Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No.1 to Form S-1 87 486K
2: EX-3.(I) Restated Articles of Incorporation 6 21K
3: EX-3.(II) Amended and Restated By-Laws 19 88K
4: EX-4.(A) Certificate for Common Stock 2 16K
5: EX-4.(B) Form of Certificate of Designation 5 21K
6: EX-9 Voting Agreement 7 28K
7: EX-10.(I)(1) Settlement Agreement 18 52K
8: EX-10.(J) Executive Employment Agreement, Drew Congleton 14 55K
9: EX-10.(M) First Ameneded & Restated Executive Employmt Agree 16 67K
10: EX-10.(T) Stock Option Plan 12 48K
11: EX-10.(U) Letter of Intent Dated January 8, 1997 3 14K
12: EX-10.(V) Executive Employment Agreement-Gerald McMillan 16 57K
13: EX-16 Letter of Thompson, Derrig & Slovacek Pc 1 8K
14: EX-23.(A) Consent of Kpmg Peat Marwick LLP 1 6K
15: EX-23.(B) Consent of Thompson, Derrig & Slovacek Pc 1 7K
16: EX-99.(F) Consent of Mark McMillian 1 7K
EX-9 — Voting Agreement
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EXHIBIT 9
VOTING AGREEMENT
This Voting Agreement ("Agreement"), dated as of December 1, 1996, by
and among Gerald McMillan ("G. McMillan"), William H. Griffin, as Trustee of
the Morgan Trust (the "Morgan Trust"), Gerard Smith ("Smith"), Gerard Smith as
Trustee of the Ashleigh Lynch Smith Irrevocable Trust (the "A.L. Smith Trust"),
Gerard Smith as Trustee of the Alyssa Kay Smith Irrevocable Trust (the "A.K.
Smith Trust"), Mark A. McMillan ("M. McMillan"), Dr. Richard Troutman
("Troutman"), Drew Congleton ("Congleton") and ErgoBilt, Inc., a Texas
corporation (the "Corporation"). The parties hereto, excluding the
Corporation, are hereafter sometimes referred to individually as a
"Shareholder" or collectively as the "Shareholders".
RECITALS
A. G. McMillan, the Morgan Trust, Smith, the A.L. Smith Trust and
the A.K. Smith Trust each own shares of common stock, par value $0.01, of the
Corporation ("Common Stock").
B. M. McMillan, Troutman and Congleton (collectively, the "BodyBilt
Shareholders") presently own all the issued and outstanding stock of BodyBilt
Seating, Inc., a Texas corporation ("BodyBilt").
C. The BodyBilt Shareholders and the Corporation have entered into
that certain Agreement and Plan of Merger (the "Merger Agreement") dated as of
August 19, 1996, pursuant to which BodyBilt will merge into a wholly owned
subsidiary of the Corporation (the "Merger"). As partial consideration for the
Merger, the BodyBilt Shareholders will receive shares of the Corporation's
Common Stock and shares of the Corporation's Series A Convertible Preferred
Stock (the "Series A Preferred Stock").
D. The Merger Agreement contains certain provisions: (i) requiring
that Troutman, Congleton and Smith each be elected to serve as members of the
Board of Directors (the "Board") of the Corporation for three (3) years; (ii)
requiring G. McMillan and Smith to deliver written agreements not to remove
them as directors, except for cause; (iii) entitling Troutman to nominate his
successor should he resign as a director; (iv) requiring G. McMillan to remain
as a director; and (v) requiring that other nominees to the Board be approved
by either M. McMillan or Congleton, such approval not being unreasonably
withheld.
E. Troutman has declined to serve as a director and has nominated
William Brown Glenn, Jr. ("Glenn"), as his successor.
F. The parties have determined that, to affirm and clarify the
foregoing provisions of the Merger Agreement, it is in their respective best
interests to enter into a voting agreement pursuant to Article 2.30.B of the
Texas Business Corporation Act (the "Act") obligating each Shareholder to vote
his shares of Common Stock and Series A Preferred and any other voting stock
(collectively the "Shares") as follows:
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and based upon the premises set forth above, the parties agree as
follows:
1. Voting Agreement. Each Shareholder expressly agrees that, during
the term of this Agreement, such Shareholder shall, either directly or by
proxy, vote any and all Shares now or hereafter acquired by the Shareholder to
elect (i) Congleton, G. McMillan, Smith and Glenn (or his successor nominated
pursuant to Section 2.4 hereof) to the Board, such that each individual serves
as a director commencing immediately following the Closing of the Merger (as
such term is defined in the Merger Agreement) and for one-year terms thereafter
at each of the 1997, 1998, and 1999 Annual Meetings of Shareholders of the
Corporation; and (ii) W. Barton Munro, William Weed and Robert Faust to the
Board, such that each individual serves as a director commencing immediately
following the Closing of the Merger and for a one-year term thereafter at the
1997 Annual Meeting of Shareholders.
2. Additional Covenants.
2.1. M. McMillan and Congleton approve the nomination and
election of the persons named above to serve as members of the Board pursuant
to Section 1 hereof.
2.2. The BodyBilt Shareholders agree that the nomination and
election of Glenn to the Board as Troutman's designee shall be deemed to
satisfy the obligation to elect Troutman to serve on the Board, as specified in
Paragraph 8.9 of the Merger Agreement.
2.3. G. McMillan, Morgan, Smith, A.K. Smith Trust, and the A.L.
Smith Trust agree not to remove Glenn or Congleton as directors of the
Corporation during the term of this Agreement, except for cause.
2.4. Troutman retains the right to nominate a successor to
serve as a member of the Board, in the event that Glenn fails to complete three
one-year terms, as provided in Section 1 hereof, and the Shareholders agree to
vote for such nominee.
2.5. Notwithstanding Section 2.1 hereof, the obligations of the
Shareholders pursuant to Section 1 hereof shall terminate with respect to
voting their Shares for the election of Smith in the event of his removal with
cause or resignation as President and CEO of the Corporation.
2.6. Upon execution and delivery of this Agreement, Paragraph
8.9 of the Merger Agreement shall have no further force or effect. By
executing the signature page of this Agreement, BodyBilt shall have consented
to the nullification of Paragraph 8.9 of the Merger Agreement as provided for
herein in all respects.
3. Shares Encumbered by Voting Agreement. Each Shareholder agrees
that any and all Shares now held or hereinafter acquired and/or held of record
or beneficially by the Shareholder during the term of this Agreement, whether
acquired as partial consideration for the Merger, or by
2
way of purchase, assignment, stock dividend, stock split, operation of law,
stock bonuses, or stock option plans, shall be deemed subject to and restricted
by this Agreement.
4. Term. The term of this Agreement shall be deemed to have
commenced as of the date first set forth above and shall continue until the
commencement of the 2000 Annual Meeting of Shareholders of the Corporation.
The provisions of Paragraph 2.5 above shall survive the termination of this
Agreement. In the event the Merger does not close on or prior to March 20,
1997 at 5:00 p.m., then this Agreement shall terminate automatically and shall
be of no further force and effect.
5. Miscellaneous.
5.1. Notice. Any notices or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
delivered personally or sent by Federal Express, registered or certified mail,
postage prepaid, addressed as follows or to such other address of which the
parties may have given notice:
Gerald McMillan
6331 Pineview
Dallas, Texas 75248
William H. Griffin, Trustee
The Morgan Trust
c/o King Burns & Company, P.C.
14160 Dallas Parkway, Ninth Floor
Dallas, Texas 75240
Gerard Smith
The A.L. Smith Trust
The A.K. Smith Trust
3605 Harvard Avenue
Dallas, Texas 75205
Mark A. McMillan
2506 River Forest
Bryan, Texas 77802
Dr. Richard Troutman
10225 Collins Avenue
Bal Harbour, Florida 33154
3
Drew Congleton
2815 Monzano Circle
College Station, Texas 77845
Unless otherwise specified herein, such notices or other communications shall
be deemed received (a) on the date delivered, if delivered personally; or (b)
three (3) business days after being sent, if sent by registered or certified
mail.
5.2. Arbitration, Venue, and Binding Effect
5.2.1 Arbitration. Any dispute, controversy or claim
between or among the parties arising out of or relating to this
Agreement, a breach hereof or the transactions contemplated hereby,
shall be settled by arbitration in accordance with the provisions of
this Paragraph 5.2. Any arbitration pursuant to this Paragraph 5.2
shall be conducted by a single arbitrator appointed by the Houston,
Texas, office of the American Arbitration Association upon the request
of a party. The arbitrator shall have a minimum of five (5) years of
experience in the area of business relevant to the particular dispute.
Each party shall be permitted to submit only one proposal to the
arbitrator, and the arbitrator shall be required to choose one of such
proposals as the resolution of the dispute. The arbitrator may proceed
to a resolution notwithstanding the failure of a party to participate in
the proceedings. Each party shall pay such party's own costs and
expenses in connection with any such arbitration, and the participating
parties shall pay that portion of the fees and expenses of the
arbitrator equal to the percentage that the number of shares held by a
party bears to the total number of Shares held by all the parties
participating in the proceedings.
5.2.2 Venue/Binding Effect. The parties agree that any
such arbitration will occur in Bryan, Texas, any such arbitration award
shall be final and binding upon the parties, may be entered in any court
having jurisdiction and shall not be appealable by any party in any
court.
5.3. Binding Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors. It is
expressly intended that this Agreement be specifically enforceable only against
the Shareholders and not against any subsequent purchaser or transferee of the
Shares.
5.4. Entire Agreement; Amendments; Attachments. This Agreement
represents the entire understanding and agreement among the parties with
respect to the subject matter hereof and supersedes all prior oral and written
and all contemporaneous oral negotiations, commitments and understandings among
such parties. If the provisions of any other agreement or document are
inconsistent with the provisions of this Agreement, the provisions of this
Agreement shall prevail.
4
5.5. Legal Fees. In the event legal proceedings are commenced
by a party against any other party in connection with this Agreement or the
transactions contemplated hereby, the party or parties which do not prevail in
such proceedings shall pay the reasonable attorneys' fees and other costs and
expenses, including investigation costs, incurred by the prevailing party or
parties in such proceedings.
5.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
5.7. Section Headings. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit, or
restrict the contractual obligations of the parties.
5.8. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
5.9. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall be one and the same document.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
as of and on the date first above written.
/s/ GERALD MCMILLAN
------------------------------------------
Gerald McMillan
/s/ WILLIAM H. GRIFFIN
------------------------------------------
William H. Griffin, as Trustee of the
Morgan Trust
/s/ GERARD SMITH
------------------------------------------
Gerard Smith
/s/ GERARD SMITH
------------------------------------------
Gerard Smith as Trustee of the Ashleigh
Lynch Smith Irrevocable Trust dated as of
June 1, 1996
/s/ GERARD SMITH
------------------------------------------
Gerard Smith as Trustee of the Alyssa Kay
Smith Irrevocable Trust dated as of
June 1, 1996
5
/s/ MARK A. MCMILLAN
------------------------------------------
Mark A. McMillan
/s/ DR. RICHARD TROUTMAN
------------------------------------------
Dr. Richard Troutman
/s/ DREW CONGLETON
------------------------------------------
Drew Congleton
ErgoBilt, Inc.
By: /s/ GERARD SMITH
--------------------------------------
Gerard Smith, President
Consent of BodyBilt:
BodyBilt Seating, Inc.
By: /s/ MARK A. MCMILLAN
------------------------------
Mark A. McMillan, President
6
CONSENT OF SPOUSES OF SHAREHOLDERS
TO TERMS AND CONDITIONS OF
VOTING AGREEMENT
ERGOBILT, INC.
The undersigned, being the spouse of ______________________________, a
"Shareholder" or prospective Shareholder of ErgoBilt, Inc. in that certain
Voting Agreement ("Agreement") with respect to the shares of ErgoBilt, Inc. now
or hereafter owned by said Shareholder, hereby acknowledges and agrees that:
1. I have read and understand or had explained to me the
terms and conditions of the Agreement; and
2. I understand that my spouse has agreed to vote his shares
of ErgoBilt, Inc. in accordance with the provisions of the Agreement; and
3. I hereby consent to the transactions described in the
Agreement.
Dated: December ___, 1996
-------------------------------------
Printed Name:
----------------------
Shareholder's Name:
----------------
Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 3/20/97 | | 3 | | | | | None on these Dates |
| Filed on: | | 1/13/97 |
| | 12/1/96 | | 1 |
| | 8/19/96 | | 1 |
| | 6/1/96 | | 5 |
| List all Filings |
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