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EXHIBIT 2.3
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 2 to Agreement and Plan of Merger (this "Amendment")
is entered into as of December 27, 2000, by and among POWERBRIEF, Inc., a
Delaware corporation (the "Company") and INTEGRATED ORTHOPAEDICS, INC., a Texas
corporation ("IOI").
WHEREAS, the Company and IOI have entered into that certain Agreement
and Plan of Merger, dated as of September 15, 2000, as amended by that certain
Amendment No. 1 to Agreement and Plan of Merger dated as of November 20, 2000
between the Company and IOI (as amended, the "Merger Agreement");
WHEREAS, the parties hereto desire to amend further the Merger
Agreement as hereinafter set forth;
WHEREAS, the boards of directors of the Company and IOI have approved
this Amendment;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. The capitalized terms used, but not defined in, this
Amendment are defined in the Merger Agreement.
2. Amendments to Section 2.1(a)(ii) - Conversion of Shares. The
penultimate sentence of the first paragraph of Section 2.1(a)(ii) of the Merger
Agreement is hereby amended and restated to read in its entirety as follows:
"Such Series A Warrants will have an exercise price equal to 1.25 times
the lesser of (i) $0.2963 and (ii) the lowest average closing price of
the IOI Common Stock over any consecutive 20 calendar days during the
90 calendar days after the Closing, provided that if the amount in
clause (ii) cannot be determined by a publication by the AMEX or the
National Quotations Bureau LLP, the lowest average closing price for
such period shall be determined in good faith by the Board of
Directors."
3. Amendments to Section 2.2(a)(i) - Stock Options and Warrants. The
last sentence of the paragraph of Section 2.2(a)(i) of the Merger Agreement is
hereby amended and restated to read in its entirety as follows:
"Any holder of an Assumed Stock Option who would otherwise have been
entitled to receive a fraction of a share of IOI Common Stock (after
taking into account all Assumed Stock Options exercised by such holder)
shall receive, in lieu thereof, cash (without interest) in an amount
equal to the product of (i) such
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fractional part of a share of IOI Common Stock multiplied by (ii) (A)
the average of the daily high and low sales prices, regular way, of one
share of IOI Common Stock (rounded to the nearest ten thousandth) on
the American Stock Exchange ("AMEX")(as reported in the New York City
edition of the Wall Street Journal or, if not reported thereby, another
nationally recognized source), or, in the event that IOI Common Stock
is not listed on the AMEX, the daily average of the highest bid and
lowest asked prices in the domestic over-the counter market as reported
by the National Quotations Bureau LLP, or any similar successor
organization, in each case during the ten consecutive trading day
period ending on the second trading day prior to the Closing Date, or
(B) in the event that the price under the forgoing clause (A) cannot be
determined, the market value of one share of IOI Common Stock
immediately prior to the Closing Date as determined in good faith by
the Board of Directors of IOI."
4. Amendments to Section 2.2(b)(i) - Stock Options and Warrants. The
last sentence of the paragraph of Section 2.2(b)(i) of the Merger Agreement is
hereby amended and restated to read in its entirety as follows:
"Any holder of an Assumed Company Warrant who would otherwise have been
entitled to receive a fraction of a share of IOI Common Stock (after
taking into account all Assumed Company Warrants exercised by such
holder) shall receive, in lieu thereof, cash (without interest) in an
amount equal to the product of (i) such fractional part of a share of
IOI Common Stock multiplied by (ii) (A) the average of the daily high
and low sales prices, regular way, of one share of IOI Common Stock
(rounded to the nearest ten thousandth) on the AMEX (as reported in the
New York City edition of the Wall Street Journal or, if not reported
thereby, another nationally recognized source), or, in the event that
IOI Common Stock is not listed on the AMEX, the daily average of the
highest bid and lowest asked prices in the domestic over-the counter
market as reported by the National Quotations Bureau LLP, or any
similar successor organization, in each case during the ten consecutive
trading day period ending on the second trading day prior to the
Closing Date, or (B) in the event that the price under the forgoing
clause (A) cannot be determined, the market value of one share of IOI
Common Stock immediately prior to the Closing Date as determined in
good faith by the Board of Directors of IOI."
5. Amendments to Section 2.7(b) - No Fractional Shares of IOI Common
Stock. The first sentence of Section 2.7(b) of the Merger Agreement is hereby
amended and restated to read in its entirety as follows:
"Notwithstanding any other provision of this Agreement, each holder of
Common Shares and Preferred Shares exchanged pursuant to the Merger who
would otherwise have been entitled to receive a fraction of a share of
IOI Common Stock (after taking into account all Certificates delivered
by such holder) shall receive, in lieu thereof, cash (without interest)
in an amount equal to the product of (i) such fractional part of a
share of IOI Common Stock multiplied by (ii) (A) the
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average of the daily high and low sales prices, regular way, of one
share of IOI Common Stock (rounded to the nearest ten thousandth) on
the AMEX (as reported in the New York City edition of the Wall Street
Journal or, if not reported thereby, another nationally recognized
source), or, in the event that IOI Common Stock is not listed on the
AMEX, the daily average of the highest bid and lowest asked prices in
the domestic over-the counter market as reported by the National
Quotations Bureau LLP, or any similar successor organization, in each
case during the ten consecutive trading day period ending on the second
trading day prior to the Closing Date, or (B) in the event that the
price under the forgoing clause (A) cannot be determined, the market
value of one share of IOI Common Stock immediately prior to the Closing
Date as determined in good faith by the Board of Directors of IOI."
6. Amendment to Exhibit F - Restated Articles of Incorporation. Exhibit
F to the Merger Agreement is hereby deleted in its entirety and replaced with a
new Exhibit F attached to this Amendment as Annex I.
7. Merger Agreement in Effect. Except as herein amended, the Merger
Agreement shall remain valid and subsisting in accordance with its terms. In the
event of any conflict or inconsistency between this Amendment and the Merger
Agreement, the provisions of this Amendment shall govern and control.
8. Governing Laws. This Amendment shall be governed by and construed in
accordance with the Laws of the State of Texas, without giving effect to the
choice of Law principals thereof.
9. Description Headings. The description headings herein are for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Amendment.
10. Severability. The provisions of this Amendment shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Amendment, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Amendment and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed on its behalf as of the day and year first above written.
POWERBRIEF, INC.:
By: /s/ ERNEST D. RAPP
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Name: Ernest D. Rapp
Title: CEO
INTEGRATED ORTHOPAEDICS, INC.:
By: /s/ LAURIE H. GUTIERREZ
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Name: Laurie H. Gutierrez
Title: CFO
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ANNEX I
EXHIBIT F TO MERGER AGREEMENT
[SEE ATTACHED]
