75 $1,350,000 $409.09
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</TABLE>
(1) Estimated pursuant to Rule 457(h)(1) solely for the purpose of calculating
the registration fee, based upon the average of the high and low price
of the Common Stock, as registered on the Nasdaq National Market, on
October 21, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Neutral Posture Ergonomics, Inc.
(hereinafter referred to as the "Registrant" or the "Company") with the
Securities and Exchange Commission are incorporated herein by reference:
(a) The Prospectus filed on October 21, 1997, pursuant to Rule
424(b) under the Securities Act of 1933, relating to the
offering of Common Stock registered pursuant to the
Registrant's Registration Statement on Form SB-1 (Registration
No. 333-33675), containing audited financial statements of the
Registrant for fiscal year ended June 30, 1997.
(b) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement filed on Form 8-A
(Commission File No. 000-23207) as filed with the Commission
on October 15, 1997.
(c) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment that indicates that all securities offered have been
sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal Matters
The validity of the shares of Common Stock being sold in this offering
will be passed upon for the Company by Haynes and Boone, LLP of Dallas, Texas,
special counsel to the Company.
Experts
The financial statements of Neutral Posture Ergonomics, Inc. as of
June 30, 1997, and for each of the two years then ended, incorporated by
reference in this Registration Statement, have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report thereon also
incorporated herein by reference. Such financial statements have been
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Articles of Incorporation of the Company
provides that the Company shall indemnify its directors and officers to the
fullest extent permitted by the Texas Business Corporation Act (the "TBCA").
Pursuant to the provisions of Article 2.02-1 of the TBCA, the Company has the
power to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending, or completed action, suit, or proceeding by
reason of the fact that he is or was a director, officer, employee, or agent of
the Company, against any and all expenses, judgments, fines, and amounts paid
in settlement actually incurred in connection with such action, suit, or
proceeding. The power to indemnify applies only if such person acted in good
faith and in a manner he reasonably believed to be in the best interest, or not
opposed to the best interest, of the Company and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
The statute further provides that the indemnification authorized
thereby shall not be deemed exclusive of any other rights to which any such
officer or director may be entitled under any bylaws, agreements, resolution of
shareholders or directors, or otherwise.
The Company's Amended and Restated Articles of Incorporation also
provides that the liability of the directors of the Company to the Company or
its shareholders for monetary damages for acts or omissions occurring
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in their capacity as directors shall be limited to the fullest extent permitted
by the laws of the State of Texas and any other applicable law, as such laws
now exist and to such greater extent as they may provide in the future.
The Company has directors' and officers' liability insurance which
provides coverage for the directors and officers and the Company for
securities-related exposures arising out of an offering document and open
market securities transactions. In addition, coverage has been provided for
the directors and officers for certain non-securities related acts.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit
Index elsewhere herein.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(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
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this 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; and
(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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's 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 this
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.
(c) 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 Securities Act of 1933 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
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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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on the 22nd day of
October, 1997.
NEUTRAL POSTURE ERGONOMICS, INC.
By: /s/ REBECCA E. BOENIGK
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Rebecca E. Boenigk
Chairman of the Board
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Rebecca E. Boenigk and David W.
Campbell, his true and lawful attorneys-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, execute and file with the Securities and
Exchange Commission and any state securities regulatory board or commission any
documents relating to the proposed issuance and registration of the securities
offered pursuant to this Registration Statement on Form S-8 under the
Securities Act of 1933, as amended, including any amendment or amendments
relating thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as he might or could do if personally present, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or either of them,
or their or his substitute or substitutes, may lawfully do or cause to be done.
In accordance with to the requirements of the Securities Act of 1933,
as amended, this Registration Statement on Form S-8 was signed by the
following persons in the capacities stated below on the 22nd day of October,
1997:
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ Rebecca E. Boenigk Chairman of the Board, Chief
- -------------------------------------- Executive Officer and Director
Rebecca E. Boenigk (Principal Executive Officer)
/s/ David W. Campbell President and Director
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David W. Campbell
/s/ Gregory A. Katt Vice President, Chief Financial
- -------------------------------------- Officer and Secretary/Treasurer
Gregory A. Katt (Principal Financial and
Accounting Officer)
/s/ Jerome J. Congleton Director
- --------------------------------------
Jerome J. Congleton
/s/ Ronald L. Jones Director
- --------------------------------------
Ronald L. Jones
/s/ James W. Thompson Director
- --------------------------------------
James W. Thompson
/s/ Cynthia Pladziewicz Director
- --------------------------------------
Cynthia Pladziewicz
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
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<S> <C> <C>
4.1 -- Amended and Restated Articles of Incorporation of the
Company, filed as Exhibit 2.1 to the Company's
Registration Statement on Form SB-1 (File No. 333-33675)
and incorporated by reference therein.
4.2 -- Amended and Restated Bylaws of the Company, filed as
Exhibit 2.2 to the Company's Registration Statement on
Form SB-1 (File No. 333-33675) and incorporated by
reference therein.
4.3 -- Specimen Common Stock Certificate, filed as Exhibit 3.1
to the Company's Registration Statement on Form SB-1
(File No. 333-33675) and incorporated by reference
therein.
4.4 -- Neutral Posture Ergonomics, Inc. 1997 Omnibus Securities
Plan, dated as of July 1, 1997, filed as Exhibit 6.23
to the Company's Registration Statement on Form SB-1
(File No. 333-33675) and incorporated by reference
therein.
5.1* -- Opinion of Haynes and Boone, LLP.
23.1* -- Consent of Deloitte & Touche LLP.
23.2* -- Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
24.1* -- Power of Attorney (included on signature page).
</TABLE>
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* Filed herewith.
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EXHIBIT 5.1
October 22, 1997
Neutral Posture Ergonomics, Inc.
3905 N. Texas Avenue
Bryan, Texas 77803
Ladies and Gentlemen:
We have acted as counsel to Neutral Posture Ergonomics, Inc., a Texas
corporation (the "Company"), in connection with the preparation and filing of
the Registration Statement of the Company on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the registration of 200,000
shares of Common Stock, par value $.01 per share (the "Common Stock"), of the
Company that may be issued pursuant to the Neutral Posture Ergonomics, Inc.
1997 Omnibus Securities Plan (the "Plan"). The opinions expressed herein relate
solely to, are based solely upon and are limited exclusively to, the internal
substantive laws of the State of Texas and applicable federal laws of the
United States of America.
In connection therewith, we have examined and relied upon the
original, or copies certified to our satisfaction, of (i) the Articles of
Incorporation of the Company, as amended (the "Articles of Incorporation"), and
the Bylaws of the Company, as amended (the "Bylaws"); (ii) the minutes and
records of the corporate proceedings of the Company ; (iii) the Plan; (iv)
such other documents and instruments as we have deemed necessary for the
expression of the opinions contained herein; and (v) the specimen Common Stock
certificate filed as Exhibit 3.1 to the Registration Statement on Form SB-1
(File No. 333-33675) of the Company filed with the Securities Exchange
Commission under the Securities Act of 1933, as amended.
In making the foregoing examinations, we have assumed the genuineness of
all signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all documents submitted
to us as certified or photostatic copies thereof. As to various questions of
fact material to this opinion, where such facts have not been independently
established, and as to the content and form of certain minutes, records,
resolutions and other documents or writings of the Company, we have relied, to
the extent we have deemed reasonably appropriate, upon representations or
certificates of officers of the Company or governmental officials. Finally, we
have assumed that all formalities required by the Company's Articles of
Incorporation, Bylaws and the Texas Business Corporation Act will be complied
with when the shares of Common Stock are issued.
Based upon the foregoing, and having due regard for such legal
considerations as we deem relevant, assuming that the cash consideration
received by the Company in exchange for the issuance of Common Stock under the
Plan equals or exceeds the par value of such Common Stock, we are of the
opinion that the 200,000 shares of Common Stock covered by the Registration
Statement that may be issued from time to time in accordance with the terms of
the Plan have been duly authorized for issuance by the Company, and, when so
issued in accordance with the terms and conditions of the Plan, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement and to the
reference to this firm under "Legal Matters" in the Prospectus forming a part
of such Registration Statement.
Very truly yours,
/s/ HAYNES AND BOONE, LLP
Haynes and Boone, LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Neutral Posture Ergonomics, Inc. (the "Company") on Form S-8 of our report
dated August 11, 1997, appearing in the Company's Registration Statement No.
333-33675 on Form SB-1 and relating to the Company's financial statements as of
June 30, 1997, and for each of the two years then ended. We also consent to
the reference to us under the heading "Experts" in this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Dallas, Texas
October 22, 1997
