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EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
OF
DJ ORTHOPEDIC CAPITAL CORPORATION
DJ Orthopedic Capital Corporation (hereinafter called the "Company"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify:
1. The current name of the Company is DJ Orthopedic Capital Corporation.
2. The Certificate of Incorporation of the Company filed on March 22,
1999 is hereby amended by deleting ARTICLE FIRST in its entirety and replacing
it with the following:
ARTICLE FIRST
The name of the corporation (herein called the "Corporation") is
DJ ORTHOPEDICS CAPITAL CORPORATION.
IN WITNESS WHEREOF, the undersigned has executed this certificate
this 4th day of June, 1999.
/s/ Todd H. Greene
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Name: Todd H. Greene
Title: Sole Incorporator
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CERTIFICATE OF INCORPORATION
OF
DJ ORTHOPEDIC CAPITAL CORPORATION
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ARTICLE FIRST
The name of the corporation (herein called the "Corporation") is
DJ Orthopedic Capital Corporation.
ARTICLE SECOND
The address of the registered office of the Corporation in the State of
Delaware is 9 East Loockerman Street, City of Dover, County of Kent, 19901. The
name of the registered agent of the Corporation at such address is National
Registered Agents, Inc.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE FOURTH
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 1,000 shares, all of which shall be
of one class, shall be designated Common Stock and shall have a par value of
$.01 per share.
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ARTICLE FIFTH
The name and mailing address of the incorporator is as follows:
Name Mailing Address
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Todd H. Greene, Esq. c/o O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza
New York, New York 10112
ARTICLE SIXTH
The number of directors of the Corporation shall be such as from
time to time shall be fixed in the manner provided in the By-laws of the
Corporation. The election of directors of the Corporation need not be by ballot
unless the By-laws so require.
ARTICLE SEVENTH
A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after the
date of incorporation of the Corporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
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Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE EIGHTH
For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders, it is
further provided:
(a) In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is expressly
authorized and empowered:
(i) to make, alter, amend or repeal the By-laws in any
manner not inconsistent with the laws of the State of Delaware or
this Certificate of Incorporation;
(ii) without the assent or vote of the stockholders, to
authorize and issue securities and obligations of the Corporation,
secured or unsecured, and to include therein such provisions as to
redemption, conversion or other terms thereof as the Board of
Directors in its sole discretion may determine, and to authorize
the mortgaging or pledging, as security therefor, of any property
of the Corporation, real or personal, including after-acquired
property;
(iii) to determine whether any, and if any, what part, of
the net profits of the Corporation or of its surplus shall be
declared in dividends and paid to the stockholders, and to direct
and determine the use and disposition of any such net profits or
such surplus; and
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(iv) to fix from time to time the amount of net profits of
the Corporation or of its surplus to be reserved as working
capital or for any other lawful purpose.
In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the laws of the
State of Delaware, of this Certificate of Incorporation and of the
By-laws of the Corporation.
(b) Any director or any officer elected or appointed by the
stockholders or by the Board of Directors may be removed at any time in
such manner as shall be provided in the By-laws of the Corporation.
(c) From time to time any of the provisions of this Certificate of
Incorporation may be altered, amended or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may
be added or inserted, in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the stockholders of the
Corporation by this Certificate of Incorporation are granted subject to
the provisions of this paragraph (c).
ARTICLE NINTH
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of the Delaware General Corporation Law or on the
application of trustees in
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dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the Delaware General Corporation Law order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree on any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
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IN WITNESS WHEREOF, I, the undersigned, being the sole
incorporator hereinabove named, for the purpose of forming a corporation
pursuant to the General Corporation Law of the State of Delaware, DO HEREBY
CERTIFY, under penalties of perjury, that this is my act and deed and that the
facts hereinabove stated are truly set forth and, accordingly, I have hereunto
set my hand as of the 22nd day of March, 1999.
/s/ Todd H. Greene
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Todd H. Greene
Sole Incorporator