EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
____________________
JD AMERICAN WORKWEAR, INC.
____________________
Electronically restated solely for purposes of Rule 102(b) of Regulation S-T
(Under Section 101 of the General Corporation Law of the State of Delaware)
* * * * * * * * * * * *
The undersigned, in order to form a corporation for the purposes
hereinafter stated pursuant to the provisions of the General Corporation Law
of the State of Delaware, does HEREBY CERTIFY AS FOLLOWS:
ARTICLE FIRST
NAME
1.1 The name of the corporation (hereinafter called the
"Corporation") is JD AMERICAN WORKWEAR, INC.
ARTICLE SECOND
NAME AND ADDRESS OF REGISTERED AGENT
2.1 The address of the Corporation's registered office in the State
of Delaware is 32 Lockerman Square, Suite L-100, Kent, County of Dover, zip
code 19901. The name of the Corporation's registered agent at such address
is Corporation Service Company.
ARTICLE THIRD
NATURE OF BUSINESS
3.1 The nature of the business or purposes to be conducted or
promoted by 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
CAPITAL STOCK
4.1 Authorized Stock. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is eight million
five hundred thousand (8,500,000) shares, which are to be divided into two
classes as follows:
7,500,000 shares of Common Stock, par value $.002 per share; and
1,000,000 shares of Preferred Stock, par value $.001 per share.
4.2 Designation of Relative Rights, Preferences and Qualifications of
Preferred Stock. The Board of Directors of the Corporation is authorized,
subject to limitations prescribed by law and the provisions of this Article,
to provide for the issuance from time to time in one or more series of any
number of the shares of Preferred Stock, and, by filing a certificate
pursuant to the Delaware General Corporation Law, to establish the number of
shares to be included in each such series, and to fix the designation,
relative rights, preferences, qualifications and limitations of the shares
of each such series. The authority of the Board of Directors with respect
to each series shall include, but not be limited to, determination of the
following:
(a) The number of shares constituting that series and
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and
whether they shall be payable in preference to, or in another relation to,
the dividends payable on any other class or classes or series of stock;
(c) Whether that series shall have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of such voting
rights;
(d) Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion or
exchange, including provision for adjustment of the conversion or exchange
rate in such events as the Board of Directors shall determine;
(e) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the manner of selecting shares for redemption if less than all
shares are to be redeemed, the date or dates upon or after which they shall
be redeemable, and the amount per share payable in case of redemption, which
amount may vary under different conditions and at different redemption
dates;
(f) Whether that series shall be entitled to the benefit of a
sinking fund to be applied to the purchase or redemption of shares of that
series, and, if so, the terms and amounts of such sinking fund;
(g) The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issue of any additional stock
(including additional shares of such series or of any other series) and upon
the payment of dividends or the making of other distributions on, and the
purchase or redemption or other acquisition by the Corporation or any
subsidiary of any outstanding stock of the Corporation;
(h) The rights of the shares of that series in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and whether such rights shall be in preference to, or in another
relation to, the comparable rights of any other class or classes or series
of stock; and
(i) Any other relative, participating, optional or other
special rights, qualifications, limitations or restrictions of that series.
4.3 Status of Redeemed Shares of Preferred Stock. Shares of any
series of Preferred Stock which have been redeemed (whether through the
operation of a sinking fund or otherwise) or which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock of
any other class or classes shall have the status of authorized and unissued
shares of Preferred Stock of the same series and may be reissued as a part
of the series of which they were originally a part or may be reclassified
and reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors or as part of any other
series of Preferred Stock, all subject to the conditions and the
restrictions on issuance set forth in the resolution or resolutions adopted
by the Board of Directors providing for the issue of any series of Preferred
Stock.
4.4 Common Stock Voting Rights. Subject to the provisions of any
applicable law, or except as otherwise provided by the resolution or
resolutions providing for the issue of any series of Preferred Stock, the
holders of outstanding shares of Common Stock shall exclusively possess
voting power for the election of directors and for all other purposes, each
holder of record of shares of Common Stock being entitled to one vote for
each share of Common Stock standing in his name on the books of the
Corporation.
4.5 Common Stock Dividends. Except as otherwise provided by the
resolution or resolutions providing for the issue of any series of Preferred
Stock, after payment shall have been made to the holders of Preferred Stock
of the full amount of dividends to which they shall be entitled pursuant to
the resolution or resolutions providing for the issue of any series of
Preferred Stock, the holders of Common Stock shall be entitled, to the
exclusion of the holders of preferred stock of any and all series, to
receive such dividends as from time to time may be declared by the Board of
Directors.
4.6 Rights of Common Stock Upon Liquidation, Etc. Except as
otherwise provided by the resolution or resolutions providing for the issue
of any series of Preferred Stock, in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of Preferred
Stock of the full amount to which they shall be entitled pursuant to the
resolution or resolutions providing for the issue of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the exclusion of
the holders of Preferred Stock of any and all series, to share, ratably
according to the number of shares of Common Stock held by them, in all
remaining assets of the Corporation available for distribution to its
stockholders.
4.7 Changes in Authorized Stock. The number of authorized shares of
any class may be increased or decreased by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to vote.
See Certificate of Designation of Series A 10% Mandatorily Convertible
Preferred Stock filed with the Secretary of State of the State of Delaware
on September 16, 1997 and incorporated by reference from Exhibit 4.12 to the
Corporation's Form 10-KSB for the period ended February 28, 1998, filed with
the Securities and Exchange Commission on June 12, 1998.
See Certificate of Designation of Series B 12% Cumulative Convertible
Preferred Stock filed with the Secretary of State of the State of Delaware
on April 9, 1998 and Certificate of Correction of Certificate of Designation
of Series B 12% Cumulative Convertible Preferred Stock filed with the
Secretary of State of the State of Delaware on April 13, 1998, incorporated
by reference from Exhibit 4.2 to Form 8-K filed with the Securities and
Exchange Commission on April 16, 1998.
ARTICLE FIFTH
MANAGEMENT
5.1 The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The Board of
Directors of the Corporation shall have at all times at least one (1)
director. The number of directors shall be determined in the manner
provided in the By-Laws.
ARTICLE SIXTH
DURATION OF EXISTENCE
6.1 The Corporation is to have perpetual existence.
ARTICLE SEVENTH
POWERS OF THE BOARD OF DIRECTORS
7.1 In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation without the assent or vote of the
stockholders.
ARTICLE EIGHTH
ELECTION OF DIRECTORS
8.1 Elections of directors need not be by written ballot unless the
By-Laws of the Corporation shall so provide.
8.2 Meetings of stockholders may be held within or without the State
of Delaware, as the By-laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the By-Laws of the Corporation.
ARTICLE NINTH
LIABILITY OF DIRECTORS
9.1 A director of the Corporation shall not be 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 or the law,
(iii) under Section 174 of the General Corporation Law of
Delaware, or
(iv) for any transaction from which the director derived an
improper personal benefit.
9.2 If the General Corporation Law of Delaware is amended, changed or
modified to authorize corporate action further eliminating or limiting the
personal liability of directors to the Corporation, its stockholders or
third parties, then the liability of the directors of the Corporation shall
be eliminated or limited to the fullest extent permitted by the General
Corporation Law of Delaware, as so amended, changed or modified. Any
repeal, amendment or modification of the provisions of this Article Ninth by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation relating to claims arising in
connection with events which took place prior to the date of such repeal,
amendment or modification.
ARTICLE TENTH
INDEMNIFICATION
10.1 The Corporation shall indemnify any person who was or is a party
or witness, or is threatened to be made a party or witness, to any
threatened, pending or completed action, suit or proceeding (including,
without limitation, an action, suit or proceeding by or in the right of the
Corporation), whether civil, criminal, administrative or investigative
(including a grand jury proceeding), by reason of the fact that he or she
(i) is or was a director or officer of the Corporation or, (ii) as a
director or officer of the Corporation, is or was serving at the request of
the Corporation as a director, officer, employee, agent, partner or trustee
(or in any similar position) of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, to the fullest
extent permitted by the General Corporation Law of Delaware and any other
applicable law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding, or in connection with any appeal thereof;
provided, however, that, except as provided in Section 10.2 of this Article
with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such person in connection with an action,
suit or proceeding (or part thereof) initiated by such person only if the
initiation of such action, suit or proceeding (or part thereof) was
authorized by the Board of Directors. Such right to indemnification shall
include the right to payment by the Corporation of expenses incurred in
connection with any such action, suit or proceeding in advance of its final
disposition; provided, however, that the payment of such expenses incurred
by a director or officer in advance of the final disposition of such action,
suit or proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it should be determined ultimately that such director
or officer is not entitled to be indemnified under this Article or
otherwise.
10.2 Any indemnification or advancement of expenses required under
this Article shall be made promptly, and in any event within sixty (60)
days, upon the written request of the person entitled thereto. If a
determination by the Corporation that the person is entitled to
indemnification pursuant to this Article is required, and the Corporation
fails to respond within sixty (60) days to a written request for indemnity,
the Corporation shall be deemed to have approved such request. If the
Corporation denies a written request for indemnity or advancement of
expenses, in whole or in part, of if payment in full pursuant to such
request is not made within sixty (60) days, the right to indemnification and
advancement of expenses as granted by this Article shall be enforceable by
the person in any court of competent jurisdiction. Such person's costs and
expenses incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action or
proceeding shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim
for advancement of expenses pursuant to this Article where the required
undertaking has been received by the Corporation) that the claimant has not
met the standard of conduct set forth in the General Corporation Law of
Delaware, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including the Board of
Directors, independent legal counsel or the stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of
Delaware, nor the fact that there has been an actual determination by the
Corporation (including the Board of Directors, independent legal counsel or
the stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
10.3 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to person who has ceased to be a director,
officer, employee or agent, and shall inure to the benefit of the heirs,
executors and administrators of such a person. Any repeal or modification
of the provisions of this Article Tenth shall not affect any obligations of
the Corporation or any rights regarding indemnification and advancement of
expenses of a director, officer, employee or agent with respect to any
threatened, pending or completed action, suit or proceeding for which
indemnification or the advancement of expenses is requested, in which the
alleged cause of action accrued at any time prior to such repeal or
modification.
10.4 The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this
Article, the General Corporation Law of Delaware or otherwise.
10.5 If this Article or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify each director and officer of the Corporation as
to expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including, without limitation, a
grand jury proceeding and an action, suit or proceeding by or in the right
of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated, by the General
Corporation Law of Delaware or by any other applicable law.
ARTICLE ELEVENTH
COMPROMISE WITH CREDITORS
11.1 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, in a summary
fashion, upon the application 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
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 a 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 to 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 this Corporation.
ARTICLE TWELFTH
CERTAIN BUSINESS COMBINATIONS
12.1 The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of the State of Delaware, as amended from
time to time, relating to business combinations with interested
stockholders.