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EXHIBIT 99.H
VOTING AGREEMENT
This Voting Agreement dated as of September 15, 2000 (this
"Agreement"), is made by and among PowerBrief, Inc., a Delaware corporation
(the "Company"), and each of the undersigned holders of shares of capital
stock (each, a "Stockholder" and collectively, the "Stockholders") of
Integrated Orthopaedics, Inc., a Texas corporation ("IOI").
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 IOI as provided in the Merger
Agreement, the Texas Business Corporation Act, as amended, and IOI's Articles
of Incorporation, as amended.
The Stockholders own the shares of IOI common stock, par
value $0.001 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 IOI's capital structure.
To induce the Company to enter into the Merger Agreement,
IOI 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 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 the Company 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 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 IOI in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of the Stockholder.
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2. THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The
Company hereby represents and warrants to the Stockholders as of the date
hereof that the Company 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 the Company, and the
consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
a valid and binding obligation of the Company 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 certificate of incorporation or bylaws of the Company, 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 the Company or to the Company'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 IOI 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 and the sale of the Westbank
Ambulatory Care Center and the reverse stock split contemplated in the Merger
Agreement, at every meeting of the stockholders of IOI 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 and the sale of the Westbank
Ambulatory Care Center and the reverse stock split contemplated in the Merger
Agreement is sought, and (y) against all other proposals submitted to the
stockholders of IOI which, directly or indirectly, would reasonably be expected
to prevent or materially delay the consummation of the Merger or the
transactions contemplated by the Merger Agreement, in such manner as the Company
may direct; and
(ii) not to solicit, encourage or recommend to other stockholders of
IOI that (w) they vote their shares of Common Stock 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 at all, (y)
they tender, exchange or otherwise dispose of their shares of Common 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.
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(b) Unless otherwise instructed in writing by the Company, during the
term of this Agreement, each Stockholder will vote the Shares against any
Competing Transaction.
(c) Except with the prior written consent of the Company, 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 IOI
outside the ordinary course of business, or sale or exchange by stockholders of
IOI of all or substantially all the shares of IOI's capital stock) proposed by
any person(s).
5. PROXIES. In furtherance of the foregoing, each Stockholder
is granting to Ernest D. Rapp, the Chief Executive Officer of the Company,
and/or Robert W. Ohnesorge, the President of the Company, or to his 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 the
Company 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 IOI, notice of which
meetings are given prior to the due and proper termination of this Agreement,
with respect to matters presented to IOI's stockholders for a vote which relates
to or affects (i) the Merger or the Merger Agreement or the sale of the Westbank
Ambulatory Care Center or the reverse stock split contemplated in the Merger
Agreement or the approval of any of them; and (ii) any Competing Transaction; or
(b) with respect to actions to be taken by written consent of the
stockholders of IOI 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 the Company if the
Stockholder fails to comply with the obligations imposed by this Agreement, and
that, in the event of any such failure, the Company 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 the Company 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 the
Company seeking or obtaining such equitable relief.
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8. REASONABLE EFFORTS. Each Stockholder will use all
reasonable efforts to cause to be satisfied the conditions to the obligations of
IOI 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 the Company.
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
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 the Company:
PowerBrief, Inc.
5858 Westheimer
Suite 500
Houston, Texas 77057
Attention: Robert W. Ohnesorge
Facsimile No: (713) 586-4790
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with a copy to:
Locke Liddell & Sapp LLP
3400 Chase Tower, 600 Travis
Houston, Texas 77002-3095
Attention: David F. Taylor
Facsimile No: (713) 223-3717
If to a Stockholder, to the address set forth below such Stockholder's name on
EXHIBIT A hereto,
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
(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.
(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.
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(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.
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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.
POWERBRIEF, INC.
By: /s/ Ernest D. Rapp
--------------------------
Name: Ernest D. Rapp
Title: C.E.O
FW INTEGRATED ORTHOPAEDICS INVESTORS, L.P.
By: GROUP 31, INC.,
its General Partner
By: /s/ Kevin G. Levy
-------------------------
Name: Kevin G. Levy
Title: Vice President
FW INTEGRATED ORTHOPAEDICS INVESTORS II, L.P.
By: FW GROUP GENPAR, INC.,
its General Partner
By: /s/ Kevin G. Levy
--------------------------
Name: Kevin G. Levy
Title: Vice President
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CHARTWELL CAPITAL INVESTORS, L.P.
By: CHARTWELL CAPITAL PARTNERS, L.P.,
its General Partner
By: CHARTWELL PARTNERS, L.P.,
its General Partner
By: CHARTWELL, Inc.,
its General Partner
By: /s/ Mindy Lanigan
-----------------
Name: Mindy Lanigan
Title: Vice President
/s/ Jose E. Kauachi
-------------------
Jose E. Kauachi
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EXHIBIT A
HOLDINGS OF COMMON STOCK AS OF SEPTEMBER 15, 2000
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Name of Stockholder: FW Integrated Orthopaedics Investors, L.P.
Address: 201 Main Street, Suite 3100
Fort Worth, Texas 76102
Telephone No.: (817) 390-8503
Facsimile No.: (817) 338-2067
Number of Shares of Common Stock: 10,640,962
Name of Stockholder: FW Integrated Orthopaedics Investors II,
L.P.
Address: 201 Main Street, Suite 3100
Fort Worth, Texas 76102
Telephone No.: (817) 390-8503
Facsimile No.: (817) 338-2067
Number of Shares of Common Stock: 10,640,962
Name of Stockholder: Chartwell Capital Investors, L.P.
Address: One Independent Drive
Suite 3120
Jacksonville, FL 32202
Telephone No.: (904) 355-3519
Facsimile No.: (904) 353-5833
Number of Shares of Common Stock: 2,373,863
Name of Stockholder: Jose E. Kauachi
Address: 245 Castle Ridge
Edwards, Colorado 81632
Telephone No.: (970) 926-8595
Facsimile No.: (970) 926-8550
Number of Shares of Common Stock: 1,162,537
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IRREVOCABLE PROXY AND POWER OF ATTORNEY
The undersigned hereby appoints Ernest D. Rapp, the Chief Executive Officer of
PowerBrief, Inc. (the "Company"), and/or Robert W. Ohnesorge, the President of
the Company, as the undersigned's attorney-in-fact and proxy, with full power of
substitution, for and in the undersigned's name, to vote, express consent or
disapproval, or otherwise act (including pursuant to written consent, but
excluding the right to assert, perfect and prosecute dissenters' rights of
appraisal) in accordance with Paragraphs 4(a) and 4(b) of the Voting Agreement
with respect to all of the shares of Common Stock, par value $0.001 per share,
of Integrated Orthopaedics, Inc., a Texas corporation ("IOI"), owned of record
by the undersigned. The proxy granted hereby shall be irrevocable and may be
exercised at any meeting of stockholders, notice of which is given, or in
respect of any written consent which is solicited prior to the due and proper
termination of, and subject to and in accordance with the terms and conditions
of, the Voting Agreement, dated of even date herewith, among the undersigned,
the Company and the stockholders of IOI signatory thereto. This proxy is coupled
with an interest sufficient in law to support such proxy.
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Dated: September 15, 2000 CHARTWELL CAPITAL INVESTORS, L.P.
By: CHARTWELL CAPITAL PARTNERS, L.P., its General Partner
By: CHARTWELL PARTNERS, L.P., its General Partner
By: CHARTWELL, Inc., its General Partner
By: /s/ Mindy Lanigan
--------------------------
Name: Mindy Lanigan
Vice President
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