APPENDIX A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INNOVO GROUP INC.
It is hereby certified that:
1. (a) The present name of the corporation is Innovo Group Inc. (the
"Corporation").
(b) The name under the Corporation was originally incorporated is Elorac
Corporation and the date of filing the original Certificate of Incorporation of
the Corporation with the Secretary of State of the State of Delaware is December
18, 1987.
2. The Certificate of Incorporation of the Corporation is hereby amended
by striking out Articles First, Fourth, Sixth, Seventh, Eighth, Ninth and Tenth
thereof and by substituting in lieu thereof new Articles First, Fourth, Sixth,
Seventh, Eighth, Ninth and Tenth, which are set forth in the Amended and
Restated Certificate of Incorporation hereinafter provided for.
3. The provisions of the Certificate of Incorporation of the corporation
as heretofore amended and/or supplemented, and as herein amended, are hereby
restated and integrated into the single instrument which is hereinafter set
forth, and which is entitled Amended and Restated Certificate of Incorporation
of Innovo Group Inc. without any further amendment other than the amendments
herein certified and without any discrepancy between the provisions of the
Certificate of Incorporation as previously amended and supplemented and the
provisions of the said single instrument hereinafter set forth.
4. The amendments and the restatement of the Certificate of Incorporation
herein certified have been duly adopted in writing by the stockholders in
accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the state of Delaware. Prompt written notice of the adoption
of the amendments and of the restatement of the Certificate of Incorporation
herein certified has been given to those stockholders who have not consented in
writing thereto, as provided in Section 228 of the General Corporation Law of
the state of Delaware.
5. The Certificate of Incorporation of the Corporation, as amended and
restated and restated herein, shall read as follows:
FIRST: The name of the corporation is INNOVO GROUP INC. (the
"Corporation").
SECOND: The address, including street, number, city and
county, of the registered office of the Corporation in the State of Delaware is
32 Lockerman Square, Suite L-100, Dover, Delaware 19901, County of Kent. The
name of the registered agent of the Corporation at such address is The Prentice
- -Hall Corporation System, Inc.
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.
FOURTH: The maximum number of shares, comprising the total
authorized capital stock of the corporation that the Corporation shall have
authority to issue is:
(a) Seventy million (70,000,000) of Common Stock, par value $.01 per
share, all such hares having unlimited voting rights as a class with each share
entitled to one (1) vote per share, and such class of shares being entitled to
receive the remaining net assets of the Corporation upon dissolution subject to
the rights of holders of any Preferred Stock having a liquidation preference
over the Common Stock which may be issued; and
(b) Ten million (10,000,000) shares of Preferred Stock, which shares
shall be entitled to such preferences in the distribution of dividends and
assets, and shall be divided by the Board of Directors of the Corporation into
such series, as determined by the Board of Directors of the Corporation, with
full authority in the Board of Directors to determine the relative voting
powers, designations, rights and preferences or any other matter that lawfully
may be determined by the Board of Directors with respect to the shares of any
such series.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or between
this 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 this Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of Section 291 of Title 8 of Delaware Code order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this 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 this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
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 this Corporation, as the case may be, and also on this
Corporation.
SEVENTH: 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 of its stockholders or
any class thereof, as the case may be, it is further provided:
(a) The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board"
and the phrase "total number of directors" shall be deemed to have the same
meaning, to wit, the total number of directors which the Corporation would have
if there were no vacancies. No election of directors need by written ballot.
(b) The power to adopt, amend, or repeal the Bylaws of
the Corporation may be exercised by the Board of Directors of the Corporation,
provided, however, that the Board of Directors may not amend the Bylaws to take
any action that is reserved exclusively by the Shareholders pursuant to the
Delaware General Corporation Law.
(c) Whenever the Corporation shall be authorized to
issue only one class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at, any meeting of stockholders.
Whenever the Corporation shall be authorized to issue more than one class of
stock, no outstanding share of any class of stock which is denied voting power
under the provisions of this Certificate of Incorporation shall be entitle the
holder thereof to the right to vote at any meeting of stockholders except as the
provisions of paragraph (2) of subsection (b) of Section 242 of the General
Corporation Law of the State of Delaware shall otherwise require; provided,
that no share of any such class which is otherwise denied voting power shall
entitle the holder thereof to vote upon the increase or decrease (but not below
the number of shares thereof outstanding) in the number of authorized shares of
said class.
EIGHTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of the
subsection (b) of Section 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
NINTH: (a) The Corporation shall, in the manner and to the full
extent permitted by Section 145 of the General Corporation Law of the state of
Delaware, as the same may be amended and supplemented, indemnify any officer or
director (or the estate of any such person) who was or is a party to, or is
threatened, to be made a party to, any threatened, pending or complete action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, trustee or employee of another
corporation, partnership, joint venture, trust or other enterprise (an
"indemnitee"). To the full extent permitted by law, the indemnification and
advances provided for herein shall include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement. Notwithstanding the foregoing,
the Corporation shall not indemnify any such indemnitee (1) in any proceeding by
the Corporation against such indemnitee; (2) in the event the board of directors
determines that indemnification is not available under the circumstances because
the officer or director has not met the standard of conduct set forth in Section
145 of the Delaware General Corporation Law; or (3) if a judgment or other final
adjudication adverse to the indemnitee establishes his liability (i) for any
breach of the duty of loyalty to the Corporation or its shareholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, or (iii) under Section 174 of the Delaware General
Corporation Law.
(b) The right to indemnification conferred in Section (a) of this
Article NINTH shall include the right to be paid by the Corporation the expenses
(including attorneys' fees) incurred in defending any such proceeding in advance
of its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, and advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking, by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this Section (b) or otherwise. The rights to
indemnification and to the advancement of expenses conferred in Sections (a) and
(b) of this Article NINTH shall be contract rights and such rights shall
continue as to an indemnitee who has ceased to be a director or officer and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators.
(c) The rights to indemnification and to the advancement of
expenses conferred in this Article NINTH shall not be exclusive of any other
right which any indemnitee may have or hereafter acquire under any statute, the
Corporation's Amended and Restated Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in such indemnitee's official capacity and as to action in another
capacity while holding such office.
(d) The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
(e) The Corporation may, to the extent authorized from time
to time by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article NINTH with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
TENTH: No amendment to or repeal of Article EIGHT or NINTH of this
Amended and Restated Certificate of Incorporation shall apply to or have any
effect on the rights of any individual referred to in Article EIGHT or NINTH for
or with respect to acts or omissions of such individual occurring prior to such
amendment or repeal.
ELEVENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered 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
Article ELEVENTH.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been executed by its President and attested by its Secretary,
this ______ day of _________________, 1997.
INNOVO GROUP INC.
By:_________________________
President
ATTEST:
_________________________
Secretary