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EXHIBIT 3.1
FORM OF
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
THE PLASTIC SURGERY COMPANY
1.
The name of the Corporation is the Plastic Surgery Company.
2.
Section 2.1. Common Stock. The aggregate number of common
shares (referred to in these Articles of Incorporation as "Common Stock") which
the Corporation shall have the authority to issue is 100,000,000, with no par
value per share. Each share of Common Stock shall have one vote on each matter
submitted to a vote of the shareholders of the Corporation. Subject to the
provisions of applicable law and the rights of the holders of the outstanding
shares of Preferred Stock, if any, the holders of shares of Common Stock shall
be entitled to receive, when and as declared by the Board of Directors of the
Corporation, out of the assets of the Corporation legally available therefor,
dividends or other distributions, whether payable in cash, property or
securities of the Corporation. The holders of shares of Common Stock shall be
entitled to receive, in proportion to the number of shares of Common Stock held,
the net assets of the Corporation upon dissolution after any preferential
amounts required to be paid or distributed to holders of outstanding shares of
Preferred Stock, if any, are so paid or distributed.
Section 2.2. Preferred Stock. The aggregate number of
preferred shares (referred to in these Articles of Incorporation as "Preferred
Stock") which the Corporation shall have authority to issue is 20,000,000, with
no par value per share. The Preferred Stock may be issued from time to time by
the Board of Directors as shares of one or more series. The description of
shares of each series of Preferred Stock, including any designations,
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption shall be as set forth in resolutions adopted by the Board of
Directors, and articles of amendment shall be filed with the Georgia Secretary
of State as required by law to be filed with respect to issuance of such
Preferred Stock, prior to the issuance of any shares of such series.
The Board of Directors is expressly authorized, at any time,
by adopting resolutions providing for the issuance of, or providing for a change
in the number of, shares of
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any particular series of Preferred Stock and, if and to the extent from time to
time required by law, by filing articles of amendment which are effective
without shareholder action, to increase or decrease the number of shares
included in each series of Preferred Stock, but not below the number of shares
then issued, and to set in any one or more respects the designations,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms and conditions of
redemption relating to the shares of each such series. The authority of the
Board of Directors with respect to each series of Preferred Stock shall include,
but not be limited to, setting or changing the following:
(i) the dividend rate, if any, on shares of such series,
the times of payment and the date from which dividends shall be
accumulated, if dividends are to be cumulative;
(ii) whether the shares of such series shall be redeemable
and, if so, the redemption price and the terms and conditions of such
redemption;
(iii) the obligation, if any, of the Corporation to redeem
shares of such series pursuant to a sinking fund;
(iv) whether shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or
classes and, if so, the terms and conditions of such conversion or
exchange, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
(v) whether the shares of such series shall have voting
rights, in addition to the voting rights provided by law, and, if so,
the extent of such voting rights;
(vi) the rights of the shares of such series in the event
of voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation; and
(vii) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating to such
series.
3.
No shareholder shall have any preemptive right to subscribe
for or to purchase any shares or other securities issued by the Corporation.
4.
Section 4.1. Personal Liability of Directors. No director of
the Corporation shall be personally liable to the Corporation or its
shareholders for monetary damages for breach of duty of care or other duty as a
director, except for liability (i) for any appropriation, in violation of the
director's duties, of any business opportunity of the Corporation, (ii) for acts
or omissions
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which involved intentional misconduct or a knowing violation of law, (iii) for
the types of liabilities set forth in Section 14-2-832 of the Georgia Business
Corporation Code, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Georgia Business Corporation Code is amended
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 Georgia
Business Corporation Code, as amended.
Section 4.2. Effect of Repeal or Modification. Neither the
repeal or modification of this Article 4 nor the adoption of any provision of
these Articles of Incorporation inconsistent with these Articles shall eliminate
or adversely affect any right or protection of a director of the Corporation
existing immediately prior to such repeal, modification or adoption.
5.
Section 5.1. Number and Term of Directors. Subject to the
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the Board of Directors of the
Corporation shall have up to nine members with the exact number to be determined
from time to time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board. Each director shall serve for a term
as described in Section 5.2.
Section 5.2. Classified Board. The directors of the
Corporation (other than any directors who may be elected by holders of any
series of Preferred Stock then outstanding) shall be and are divided into three
classes: Class I, Class II and Class III. The number of directors in each class
shall be as nearly equal as the then-authorized number of directors constituting
the Board of Directors permits. Each director shall serve for a term ending on
the date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that the directors first elected to
Class I shall serve for a term ending on the date of the annual meeting next
following the end of the calendar year 1999, the directors first elected to
Class II shall serve for a term ending on the date of the second annual meeting
next following the end of the calendar year 1999, and the directors first
elected to Class III shall serve for a term ending on the date of the third
annual meeting next following the end of the calendar year 1999. Any director
who may be elected by holders of any series of Preferred Stock then outstanding
shall serve for a term ending on the date of the next annual meeting following
the annual meeting at which such director was elected.
Section 5.3. Increase or Decrease in Authorized Number of
Directors. In the event of any increase or decrease in the authorized number of
directors:
(a) Each director then serving shall nevertheless
continue as a director of the class of which he is a member until the
expiration of his term, or his prior death, retirement, resignation or
removal; and
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(b) Newly-created or eliminated directorships resulting
from any increase or decrease shall be apportioned by the Board of
Directors among the three classes so as to keep the number of directors
in each class as nearly equal as possible.
Section 5.4. Removal. Subject to the rights of the holders of
any series of Preferred Stock then outstanding, any or all directors may be
removed from office at any time with or without cause, but only by the same
affirmative vote of the shareholders required to amend this Article 5 as
provided in Article 8 of these Articles of Incorporation.
Section 5.5. Vacancies. Subject to the rights of the holders
of any series of Preferred Stock then outstanding to fill director vacancies,
vacancies on the Board of Directors (including vacancies resulting from
retirement, resignation, removal from office or death) shall be filled
exclusively by action of a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum. Any director so elected
shall hold office until the next annual meeting of shareholders.
6.
In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the Corporation, the
Board of Directors, committees of the Board of Directors, and individual
directors, in addition to considering the effects of any action on the
Corporation or its shareholders, may consider the interests of the employees,
customers, suppliers and creditors of the Corporation and its subsidiaries, the
communities in which offices or other establishments of the Corporation and its
subsidiaries are located, and all other factors the Board of Directors,
committees of the Board of Directors and such individual directors consider
pertinent; provided, however, that this provision solely grants discretionary
authority to the directors and no constituency shall be deemed to have been
given any right to consideration hereby.
7.
The mailing address of the principal office of the Corporation
is 104 West Anapamu Street, Suite G, Santa Barbara, California 93101.
8.
Notwithstanding any provision of law to the contrary, the
affirmative vote of greater than fifty percent (50%) of all of the votes
entitled to be cast on the matter shall be necessary, after due authorization,
approval or advice of such action by the Board of Directors, as required by law,
to approve and authorize the following acts of the Corporation:
a. amendment of the Articles of Incorporation of the
Corporation;
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b. a Change in Control of the Corporation. "Change of Control"
shall mean (x) any merger or consolidation of the Corporation with any other
business entity (other than a merger in which the Corporation is the surviving
corporation and as a result of which persons who owned beneficially a majority
in voting power of the outstanding voting capital stock of the Corporation
immediately prior to the merger continue to own beneficially, in substantially
the same proportions, a majority in voting power of the outstanding voting
capital stock of the Corporation immediately after such merger), or (z) any
sale, lease, transfer or other disposition of all or substantially all the
assets of the Corporation;
c. the voluntary liquidation, dissolution or winding-up of the
Corporation; or
d. any other transaction that Section 14-2-1110 of the Georgia
Business Corporation Code defines as a "Business Combination."