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EXHIBIT 10(d)(1)
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
ErgoBilt, Inc. September 6, 1996
0000 Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxxx XxXxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Gentlemen:
This letter confirms the offer of Xxxxxx XxXxxxxx ("XxXxxxxx") made in
July 1996 to sell and transfer to Summit Partners Management Co. ("Summit") or
its affiliates Thirty-Four Thousand (34,000) shares (the "Shares") of the
Common Stock, par value $0.10 ("Common Stock") of ErgoBilt, Inc., a Texas
corporation (the "Company") at $1.00 per share, and the acceptance of Summit.
The Company has agreed to sell, issue and deliver to Summit or its affiliates
the Common Stock Purchase Warrants (the "Warrants") described below for $100.
The Shares and the Warrants are hereinafter referred to collectively as the
"Securities."
1. Purchase. Subject to the terms and conditions hereof, the
undersigned delivers herewith a check payable to the order of XxXxxxxx in the
sum of Thirty-Four Thousand Dollars ($34,000.00) representing the aggregate
purchase price for the Shares. XxXxxxxx shall assign and transfer the Shares
concurrently herewith by Separate Stock Assignment and shall cause the Company
to deliver to Summit or its affiliates a new share certificate evidencing the
Shares.
2. Description of Warrants. The Company shall issue and deliver the
Warrants to purchase shares of Common Stock contemporaneously with the
consummation of the initial public offering of the Common Stock (the "IPO"), as
follows:
(a) In the event the IPO closes on or before December 31,
1996, the undersigned shall receive Warrants to purchase that number of
shares of Common Stock equal to one and one-half percent (1 1/2%) of the
total number of shares of Common Stock offered to the public (including
any shares issued pursuant to any exercise of any over-allotment options
to be granted to the underwriters) as stated on the cover page of the
final prospectus for the IPO, which Warrants shall contain the identical
terms and conditions as the warrant granted to the managing underwriter
of the IPO; or
(b) In the event the IPO closes on or after January 1, 1997,
the undersigned shall receive Warrants to purchase that number of shares
of Common Stock equal to three percent (3%) of the total number of
shares of Common Stock offered to the public (including any shares
issued pursuant to any exercise of any over-allotment options to be
granted to the underwriters) as stated on the cover page of the final
prospectus for the IPO, which Warrants shall contain the identical terms
and conditions as the warrant granted to the managing underwriter of the
IPO.
Company delivers herewith a check payable to the Company in the sum of
One Hundred Dollars ($100.00) representing the aggregate purchase price for the
Warrants.
3. Registration Rights. Contemporaneous with the execution and
delivery of this Agreement, the Company and Summit shall enter into that
certain form of Registration Rights Agreement in the form attached hereto as
Exhibit A with respect to the Securities acquired or to be acquired by Summit.
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4. Accredited Investor Status. Summit and its affiliates who
purchase the Shares or the Warrants represent and warrant to the Company that
either they are (i) a corporation with total assets in excess of $5,000,000,
which has not been formed for the specific purpose of acquiring the Securities;
(ii) an entity in which all of the equity owners are "accredited investors," as
defined in Regulation D; or (iii) an individual or trust which otherwise
satisfies the requirements of "accredited investors", as defined in Regulation
D.
5. Representations, Warranties and Covenants of Summit. Summit
hereby represents, warrants and covenants as follows:
(a) The undersigned has adequate means of providing for its
current needs and possible personal contingencies, and it has no need
now, and it anticipates no need in the foreseeable future, to sell the
Securities for which it hereby subscribes. It is able to bear the
economic risks of its investment, and, consequently, without limiting
the generality of the foregoing, it is able to hold the Securities for
an indefinite period of time and has a sufficient net worth to sustain a
loss of its entire investment in the Company in the event that such loss
should occur.
(b) The undersigned has such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of an investment in the Company.
(c) The undersigned has received and read and is familiar with
various written materials concerning the Company (the "Materials"), and
it confirms that, if requested, all documents, records and books
pertaining to its proposed investment in the Company have been made
available to it.
(d) The undersigned has had an opportunity to ask questions of
and receive satisfactory answers from the officers and directors of the
Company concerning the terms and conditions of its investment, and all
such questions have been answered to the full satisfaction of the
undersigned.
(e) The Securities purchased by the undersigned will be
acquired for its own account for investment and not with a view to, or
for resale in connection with, any distribution of such Securities
within the meaning of the Securities Act of 1933, as amended (the "1933
Act"), and it does not now have any reason to anticipate any change in
its circumstances or any other particular occasion or event which would
cause it to sell the Securities.
(f) The undersigned has received no representations or
warranties from the Company, its officers, directors, agents or
representatives other than those contained in the Disclosure Materials,
and, in making its investment decision, it is relying solely on the
information contained in the Disclosure Materials and investigation made
by it.
(g) It is incorporated or organized under the laws of the
State of Texas, and its principal place of business is within such state
and its true and correct federal tax identification number is set forth
below.
(h) The undersigned acknowledges that the Company has made
available to it the opportunity to obtain additional information to
verify the accuracy of the information contained in the Disclosure
Materials and to evaluate the merits and risks of its investment.
(i) The undersigned represents that it has made other
investments of a similar nature and, by reason of its business and
financial experience has acquired the capacity to protect its own
interest in investments of this nature. In reaching the conclusion that
it desires to acquire the Securities, the undersigned has carefully
evaluated its financial resources and investment position and the risks
associated with its investment, and acknowledges that it is able to bear
the economic risks of its investment.
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(j) The undersigned understands that no Commissioner of
Securities of any state has made any finding or determination relating
to the fairness for public investment of the Securities and that no
Commissioner of Securities of any state has or will recommend or endorse
the Securities of the Company.
(k) The undersigned was not organized for the specific purpose
of acquiring the Securities subscribed to herein and has other
investments or business activities or will make other investments or
engage in other business activities.
6. Representations, Warranties and Covenants of Company. Company
hereby represents, warrants and covenants as follows:
(a) Company is duly incorporated, validly existing and in good
standing under the laws of the State of Texas, having Articles of
Incorporation, as amended, and Bylaws (all terms of which are in full
force and effect) as previously furnished to Summit. Except where the
failure to so qualify would not have a material adverse effect on
Company, Company is duly qualified to conduct business as proposed and
is in good standing as a foreign corporation in all jurisdictions in
which the nature of its business or location of its properties require
such qualification.
(b) Company has full power and authority to enter into this
Agreement and the Registration Rights Agreement and to carry out the
provisions contained herein and therein; and Company has taken all
corporate action necessary for the execution and performance of this
Agreement, the Registration Rights Agreement and the issuance of the
Securities.
(c) Company has authorized capital stock of Twenty Million
(20,000,000) shares of Common Stock, par value $0.10 per share, of
which, as of the date hereof, Three Million Four Hundred Thousand
(3,400,000) shares are issued and outstanding. All of the issued and
outstanding shares of Common Stock were duly and validly issued and are
fully paid and nonassessable. None of the outstanding shares of Common
Stock have been issued in violation of any preemptive rights of the
current or past stockholders of Company. Except as provided under that
certain Agreement and Plan of Merger among Company, BodyBilt Seating,
Inc. and BodyBilt Seating, Inc. shareholders, there are no outstanding
options, warrants or rights to subscribe for, cause, or commitments of
any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock of
Company or contracts, commitments, understandings or arrangements by
which Company is or may be obligated to issue additional shares of its
capital stock or options, warrants, or rights to purchase or acquire any
additional shares of its capital stock. The Securities and the
securities of Company into which the Securities are convertible or
exercisable have been duly and validly issued and are and will be fully
paid and nonassessable and have not been issued in violation of any
preemptive rights.
(d) This Agreement and the Registration Rights Agreement, when
executed and delivered by the parties hereto, will constitute legal,
valid and binding obligations of Company, enforceable in accordance with
their respective terms, subject to bankruptcy, reorganization and other
laws of general applicability and court decisions relating to the
enforcement of creditor's rights, including specific performance
remedies and general equitable principles.
(e) Company has sufficient authorized and unissued shares of
Common Stock to perform its obligations hereunder.
(f) Except as otherwise disclosed herein, there are (i) no
actions at law or suits in equity pending or, to the knowledge of
Company, threatened against it, and (ii) no proceedings by or before any
governmental department, commission, bureau or other administrative
agency, domestic or foreign, are pending or, to the knowledge of
Company, threatened against it.
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(g) No event has occurred, or to the knowledge of Company, is
alleged to have occurred, which could constitute a material default,
breach or other adverse claim with respect to (i) any contract,
agreement or instrument to which Company is a party or by which its
properties are affected, or (ii) any charter or bylaws restriction of
Company, which default, breach or adverse claim would materially and
adversely affect Company's business, operations, properties, financial
condition or assets.
(h) The execution, delivery and performance of this Agreement
and the Registration Rights Agreement, and the issuance, sale and
transfer of the Securities under the provisions of this Agreement by
Company, will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or
result in the creation of any lien, security interest, charge or
encumbrance upon any of the assets of Company under its Articles of
Incorporation or Bylaws or other agreements or instruments to which
Company is a party, or by which it or its properties are bound or
affected.
7. Representations, Warranties and Covenants of XxXxxxxx. XxXxxxxx
hereby represents, warrants and covenants as follows:
(a) XxXxxxxx has full power and authority to enter into this
Agreement and to carry out the provisions contained herein. This
Agreement, when executed and delivered by the parties hereto, will
constitute the legal, valid and binding obligation of XxXxxxxx,
enforceable in accordance with its terms, subject to bankruptcy,
reorganization and other laws of general applicability and court
decisions relating to the enforcement of creditor's rights, including
specific performance remedies and general equitable principles.
(b) The execution and delivery hereof will not constitute a
material default, breach or other adverse claim with respect to any
contract, agreement or instrument to which XxXxxxxx is a party or by
which its properties are affected.
(c) XxXxxxxx has, and will have at the time of the sale to
Summit, good and marketable title to the Shares, free and clear of any
pledge, lien, security interest, encumbrance, claim or equity other than
pursuant to this Agreement; and upon delivery of the Shares and payment
of the purchase price therefor as herein contemplated, Summit will
receive good and marketable title to the Shares, free and clear of any
pledge, lien, security interest, encumbrance, claim or equity.
(d) All authorizations, approvals and consents necessary for
the execution and delivery by XxXxxxxx of this Agreement and the sale
and delivery of the Shares by XxXxxxxx to Summit have been obtained and
are in full force and effect; and XxXxxxxx has full right, power and
authority to enter into this Agreement and to sell, transfer and deliver
the Shares to Summit.
8. Indemnification by Summit. The undersigned acknowledges that it
understands the meaning and legal consequences of the representations and
warranties in paragraph 5 hereof and that Company, its affiliates, directors,
agents and representatives have relied upon such representations and
warranties, and Summit hereby agrees to indemnify and hold harmless Company,
and its officers, directors, agents and representatives, from and against any
and all claims, demands, losses, damages, expenses or liabilities (including
attorneys' fees) due to or arising out of a breach of any such representations
or warranties. Notwithstanding the foregoing, however, no representation,
warranty, acknowledgment or agreement made herein by the undersigned shall in
any manner be deemed to constitute a waiver of any rights granted to it under
federal or state securities laws.
9. Indemnification by Company. Company acknowledges that it
understands the meaning and legal consequences of the representations and
warranties in paragraph 6 hereof and that Summit, its affiliates, directors,
agents and representatives have relied upon such representations and
warranties, and Company hereby agrees to indemnify and hold harmless Summit,
and its officers, directors, agents and representatives, from and against any
and all claims, demands, losses, damages, expenses or liabilities (including
attorneys' fees) due to or arising out of a breach of any such representations
or warranties. Notwithstanding the foregoing, however, no representation,
warranty, acknowledgment
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or agreement made herein by Company shall in any manner be deemed to constitute
a waiver of any rights granted to it under federal or state securities laws
10. Survival of Representations, Warranties and Covenants. All
representations, warranties, indemnities and covenants set forth in this
Agreement above shall survive the issuance and delivery of the Securities for a
period of two (2) years.
11. Limitation on Transfer of the Common Stock. The undersigned
acknowledges that it is aware that there are substantial restrictions on the
transferability of the Securities. Since the Securities will not be, and the
undersigned has no right to require that they be, registered under the 1933
Act, the Securities may not be, and the undersigned agrees that they shall not
be, sold unless such sale is exempt from such registration under the 1933 Act.
12. Compliance with Regulation D. The undersigned agrees that the
following restrictions and limitations are applicable to its purchase of the
Securities pursuant to Regulation D under the 1933 Act:
(a) The undersigned agrees that the Securities shall not be
sold, pledged, hypothecated or otherwise transferred unless the
Securities are registered under the 1933 Act and applicable state
securities laws, or is exempt therefrom.
(b) A legend will be placed on the Certificate representing
the Securities in substantially the following form:
"The securities evidenced by this certificate have
not been registered under the Securities Act of
1933, as amended, or any state securities act, and
may not be sold, transferred or otherwise disposed
of absent such registration unless, in the opinion
of counsel to the Company, such registration is not
required."
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth below.
SUMMIT MANAGEMENT PARTNERS CO.
By: /s/ XXX X. XXXXXX
------------------------------------
Xxx X. Xxxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxx 0000, XX 000
Xxxxxx, Xxxxx 00000
AGREED TO AND ACCEPTED
as of September 6, 1996.
ERGOBILT, INC.
By: /s/ XXXXXX XXXXX
-----------------------------------
Xxxxxx Xxxxx, President
/s/ XXXXXX XxXXXXXX
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Xxxxxx XxXxxxxx, An Individual
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