EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
PERISCOPE SPORTSWEAR, INC.
The undersigned, being a natural person, solely for the purpose of
organizing a corporation under the provisions and subject to the requirements of
the laws of the State of Delaware (particularly Chapter 1, Title 8 of the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known, identified and referred to as the "General Corporation Law of the State
of Delaware"), hereby certifies that:
FIRST: The name of the corporation is Periscope Sportswear, Inc.
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(hereinafter called the "Corporation").
SECOND: The address of the registered office of the Corporation in the
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State of Delaware is 9 East Loockerman Street, Dover, Delaware 11901. The name
of the registered agent of the Corporation at such address is National
Registered Agents, Inc. The Corporation's principle executive offices are
located 1407 Broadway, Suite 620, New York, New York 10018.
THIRD: The purpose of the Corporation is to engage in any lawful act or
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activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which this
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Corporation shall have authority to issue is 35,000,000 shares, consisting of
(i) 30,000,000 shares of Common Stock, $.001 par value per share ("Common
Stock"), and (ii) 5,000,000 shares of Preferred Stock, $.001 par value per share
("Preferred Stock").
The following is a statement of the designations and the powers, privileges
and rights, and the qualifications, limitations or restrictions thereof in
respect of each class of capital stock of this Corporation.
(A) COMMON STOCK.
1. General. All shares of Common Stock are of one class. All authorized
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and outstanding shares of Common Stock are to be fully paid and non-
assessable. The Common Stock has no preemptive, conversion or other
subscription rights to subscribe for any shares of any class of stock
of this Corporation, whether
now or hereafter authorized. The holders of Common Stock are entitled
to one vote for each share held of record on all matters submitted to
a vote of stockholders. The voting, dividend and liquidation rights of
the holders of the Common Stock are subject to and qualified by the
rights of the holders of the Preferred Stock of any series as may be
designated by the Board of Directors upon any issuance of the
Preferred Stock of any series.
2. No Pre-emptive Rights. No holder of any of the shares of the Common
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Stock of the Corporation, whether now or hereafter authorized and
issued, shall be entitled as of right to purchase or subscribe for (1)
any unissued stock of any class, or (2) any additional shares of any
class to be issued by reason of any increase of the authorized capital
stock of the Corporation of any class, or (3) bonds, certificates of
indebtedness, debentures or other securities convertible into stock of
the Corporation, or carrying any right to purchase stock of any class,
but any such unissued stock or such additional authorized issue of any
stock or of other securities convertible into stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms,
partnerships, corporations, associations or other entities and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its discretion.
3. Voting. The holders of the Common Stock are entitled to one vote for
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each share held at all meetings of stockholders. There shall be no
cumulative voting. The number of authorized shares of Common Stock
may 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 this Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the General
Corporation Law of the State of Delaware.
4. Dividends. Dividends may be declared and paid on the Common Stock
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from funds lawfully available therefor as and when determined by the
Board of Directors and subject to any preferential dividend rights of
any then outstanding Preferred Stock.
5. Liquidation. Upon the dissolution or liquidation of this Corporation,
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whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of this Corporation available for
distribution to its stockholders, subject to any preferential rights
of any then outstanding Preferred Stock.
(B) PREFERRED STOCK.
1. General. The Board of Directors, in the exercise of its discretion,
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is authorized to issue the undesignated Preferred Stock in one or more
series, to determine the powers, preferences and rights, and
qualifications, limitations or restrictions, granted to or imposed
upon any wholly unissued series of undesignated
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Preferred Stock, and to fix the number of shares constituting any
series and the designation of such series, without any further vote or
action by the stockholders.
2. No Pre-emptive Rights. No holder of any of the shares of any series
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of Preferred Stock of the Corporation, whether now or hereafter
authorized and issued, shall be entitled as of right to purchase or
subscribe for (1) any unissued stock of any class, or (2) any
additional shares of any class to be issued by reason of any increase
of the authorized capital stock of the Corporation of any class, or
(3) bonds, certificates of indebtedness, debentures or other
securities convertible into stock of the Corporation, or carrying any
right to purchase stock of any class, but any such unissued stock or
such additional authorized issue of any stock or of other securities
convertible into stock, or carrying any right to purchase stock, may
be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, partnerships, corporations,
associations or other entities and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its discretion.
FIFTH: The name and the mailing address of the incorporator are as
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follows:
Name Mailing Address
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Jonathan D. Morse Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022
SIXTH: (A) The management of the business and the conduct of the affairs
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of the Corporation shall be vested in its Board of Directors. 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. The original or other Bylaws of the Corporation
may be adopted, amended or repealed by the initial directors. After the
original or other Bylaws of the Corporation have been adopted, amended, or
repealed, as the case may be, in accordance with the provisions of Section 109
of the General Corporation Law of the State of Delaware, and after the
Corporation has received any payment for any of its stock, the power to adopt,
amend, or repeal the Bylaws of the Corporation may be exercised by the Board of
Directors of the Corporation.
(B) Until the consummation of an initial public offering (an "IPO") of the
Common Stock under the Securities Act of 1933, as amended (the "Act"), the
Corporation shall have one or more directors, the number of directors to be
determined from time to time by vote of a majority of the directors then in
office. Immediately upon the consummation of an IPO, the following provisions
shall apply:
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1. Number of Directors. The number of directors of the Corporation shall
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not be less than three nor more than 15. The exact number of
directors within the limitations specified in the preceding sentence
to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors.
2. Classes of Directors. The Board of Directors shall be and is divided
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into three classes: Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The
persons who shall serve as the initial Class I, Class II and Class III
directors upon consummation of the IPO may be designated by the Board
of Directors prior to such IPO.
3. Election of Directors/Terms of Office. Election of directors need not
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be by written ballot except as and to the extent provided in the
Bylaws of the Corporation. Except as otherwise provided herein, each
director shall serve for a term ending on the date of the third annual
meeting of the stockholders following the annual meeting at which such
director was elected. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office for
cause. Each initial Class I director shall serve for a one year term;
each initial Class II director shall serve for a two year term; and
each initial Class III director shall serve for a three year term.
Notwithstanding the foregoing, the term of each director shall be
subject to the election and qualification of his successor and to his
earlier death, resignation or removal.
4. Allocation of Directors among Classes in the Event of Increases or
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Decreases in the Number of Directors. In the event of any increase or
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decrease in the authorized number of directors, (i) each director then
serving as such shall nevertheless continue as a director of the class
of which he is a member and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be
apportioned among the three classes of directors so as to ensure that
no one class has more than one director more than any other class. To
the extent possible, consistent with the foregoing rule, any newly
created directorships shall be added to those classes whose terms of
office are to expire at the latest dates following such allocation,
and any newly eliminated directorships shall be subtracted from those
classes whose terms of offices are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time
by resolution adopted by the Board of Directors.
5. Preferred Stock Directors. Notwithstanding the foregoing, whenever
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the holders of any one or more classes or series of Preferred Stock
issued by the Corporation shall have the right to vote separately by
class or series to elect directors at an annual or special meeting of
stockholders, the election, term of
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office, filling of vacancies and other features of such directorships
shall be governed by the terms of the Certificate of Designation
applicable thereto, and such directors so elected shall not be divided
into classes provided by this Article SIXTH, unless expressly provided
by such terms.
6. Removal. Directors of the Corporation may be removed only for cause
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by the affirmative vote of the holders of at least two-thirds of the
issued and outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors.
7. Vacancies. Any vacancy in the Board of Directors, however occurring,
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including a vacancy resulting from an enlargement of the Board of
Directors, shall be filled only by a vote of a majority of directors
then in office, although less than a quorum, or by a sole remaining
director. A director elected to fill a vacancy shall be elected to
hold office until the next election of the class for which such
director shall have been chosen, subject to the election and
qualification of his successor and to his earlier death, resignation
or removal.
8. Stockholder Nominations and Introductions of Business. Advance notice
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of stockholder nominations for election of directors and other
business to be brought by stockholders before either an annual or
special meeting of stockholders shall be given in the manner provided
by the Bylaws of the Corporation.
9. Committees. Wherever the term "Board of Directors" is used in this
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Certificate of Incorporation, such term shall mean the Board of
Directors of the Corporation; provided, however that to the extent any
committee of directors of the Board of Directors exists, such
committee may exercise any right or authority of the Board of
Directors under this Certificate of Incorporation.
SEVENTH: The Corporation is to have perpetual existence.
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EIGHTH: Whenever a compromise or arrangement is proposed between this
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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
(S) 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
(S) 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholder 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 consequence of such
compromise or arrangement, the
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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.
NINTH: Whenever the Corporation shall be authorized to issue only one
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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 the Certificate of Incorporation shall entitle the holder thereof
to the right to vote at any meeting of stockholders except as the provisions of
paragraph (b)(2) 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 in the number of authorized shares of said class.
TENTH: A director of the Corporation shall not be personally liable to the
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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 an improper
personal benefit.
ELEVENTH: (a) Right to Indemnification. Each person who was or is made a
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party or is threatened to be made a party to or is involved in any action, suit,
claim or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, 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, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation 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 all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators: provided, however, that, except
as provided in paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding
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(or part thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition: provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer (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 person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a 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 shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers mentioned in this Article
ELEVENTH.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
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this Article is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
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
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
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payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its expense, to
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protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such 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.
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TWELFTH: From time to time any of the provisions of this Certificate of
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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 TWELFTH.
THIRTEENTH: Meetings of the stockholders may be held within or without the
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State of Delaware, as the Bylaws, amendments thereto, or amendments to this
Certificate of Incorporation may provide. The books of the Corporation may be
kept outside of the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or by the Bylaws, and
amendments thereto, or by the amendments to this Certificate of Incorporation.
FOURTEENTH: At any time during which a class of capital stock of this
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Corporation is registered under Section 12 of the Securities Exchange Act of
1934 or any similar successor statute, stockholders of this Corporation may not
take any action by written consent in lieu of a meeting. Notwithstanding any
other provisions of law, this Certificate of Incorporation or the Bylaws of this
Corporation, and notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the shares of capital stock of this Corporation issued and
outstanding and entitled to vote generally in the election of directors shall be
required to amend or repeal, or to adopt any provision inconsistent with, this
Article FOURTEENTH.
FIFTEENTH: Special meetings of stockholders may be called at any time by
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only the Chairman of the Board of Directors of the Corporation, the Chief
Executive Officer (or if there is no Chief Executive Officer, the President) or
the Board of Directors of the Corporation. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting. Notwithstanding any other provision
of law, the Certificate of Incorporation or the Bylaws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote generally in the election of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with this Article FIFTEENTH.
Dated: May 19, 1998
/s/ Jonathan D. Morse
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Jonathan D. Morse, Incorporator
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