Exhibit 4.1


 


SEVENTH AMENDED AND RESTATED


CERTIFICATE OF INCORPORATION


OF


JOE’S JEANS INC.


 


It is hereby certified that


 


1.             (a)           The present name of the
corporation is Innovo Group Inc (the “Corporation”)


 


(b)           The
name under which the Corporation was originally incorporation 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 Article First and Article Fourth thereto and by substitution in lieu
thereof a new Article First and Article Fourth, which is set forth in the
Seventh 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 Seventh Amended and Restated Certificate of Incorporation of Joe’s
Jeans 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 242 and 245 of the General Corporation Law of
the State of Delaware.


 


5.             The
Certificate of Incorporation of the Corporation, as amended and restated
herein, shall read as follows:


 


FIRST:  The name of the
corporation is JOE’S JEANS INC. (the “Corporation”).


 


SECOND:  The address, including
street, number, city and county, of the registered agent of the Corporation in
the State of Delaware is 2711 Centerville Road Suite 400 Wilmington, Delaware
19808, County of New Castle. 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 if the State of Delaware.


 


FOURTH:  (a) The total number of
shares of capital stock that the Corporation shall be authorized to issue is
105,000,000 divided into two classes as follows:  (i) one hundred million (100,000,000) shares
of common stock having a par value of $.10 per share (“Common Stock”), and (ii)
five million (5,000,000) shares of serial preferred stock in series having a
par value of $.10 per share (the “Preferred Stock”).


 


(b)           The Common Stock
shall be subject to all of the rights, privileges, preferences and priorities
of the Preferred Stock as set forth herein and in the certificate of
designations filed to establish the respective series of Preferred Stock. Each
share of Common Stock shall have the same relative rights as and be identical
in all respects to all the other shares of Common Stock. Whenever there shall
have been paid, or declared and set aside for the Common Stock as to the
payment of dividends, the full amount of dividends and of sinking fund or
retirement payments, if any, to which such holders are respectively entitled in
preference to the Common Stock, then dividends may be paid on the Common Stock
and on any class or series of stock entitled to participate therewith as to
dividends, out of any assets legally available for the payment of dividends,
out of any assets legally available for the payment of dividends thereon, but
only when and as declared by the Board of Directors of the Corporation. In the
event of any dissolution, liquidation, or winding up of the Corporation,
whether voluntary or involuntary, the holders of the Common Stock, and holders
of any class of series of stock entitled to participate therewith, in whole or
in part, as to the distribution of assets in such event, shall become entitled
to participate in the distribution of any assets of the Corporation remaining
after the Corporation shall have paid, or provided for payment of, all debts
and liabilities of the Corporation and after the Corporation shall have paid,
or set aside for payment, to the holders of any class of stock having
preference over the Common Stock in the event of dissolution, liquidation or
winding up the full preferential amounts (if any) to which they are entitled. Each
holders or shares of Common Stock shall be entitled to attend all special and
annual meetings of the stockholders of the Corporation and, share for share and
without regard to class, together with the holders of all other classes of
stock entitled to attend such meetings and to vote (except any class or series
of stock having special voting rights), to cast one vote for each outstanding
share of Common Stock so held upon any matters of thing (including, without
limitation, the election of one or more directors) properly considered and
acted upon by the stockholders.


 


(c)           The
Board of Directors is authorized, subject to limitations prescribe by the
Delaware General Corporation Law and the provisions of this Seventh Amended and
Restated Certificate of Incorporation, to provide by resolution or resolutions
from time to time and filing a certificate pursuant to the applicable provision
of the Delaware General Corporation Law, for the issuance of the shares of
Preferred Stock in series, to establish from time to time the number of shares
to be included in each such series, to fix the powers, designation,
preferences, relative, participating, optional or


 

















 


other special rights of the shares of each such series and the
qualifications, limitations and restrictions thereof.


 


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. The number 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 be 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 of
the Corporation 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 that 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 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 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 extend
permitted by paragraph (7) of 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 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 provide
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 the 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 any 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 or 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 an indemnitee may have or
hereafter acquire under any statue, the Corporation’s Seventh Amended and
Restated Certificate of Incorporation, Bylaws, agreement, vote or 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 EIGHTH or NINTH of this Seventh Amended and Restated Certificate of
Incorporation shall apply to or have any effect on the rights of any individual
referred to in Article EIGHTH 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 Seventh Amended and Restated Certificate of
Incorporation has been executed by its President and Chief Executive Officer
and attested by its Secretary, this 11th day of October, 2007.


 


 


INNOVO GROUP INC.


 


 


	
  By:

  	
     /s/ Marc Crossman

  	
   

  
	
   

  	
  Marc Crossman

  
	
   

  	
  President and Chief Executive Officer

  



 


 


ATTEST:


 


 


	
     /s/ Lori Nembirkow

  	
   

  
	
  Lori Nembirkow

  
	
  Secretary