<PAGE> 1
EXHIBIT 10.1
VOTING AGREEMENT
This Voting Agreement dated as of September 15, 2000 (this
"Agreement"), is made by and among Integrated Orthopaedics, Inc., a Texas
corporation ("IOI"), and each of the undersigned holders of shares of capital
stock (each, a "Stockholder" and collectively, the "Stockholders") of
PowerBrief, Inc., a Delaware corporation (the "Company").
PRELIMINARY STATEMENTS
Concurrently with the execution of this Agreement, the Company
and IOI have entered into an Agreement and Plan of Merger (as the same may be
amended from time to time, the "Merger Agreement"), providing for the merger of
the Company with and into IOI, with IOI being the surviving corporation (the
"Merger"), which Merger is subject to the approval of the holders of shares of
capital stock of the Company as provided in the Merger Agreement, the Delaware
General Corporation Law, as amended, and the Company's Certificate of
Incorporation, as amended.
The Stockholders own the shares of the Company common stock, par
value $0.01 per share (the "Common Stock"), set forth opposite their respective
names on Exhibit A hereto. As used herein, the term "Shares" includes all shares
of such Common Stock as to which each Stockholder (at any time prior to the
termination of this Agreement) is the beneficial or record owner or is otherwise
able to direct the voting thereof and all securities issued or exchanged with
respect to any such Shares upon any reclassification, recapitalization,
reorganization, merger, consolidation, spin-off, stock split, combination, stock
or other dividend or any other change in the Company's capital structure.
To induce IOI to enter into the Merger Agreement, the Company has
agreed, upon the terms and subject to the conditions set forth herein, to cause
holders of not less than a majority of the voting power of the outstanding
shares of Common Stock and Series A Preferred Stock, par value $0.01 per share
(the "Series A Preferred Stock"), of the Company, which will vote together on
the Merger as a single class, to execute this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties to this
Agreement agree as follows:
1. Stockholders' Representations and Warranties. Each Stockholder, as to
itself only, represents and warrants to IOI that (i) such Stockholder is the
beneficial and record owner of the Shares set forth on Exhibit A hereto, free
and clear of any mortgage, pledge, lien, security interest, claim, restriction
on voting or otherwise or other encumbrance, (ii) such Stockholder has the sole
right to vote such Shares free of any mortgage, pledge, lien, security interest,
claim, restriction on voting or otherwise or other
<PAGE> 2
encumbrance, (iii) such Stockholder has the full and unrestricted legal power,
authority and right to enter into, execute and deliver this Agreement without
the consent or approval of any other person, (iv) this Agreement is the valid
and binding agreement of such Stockholder and (v) no investment banker, broker
or finder is entitled to a commission or fee from such Stockholder or the
Company in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of the Stockholder.
2. IOI's Representations and Warranties. IOI hereby represents and warrants
to the Stockholders as of the date hereof that IOI has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by IOI, and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of IOI. This
Agreement has been duly executed and delivered by IOI and constitutes a valid
and binding obligation of IOI enforceable in accordance with its terms. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time or both) under any provision of, the articles of incorporation
or bylaws of IOI, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to IOI or to IOI's property or assets.
3. No Voting Trusts. Each Stockholder hereby revokes any and all proxies
and voting instructions with respect to the Shares previously given by such
Stockholder and such Stockholder agrees that it will not grant or give any other
proxies or voting instructions with respect to the voting of the Shares, enter
into any voting trust or other arrangement or agreement with respect to the
voting of the Shares (and if given or executed, such proxies, voting
instructions, voting trust or other arrangement or agreement shall not be
effective), or agree, in any manner, to vote the Shares for or against any
proposal submitted to the stockholders of the Company except in furtherance of
the proposals set forth in paragraph 4 hereof.
4. Agreements with Respect to the Shares.
(a) Each Stockholder agrees during the term of this Agreement:
(i) to vote the Shares, to the extent entitled to vote, (x) in
favor of the approval of the Merger Agreement and the Merger at every meeting of
the stockholders of the Company at which such matters are considered and at
every adjournment thereof or in any other circumstances upon which a vote,
consent or other approval (including by written consent) with respect to the
Merger and the Merger Agreement is sought, and (y) against all other proposals
submitted to the stockholders of the Company which, directly or indirectly,
would reasonably be expected to prevent or
2
<PAGE> 3
materially delay the consummation of the Merger or the transactions contemplated
by the Merger Agreement, in such manner as IOI may direct; and
(ii) not to solicit, encourage or recommend to other stockholders
of the Company that (w) they vote their shares of Common Stock or Series
Preferred Stock, par value $.01 per share ("Series A Preferred Stock"), of the
Company, or any such other securities in any manner contrary to the terms of the
Merger Agreement and the transactions contemplated thereby, (x) they not vote
their shares of Common Stock or Series A Preferred Stock at all, (y) they
tender, exchange or otherwise dispose of their shares of Common Stock or Series
A Preferred Stock pursuant to a Competing Transaction (as hereinafter defined),
or (z) they attempt to exercise any statutory appraisal or other similar rights
they may have.
(b) Unless otherwise instructed in writing by IOI, during the term of
this Agreement, each Stockholder will vote the Shares against any Competing
Transaction.
(c) Except with the prior written consent of IOI, during the term of
this Agreement, each Stockholder agrees that such Stockholder will not, and
shall use its commercially reasonable efforts not to permit any employee,
attorney, accountant, investment banker or other agent or representative of such
Stockholder to initiate, solicit, negotiate, encourage, or provide confidential
information in order to facilitate any Competing Transaction.
(d) For purposes of this Agreement, a "Competing Transaction" shall
mean a transaction of any kind (including, without limitation, a merger,
consolidation, share exchange, reclassification, reorganization,
recapitalization, sale or encumbrance of substantially all the assets of the
Company outside the ordinary course of business, or sale or exchange by
stockholders of the Company of all or substantially all the shares of the
Company's capital stock) proposed by any person(s).
5. Proxies. In furtherance of the foregoing, each Stockholder is granting
to Douglas P. Badertscher, the Chief Operating Officer of IOI, and/or Laurie
Hill Gutierrez, the Chief Financial Officer of IOI, or to his or her
designee(s), irrevocable proxies and powers of attorney (which may be in the
form annexed hereto or such other form consistent with the terms hereof and
thereof as IOI may specify) to vote the Shares, to the extent such Shares are
entitled to vote, and hereby specifically agrees not to revoke such proxies
granted under any circumstances:
(a) at any and all meetings of stockholders of the Company, notice of
which meetings are given prior to the due and proper termination of this
Agreement, with respect to matters presented to the Company's stockholders for a
vote which relates to or affects (i) the Merger or the Merger Agreement or the
approval of either thereof; and (ii) any Competing Transaction; or
3
<PAGE> 4
(b) with respect to actions to be taken by written consent of the
stockholders of the Company which relates to or affects any of the foregoing,
and which consent is solicited prior to the due and proper termination of this
Agreement.
6. Limitation on Sales. During the term of this Agreement, except pursuant
to the Merger, each Stockholder agrees not to sell, assign, transfer, loan,
tender, pledge, hypothecate, exchange, encumber or otherwise dispose of, or
issue an option or call with respect to, any of the Shares, or impair such
Stockholder's Shares.
7. Specific Performance. Each Stockholder acknowledges that it will be
impossible to measure in money the damage to IOI if the Stockholder fails to
comply with the obligations imposed by this Agreement, and that, in the event of
any such failure, IOI will not have an adequate remedy at law or in damages.
Accordingly, each Stockholder agrees that injunctive relief or any other
equitable remedy, in addition to any remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of any
such remedy on the basis that IOI has an adequate remedy at law. Each
Stockholder agrees not to seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with IOI seeking or obtaining such
equitable relief.
8. Reasonable Efforts. Each Stockholder will use all reasonable efforts to
cause to be satisfied the conditions to the obligations of the Company in such
Stockholder's control to effect the Closing under the Merger Agreement.
9. Publicity. Each Stockholder agrees that, from the date hereof through
the Closing Date, such Stockholder shall not issue any public release or
announcement concerning the transactions contemplated by this Agreement and the
Merger Agreement without the prior consent of IOI.
10. Term of Agreement; Termination.
(a) The term of this Agreement shall commence on the date hereof and
shall terminate upon the earliest to occur of (i) the Effective Time of the
Merger and (ii) the due and proper termination of the Merger Agreement in
accordance with its terms. Upon such termination, no party shall have any
further obligations or liabilities hereunder.
(b) The obligations of the Stockholders set forth in this Agreement
shall not be effective or binding upon any Stockholder until after such time as
the Merger Agreement is executed and delivered by IOI and the Company.
11. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement and
4
<PAGE> 5
supersedes all prior written and oral and all contemporaneous oral agreements
and understandings with respect to the subject matter of this Agreement.
(b) Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and shall be
deemed to have been duly given on the next business day after the same is sent,
if delivered personally or sent by telecopy or overnight delivery, or five
calendar days after the same is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid, as set forth below, or to such other
persons or addresses as may be designated in writing in accordance with the
terms hereof by the party to receive such notice.
If to IOI:
Integrated Orthopaedics, Inc.
1800 W. Loop South
Suite 1030
Houston, Texas 77027
Attention: Scott J. Hancock
Facsimile No: (713) 361-2000
with a copy to:
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201-6950
Attention: Michael A. Saslaw
Facsimile No: (214) 746-7777
If to a Stockholder, to the address set forth below such Stockholder's
name on Exhibit A hereto,
with a copy to:
Locke Liddell & Sapp LLP
3400 Chase Tower, Travis
Houston, Texas 77002-3095
Attention: David F. Taylor
Facsimile No: (713) 223-3717
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas as applied to contracts made and
fully performed in such state without giving effect to the principles of
conflict of laws thereof.
5
<PAGE> 6
(d) Rules of Construction. The descriptive headings in this Agreement
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement. Words used in
this Agreement, regardless of the gender and number specifically used, shall be
deemed and construed to include any other gender, masculine or feminine, or
neuter, and any other number, singular or plural, as the context requires. As
used in this Agreement, the word "including" is not limiting, and the word "or"
is not exclusive. Capitalized terms used herein but not otherwise defined herein
shall have the meanings given to them in the Merger Agreement.
(e) Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, and nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, but all such counterparts together shall constitute but one
instrument.
(g) Assignment. No party hereto shall assign its rights and obligations
under this Agreement or any part thereof, nor shall any party assign or delegate
any of its rights or duties hereunder without the prior written consent of the
other party, and any assignment made without such consent shall be void. Except
as otherwise provided herein, this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
(h) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
(i) Extension; Waiver. Any party to this Agreement may extend the time
for the performance of any of the obligations or other acts of any of the other
parties to this Agreement or waive compliance by any other party with any of the
agreements or conditions contained herein or any breach thereof. Any agreement
on the part of any party to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party.
(j) Severability. The provisions of this Agreement are severable and,
if any thereof are invalid or unenforceable in any jurisdiction, the same and
the other provisions hereof shall not be rendered otherwise invalid or
unenforceable.
6
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have duly executed this Voting Agreement as of the date first
above written.
INTEGRATED ORTHOPAEDICS, INC.
By:
------------------------------------------
Name:
Title:
---------------------------------------------
Robert W. Ohnesorge
---------------------------------------------
K. Wade Bennett
<PAGE> 8
EXHIBIT A
HOLDINGS OF COMMON STOCK AS OF SEPTEMBER 15, 2000
<TABLE>
<CAPTION>
<S> <C>
Name of Stockholder: Robert W. Ohnesorge
Address: c/o PowerBrief, Inc.
5858 Westheimer
Houston, Texas 77057
Telephone No.: (713) 526-4600
Facsimile No.: (713) 586-4790
Number of Shares of Common Stock: 5,625,000
Name of Stockholder: K. Wade Bennett
Address: c/o PowerBrief, Inc.
5858 Westheimer
Houston, Texas 77057
Telephone No.: (713) 526-4600
Facsimile No.: (713) 586-4790
Number of Shares of Common Stock: 5,625,000
</TABLE>
