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EXHIBIT 99.3
POWERBRIEF, INC.
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made as of March __, 2001, by
and among PowerBrief, Inc., a Texas corporation (the "Company"), the existing
shareholders of the Company listed on Exhibit A attached hereto (the "Major
Stockholders"), and the holders of shares of the Company's Senior Convertible
Preferred Stock, Series A (the "Series A Preferred Stock") listed on Exhibit B
(collectively, the "Investors" and each individually, an "Investor").
RECITALS
The Company and the Investors have entered into a Preferred Stock
Purchase Agreement (the "Purchase Agreement") of even date herewith pursuant to
which the Company desires to sell to the Investors and the Investors desire to
purchase from the Company shares of the Company's Senior Convertible Preferred
Stock, Series A. A condition to the Investors' obligations under the Purchase
Agreement is that the Company, the Investors and the Major Stockholders enter
into this Agreement for the purpose of setting forth the terms and conditions
pursuant to which the Investors and the Major Stockholders shall vote their
shares of the Company's voting stock in favor of certain designees to the
Company's Board of Directors. The Company, the Investors and the Major
Stockholders each desire to facilitate the voting arrangements set forth in this
Agreement, and the sale and purchase of shares of Series A Preferred Stock
pursuant to the Purchase Agreement, by agreeing to the terms and conditions set
forth below.
AGREEMENT
The parties agree as follows:
1. ELECTION OF DIRECTORS.
1.1 BOARD REPRESENTATION. At each annual meeting of the
shareholders of the Company, or at any meeting of the shareholders of the
Company at which members of the Board of Directors of the Company are to be
elected, or whenever members of the Board of Directors are to be elected by
written consent, the Major Stockholders and the Investors agree to vote or act
with respect to their shares so as to elect:
(a) a certain number of members of the Company's Board of
Directors (the "Keystone Members") designated by Keystone, Inc. or its
affiliates ("Keystone"), one such Keystone Member initially to be Xxxxx Xxxxxxx,
with the number of the Keystone Members determined by the formula set forth in
Section 1.2 below;
(b) one (1) member of the Company's Board of Directors
designated by the Company's senior management team (the "Management Team"), such
designee initially to be Xxxxxx Xxxx;
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(c) one (1) independent member of the Company's Board of
Directors unanimously designated by the members of the Board of Directors
designated pursuant to Sections 1.1(a) and (b) above.
1.2 KEYSTONE BOARD REPRESENTATION. The number of Keystone Members
shall be equal to the total number of members of the Company's Board of
Directors authorized in the Company's Articles of Incorporation or Bylaws
multiplied by the quotient obtained by dividing (a) the total number of shares
of Preferred Stock and Common Stock held by Keystone (and its affiliates and
related funds, including without limitation FW PowerBrief Investors, L.P., FW
Integrated Orthopaedics Investors, L.P., FW Integrated Orthopaedics Investors
II, L.P. and Group Special Investments, Inc.) on an as-converted basis, by (b)
the total number of the Company's shares of Preferred Stock and Common Stock on
an as-converted basis then actually issued and outstanding; provided, however,
that (i) if such calculation results in a fraction, the number of Keystone
Members shall be rounded to the nearest whole number (with fractions of one half
being rounded up to the next highest whole number), and (ii) the number of
Keystone Members shall be no less than one.
1.3 APPOINTMENT OF DIRECTORS.
(a) In the event of the resignation, death, removal or
disqualification of a director selected by Keystone or the Management Team, as
the case may be, Keystone or the Management Team, as the case may be, shall
promptly nominate a new director, and, after written notice of the nomination
has been given by Keystone or the Management Team, as the case may be, to the
other parties, each Investor and Major Stockholder shall vote its shares of
capital stock of the Company to elect such nominee to the Board of Directors.
(b) In the event of the resignation, death, removal or
disqualification of a director selected pursuant to Section 1.1(c) above,
Keystone and the Management Team shall use reasonable efforts to cause their
respective designees elected pursuant to Sections 1.1(a) and (b) above to
nominate a new director, and, after written notice of the nomination has been
provided by the Board of Directors, each Investor and Major Stockholder shall
vote its shares of capital stock of the Company to elect such nominee to the
Board of Directors.
1.4 REMOVAL.
(a) Keystone or the Management Team, as the case may be,
may remove its designated director at any time and from time to time, with or
without cause (subject to the Bylaws of the Company as in effect from time to
time and any requirements of law), in their sole discretion, and, after written
notice is given to each of the parties hereto of the new nominee to replace such
director, each Investor and Major Stockholder shall promptly vote its shares of
capital stock of the Company to elect such nominee to the Board of Directors.
(b) In the event that Keystone and the Management Team
desire to remove a director designated by Keystone and the Management Team
pursuant to Section 1.1(c) above, Keystone and the Management Team shall give
written notice to each of the parties hereto of such removal, and each Investor
and Major Stockholder shall promptly vote its shares of capital stock of the
Company to remove such director from the Board of Directors.
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2. ADDITIONAL REPRESENTATIONS AND COVENANTS.
2.1 NO REVOCATION. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
2.2 NUMBER OF DIRECTORS. The number of authorized members of the
Board of Directors shall initially be five (5). The Major Stockholders and the
Investors will not vote for any amendment or change to the Articles of
Incorporation or Bylaws providing for the election of more than five (5)
directors, or any other amendment or change to the Articles of Incorporation or
Bylaws inconsistent with the terms of this Agreement. The Company will not take
any action providing for the election of more than five (5) directors.
2.3 COMPENSATION COMMITTEE; AUDIT COMMITTEE; DIRECTOR NOMINATING
COMMITTEE. The Board of Directors' Compensation Committee, Audit Committee, and
Director Nominating Committee (or equivalents thereof) shall each include at
least one Keystone Member.
3. TERMINATION.
3.1 TERMINATION EVENTS. This Agreement shall terminate upon the
earlier of (I) the seven-year anniversary of the date hereof, (ii) the sale,
conveyance or disposal of all or substantially all of the Company's property or
business, (iii) the Company's merger with or into or consolidation with any
other corporation (other than a wholly-owned subsidiary corporation) in which
event the stockholders or if the Company before the transaction own less than
fifty percent (50%) of the voting power of the surviving entity, or (iv) if the
Company effects any other transaction or series of related transactions in which
more than fifty percent (50%) of the voting power of the Company is disposed of,
provided that this Section 3.1 shall not apply to a merger effected exclusively
for the purpose of changing the domicile of the Company.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties, except that this Agreement shall not be
binding upon bona fide purchasers of stock from any party pursuant to a bona
fide public trade effected through the OTC Bulletin Board, the Nasdaq Stock
Market, or a public stock exchange. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.2 AMENDMENTS AND WAIVERS. Any term hereof may be amended or
waived only with the written consent of the Company, Keystone, the holders of at
least a majority (greater than 50%) of the then outstanding shares held by the
Major Stockholders, and the holders of at least a majority (greater than 50%) of
the then outstanding Series A Preferred Stock held by the Investors.
Notwithstanding the foregoing, this Agreement may be amended with only the
written consent of the Company for the sole purpose of including additional
purchasers of
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Series A Preferred Stock as "Investors." Any amendment or waiver effected in
accordance with this Section 4.2 shall be binding upon the Company, the holders
of Series A Preferred Stock and the Major Stockholders, and each of their
respective successors and assigns.
4.3 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address or fax number as set forth on the signature page or on
Exhibit A or Exhibit B hereto, or as subsequently modified by written notice.
4.4 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded, and (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
4.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Texas, without giving effect to principles of conflicts of law.
4.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
4.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
[Signature Page Follows]
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The parties hereto have executed this Voting Agreement as of the date
first written above.
COMPANY:
POWERBRIEF, INC.
By:
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Name:
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(print)
Title:
---------------------------------
Address:
Fax Number:
MAJOR STOCKHOLDERS:
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Xxxxxx X. Xxxx
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Xxxxxx X. Xxxxxxxxx
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K. Xxxx Xxxxxxx
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Xxxxxxx X. Xxxx
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A. Xxxx Xxxxx, Jr.
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Xxxxx Xxxxxx
SIGNATURE PAGE TO VOTING AGREEMENT
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The parties hereto have executed this Voting Agreement as of the date
first written above.
MAJOR STOCKHOLDERS:
FW INTEGRATED ORTHOPAEDICS INVESTORS, L.P.
By:
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Its:
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FW INTEGRATED ORTHOPAEDICS INVESTORS II, L.P.
By:
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Its:
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(Major Stockholder)
By:
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Name:
-----------------------------------
(print)
Title:
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Address:
Fax Number:
SIGNATURE PAGE TO VOTING AGREEMENT
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The parties hereto have executed this Voting Agreement as of the date
first written above.
INVESTORS:
FW POWERBRIEF INVESTORS, L.P., A DELAWARE
LIMITED PARTNERSHIP
By: Group III 31, LLC, a Delaware limited
liability company, its General Partner
By:
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Its:
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[Investor]
By:
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Name:
-----------------------------------
(print)
Title:
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Address:
Fax Number:
SIGNATURE PAGE TO VOTING AGREEMENT
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EXHIBIT A
MAJOR STOCKHOLDERS
NAME/ADDRESS
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxx
K. Xxxx Xxxxxxx
Xxxxxxx X. Xxxx
A. Xxxx Xxxxx, Jr.
Xxxxx X. Xxxxxx
c/o PowerBrief, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
FW Integrated Orthopaedics Investors, L.P.
FW Integrated Orthopaedics Investors II, L.P.
c/o Oak Hill Capital Partners
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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EXHIBIT B
INVESTORS
NAME/ADDRESS
FW PowerBrief Investors, L.P.
c/o Oak Hill Capital Partners
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX
