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EXHIBIT 3.3
AMENDED AND RESTATED ARTICLES OF INCORPORATION
1. Integrated Orthopaedics, Inc. (the "Corporation"), pursuant to the
provisions of Article 4.07 of the Texas Business Corporation Act, hereby adopts
amended and restated articles of incorporation which accurately copy the
articles of incorporation and all amendments thereto that are in effect to date
(collectively, the "Articles of Incorporation") and as further amended by such
amended and restated articles of incorporation as hereinafter set forth and
which contain no other change in any provision thereof. The Articles of
Incorporation are being amended in their entirety by these amended and restated
articles of incorporation.
2. Each such amendment made by these amended and restated articles of
incorporation has been effected in conformity with the provisions of the Texas
Business Corporation Act, and such amended and restated articles of
incorporation and each such amendment made by the amended and restated articles
of incorporation were duly adopted by the shareholders of the Corporation on the
_____ day of _________, 2001.
3. The number of shares of common stock outstanding was _____________;
the number of shares of common stock entitled to vote on the amended and
restated articles of incorporation as so amended was __________; the number of
shares voted for such amended and restated articles as so amended was
_____________; and the number of shares voted against such amended and restated
articles as so amended was _____________.
4. In connection with the amendment and restatement of the Articles of
Incorporation of the Corporation, the Corporation is effecting a 1.0 for 5.0
reverse stock split of the Common Stock that results in a decrease in the
outstanding shares of Common Stock of the Corporation in the following manner:
Upon the filing of this amended and restated articles of incorporation,
each share of the Common Stock, par value $0.001 per share ("Old Common Stock"),
of the Corporation authorized and outstanding immediately prior to the
effectiveness of the merger of PowerBrief, Inc., a Delaware corporation, with
and into the Corporation shall be automatically converted into, and deemed for
all purposes to be, 0.20 of a share of Common Stock, par value $0.001 per share
("New Common Stock"), of the Corporation, and written notice thereof shall
forthwith be given by the Secretary of the Corporation to the holders of the
outstanding shares of the Old Common Stock in person or at their latest
addresses reflected on the records of the Corporation, together with notice of
the procedures hereinafter specified for exchange or replacement of the
certificates representing shares of the Old Common Stock. Upon surrender of the
certificate(s) representing shares of such stock by the registered holder
thereof in properly endorsed and due form for exchange and cancellation
(together with all necessary stock powers and other appropriate documentation),
or upon receipt of evidence reasonably satisfactory to the executive officers of
the Corporation of the loss, theft, or destruction of the certificate(s)
therefor from the registered holder of such stock (together with delivery of an
indemnity bond in appropriate amount, payable to the Corporation, if the
executive officers shall so require it in their reasonable judgment), the
transfer agent of the Corporation shall accept and cancel the certificate(s)
surrendered, if applicable, and shall issue to such holder certificate(s),
endorsed with such legends as are required or are appropriate, in such
denominations as such holder may request, amounting to 0.20 shares of the New
Common Stock for every one share of the Old Common Stock as shall have been
surrendered or for which satisfactory evidence of loss, theft, or destruction
shall have been received; provided, however, that any fractional shares of New
Common Stock resulting from such conversion (calculated per record holder of Old
Common Stock based on the aggregate number of shares of New Common Stock such
holder is entitled to receive as a result of the reverse stock split) shall be
cancelled, and, in lieu thereof, the holder of such fractional share shall be
paid cash in an amount equal to the product obtained by multiplying (a) five
times the average of the daily high and low sales prices, regular way, of one
share of Old 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 the 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
effectiveness of this amendment and restatement, by (b) the fraction resulting
from such conversion. The Company's exchange agent shall enter the fact of
cancellation of the old share certificate(s) for Old Common Stock and the
issuance of the new certificate(s) for New Common Stock and the appropriate name
or names of the holders of such shares represented by the new certificate(s) on
its stock records and transfer books. To the extent that the holders of the
shares of the Old Common Stock shall not present their shares for exchange in
the manner specified above, such failure to act shall in no circumstance affect
their status as holders of the New Common Stock or the validity of their shares,
except that each certificate they hold after the effective date of this
amendment and restatement that prior thereto represented shares of the Old
Common Stock shall be deemed to represent the appropriate number as determined
above of the authorized and outstanding shares of the New Common Stock for every
purpose, or, in the case of fractional shares of New Common Stock, shall be
deemed to represent the right to receive cash in lieu thereof as determined
above.
5. The Articles of Incorporation are hereby superseded by the following
amended and restated articles of incorporation which accurately copy the entire
text thereof, as amended as set forth in these amended and restated articles of
incorporation:
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
POWERBRIEF, INC.
ARTICLE I
The name of the corporation is PowerBrief, Inc.
ARTICLE II
The period of its duration is perpetual.
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ARTICLE III
The purpose for which the corporation is organized is to transact any
or all lawful business for which corporations may be incorporated under the
Texas Business Corporation Act.
ARTICLE IV
The aggregate number of shares which the corporation shall have
authority to issue is 120,000,000, consisting of: one class of 100,000,000
shares of common stock with par value of $0.001 per share, and one class of
20,000,000 shares of preferred stock with par value of $0.001 per share.
Cumulative voting of the shares is expressly prohibited. No shareholder or other
person shall have any preemptive rights whatsoever.
The board of directors is authorized, from time to time, to divide the
preferred stock into series, to fix and determine separately for each series any
or all of the relative rights and preferences, to issue shares of any series
then or previously designated, fixed and determined, and to increase or decrease
the number of shares within any series (but not below the number of shares then
outstanding). The relative rights and preferences of shares of preferred stock
may vary between series in any and all respects. The number of authorized shares
of preferred stock may also be increased or decreased (but not below the number
of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the stock of the corporation entitled to vote, unless a vote of any
other holders is required pursuant to a certificate or certificates establishing
a series of preferred stock.
Except as otherwise expressly provided in any certificate of
designation designating any series of preferred stock pursuant to the foregoing
provisions of this Article IV, any new series of preferred stock may be
designated, fixed and determined as provided herein by the board of
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directors without approval of the holders of common stock or the holders of
preferred stock, or any series thereof, and any such series may have powers,
preferences and rights, including, without limitation, voting rights, dividend
rights, liquidation rights, redemption rights and conversion rights, senior to,
junior to or equal to the rights of the common stock, the preferred stock, or
any future class or series of preferred stock or common stock.
ARTICLE V
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done or property actually received.
ARTICLE VI
Directors need not be elected by written ballot unless required by the
bylaws of the corporation.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to adopt, amend or
repeal bylaws of the corporation.
ARTICLE VIII
The corporation reserves the right to amend or repeal any provision
contained in these amended and restated articles of incorporation in the manner
now and hereafter prescribed by statute. All rights conferred upon shareholders
herein are granted subject to this reservation.
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ARTICLE IX
The street address of the corporation's registered office is 5858
Westheimer, Suite 550, Houston, Texas 77057.
The name of its registered agent at such address is Robert W.
Ohnesorge.
ARTICLE X
The number of directors constituting the board of directors is seven.
The names and addresses of the persons now serving as directors until
the next annual meeting of shareholders or until their successors be elected and
qualify are as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Robert W. Ohnesorge 5858 Westheimer, Suite 550
Houston, Texas 77057
Wade Bennett 5858 Westheimer, Suite 550
Houston, Texas 77057
Ernest D. Rapp 5858 Westheimer, Suite 550
Houston, Texas 77057
Richard V. Bays 5858 Westheimer, Suite 550
Houston, Texas 77057
Scott Hancock 5858 Westheimer, Suite 550
Houston, Texas 77057
5858 Westheimer, Suite 550
---------------- Houston, Texas 77057
5858 Westheimer, Suite 550
---------------- Houston, Texas 77057
</TABLE>
ARTICLE XI
No director shall be liable to the corporation or its shareholders for
monetary damages for an act or omission in the director's capacity as a
director, except for liability of a director for (i) a
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breach of a director's duty of loyalty to the corporation or its shareholders,
(ii) an act or omission not in good faith that constitutes a breach of duty of
the directors to the corporation or an act or omission that involves intentional
misconduct or a knowing violation of the law, (iii) an act or omission for which
the liability of a director is expressly provided by applicable statute, or (iv)
a transaction from which a director received an improper benefit, whether or not
the benefit resulted from an action taken within the scope of the director's
office. If the Texas Business Corporation Act, the Texas Miscellaneous
Corporation Laws Act, or other applicable law is amended to authorize corporate
action further eliminating or limiting the liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the Texas Business Corporation Act, the Texas
Miscellaneous Corporation Laws Act, or other applicable law, as so amended. Any
repeal or modification of the foregoing paragraph by the shareholders shall not
adversely affect any right or protection of a director existing at the time of
such repeal or modification.
Dated: , 2001.
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INTEGRATED ORTHOPAEDICS, INC.
By:
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Its Authorized Officer
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