SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INNOVO GROUP INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2928178
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1808 North Cherry Street
Knoxville, Tennessee 37917
(Address of Principal Executive Offices)(Zip Code)
Sims Moss Kline & Davis LLP Consulting Agreement
Zummo & Perry, LLP Consulting Agreement
(Full titles of the plans)
Samuel J. Furrow, Jr.
Vice President of Corporate Development
Innovo Group Inc.
1808 North Cherry Street, Knoxville, Tennessee 37917
(Name and address of agent for service)
(423) 546-1110
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(2) Offering Price Registration
Fee
Common Stock 45,000 Shares(1) $1.6875 $75,937.50 $21
($0.10 par value)
(1) Represents shares of Common Stock authorized for issuance by the Company
to outside counsel,Sims Moss Kline & Davis LLP and Zummo & Perry, LLP,
pursuant to their respective Consulting Agreements.
(2) Calculated pursuant to Rule 457 paragraphs (c) and (h) based on the last
sale price as reported by Nasdaq for December 4, 1998 of $1.6875.
Pursuant to Rule 416(a) of the General Rules and Regulations under the
Securities Act of 1933, this Registration Statement shall cover such
additional securities as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed or to be filed by
Innovo Group Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission") (Commission File Number 0-18926) are
incorporated by reference herein:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended November 30, 1997;
(b) The Company's Current Reports on Form 8-K dated November 2, 1998,
October 21, 1988, October 20, 1998, October 13, 1998,
September 28, 1998, and August 31, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
(as amended by Form 10-Q/A) ended August 31,1998;
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended May 31, 1998;
(e) The Company's Quarterly Report on Form 10-Q for the quarter
ended February 28, 1998; and
(f) The description of the Company's Common Stock which is contained
in the Company's registration statement filed under Section 12 of
the Exchange Act, including any amendments and reports filed for
the purpose of updating such description.
All other documents filed by the Company subsequent to the date of
this Registration Statement pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the
respective dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Sims Moss Kline & Davis LLP has acted as legal counsel to the
Company. The shares of Common Stock to be issued pursuant to the
SMKD Consulting Agreement are being issued by the Company as partial
payment for outstanding legal fees owed to Sims Moss Kline & Davis LLP
for legal services rendered to the Company during 1997 and 1998 other
than in connection with capital raising transactions.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify any of its directors and officers against
expenses (including attorney's fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding (i) if any such
person acted in good faith and in a manner reasonably believed to be
in or not opposed to be the best interests of the corporation, and
(ii) in connection with any criminal action or proceeding if such
person had no reasonable cause to believe such conduct was unlawful.
In actions brought by or in the right of the corporation, however,
Section 145 provides that no indemnification may be made in respect
of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the
performance of such persons's duty to the corporation unless,
and only to the extent that, the Court of Chancery of the State
of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in review of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court
shall deem proper. Article Nine of the Company's Amended and
Restated Certificate of Incorporation requires that the Company
indemnify its directors and officers for certain liabilities
incurred in the performance of their duties on behalf of the
Company to the fullest extent allowed by Delaware law.
The Company's Amended and Restated Certificate of Incorporation
relieves its directors from personal liability to the Company or to
stockholders for breach of any such director's fiduciary duty as a
director to the fullest extent permitted by the Delaware General
Corporation Law. Under Section 102(b)(7) of the Delaware General
Corporation Law, a corporation may relieve its directors from
personal liability to such corporation or its stockholders for
monetary damages fore any breach of their fiduciary duty as
directors except (i) for a breach of the duty of loyalty,
(ii) for failure to act in good faith, (iii) for intentional
misconduct or knowing violation of law, (iv) for willful
or negligent violations of certain provisions of the
Delaware General Corporation Law imposing certain requirements
with respect to stock repurchases, redemptions and dividends,
or (v) for any transaction from which the director derived
an improper personal benefit.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers or
controlling persons of the Company pursuant to the foregoing
provisions, the Company has been informed that, in the opinion
of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Securities Act and
is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represents a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that paragraphs (1)(i) and (1) (ii) do not
apply if the registration statement is on Form S-3, Form S-8, or Form F-3,
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15 (d) of Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Knoxville,
State of Tennessee, on the 21st day of January 1999.
INNOVO GROUP INC.
By: Samuel J. Furrow, Sr.
Samuel J. Furrow, Sr.
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Samuel J. Furrow, Sr. and
Samuel J. Furrow, Jr. and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement
and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission
and any other regulatory authority, granting unto said attorney-in-fact
and agent, full power and authority to do and perform each and every
act and thing required and necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his or her substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of December 14, 1998,
by the following persons in the capacities and on the dates indicated.
Samuel J. Furrow, Sr. Chairman and Chief January 7, 1999
Samuel J. Furrow, Sr. Executive Officer; Director
Patricia Anderson-Lasko President and Director January 7, 1999
Patricia Anderson-Lasko
Dan Page Chief Operating Officer January 7, 1999
Dan Page and Director
J. Eric Hendrickson Vice President, Treasurer January 7, 1999
J. Eric Hendrickson and Director
L. E. Smith Director January 7, 1999
L. E. Smith
Herb Newton
Herb Newton Director January 7, 1999
Robert S. Talbott Director January 7, 1999
Robert S. Talbott
EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Exhibit 4.1 Sims Moss Kline & Davis LLP Consulting Agreement
Exhibit 4.2 Zummo & Perry, LLP Consulting Agreement
Exhibit 5 Opinion of Sims Moss Kline & Davis LLP
Exhibit 23.1 Consent of BDO Seidman, LLP
Exhibit 23.2 Consent of Sims Moss Kline & Davis LLP (included in Exhibit 5)
Exhibit 24 Power of Attorney (included on signature page)
EXHIBIT 4.1
SIMS MOSS KLINE & DAVIS LLP CONSULTING AGREEMENT
January 25, 1999
VIA FACSIMILE/U.S. MAIL
Mr. Jay Furrow
Vice President, Corporate Development
Innovo Group Inc.
27 North Main Street
Springfield, TN 37172
Re: Legal Fees
Dear Jay:
This letter is to confirm that Innovo Group, Inc. has agreed to pay
$30,000 in fees for legal services rendered by this firm which did not
involve capital raising activities by the issuance of 25,000 shares Innovo
Group Inc. common stock. An S-8 registration will be filed which covers the
stock. It is our plan to sell the stock before the end of the year. In the
event the sale of the stock generates less than $30,000 in net proceeds,
Innovo Group Inc. will make up the difference between the amount of the
proceeds and $30,000. If the proceeds exceed $30,000, the excess will be
placed in escrow and applied toward the payment of other fees for legal
services which do not involve capital raising activities.
If this letter accurately summarizes the agreement between this firm and
Innovo Group Inc., please sign in the space provided below and return the
original letter to the undersigned.
Sincerely,
SIMS MOSS KLINE & DAVIS LLP
By: Jerry L. Sims
Jerry L. Sims
JLS/jkb
[signatures continued on subsequent page]
Mr. Jay Furrow
January 25, 1999
Page 2
________________
Accepted and agreed to:
INNOVO GROUP INC.
By: Jay Furrow
Jay Furrow
Vice President, Corporate Development
EXHIBIT 4.2
ZUMMO & PERRY, LLP CONSULTING AGREEMENT
January 25, 1999
VIA FACSIMILE NO. 713-651-0597
Mr. Patrick Zummo
Zummo & Perry LLC
100 Louisiana, Suite 1200
Houston, Texas 77002
Re: Legal fees
Dear Patrick:
This letter is to confirm that Innovo Group Inc. has agreed o pay
$37,914.46 in fees for legal services rendered by your firm and reasonable
expenses incurred in connection therewith by the issuance of a total of
20,000 shares of Innovo Group Inc. common stock, 5,000 shares of which will
be issued in each of the following months: January 1999, February 1999,
March 1999 and April 1999. An S-8 registration will be filed which covers
the stock. In the event the net proceeds generated from the sale of such
stock is less than the amount of fees, Innovo Group Inc. will pay your firm
the amount of the shortfall, provided all of the stock is sold within
forty-five (45) days of its issuance.
If this letter accurately summarizes the agreement between your firm
and Innovo Group Inc., please sign in the space provided below and return
the original letter to the undersigned.
Sincerely,
INNOVO GROUP INC.
By: Jay Furrow
Jay Furrow
Vice President, Corporate Development
Accepted and agreed to:
ZUMMO & PERRY LLC
By: Patrick Zummo
Patrick Zummo
EXHIBIT 5
OPINION OF SIMS MOSS KLINE & DAVIS LLP
January 25, 1999
Innovo Group Inc.
1808 North Cherry Street
Knoxville, Tennessee 37917
Re: Registration Statement on Form S-8 Relating to the issuance
of Common Stock of Innovo Group Inc. pursuant to that certain
Warrant Agreement, dated as of November 16, 1998 (the "Warrant
Agreement")
Gentlemen:
With respect to the Registration Statement on Form S-8
(the "Registration Statement"), filed by Innovo Group Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission
for the purpose of registering under the Securities Act of 1933, as
amended, the offer and sale of up to 45,000 shares of the Company's
common stock, par value $0.10 per share, pursuant to the Sims Moss Kline
& Davis LLP Consulting Agreement and the Zummo & Perry, LLP
Consulting Agreement, we have examined such documents and questions of law we
consider necessary or appropriate for the purpose of giving this opinion.
On the basis of such evaluation, we advise you that in our opinion the
45,000 shares covered by the Registration Statement, upon the exercise
of delivery of such shares and payment therefor in accordance with the
terms stated in the Consulting Agreements and the Registration Statement,
will be duly and legally authorized, issued and outstanding and will be
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit
that we are within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or under the
rules and regulations of the Securities and Exchange Commission relating
thereto.
Very truly yours,
Sims Moss Kline & Davis LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
INNOVO GROUP INC.
Knoxville, Tennessee
We hereby consent to the incorporation by reference in this Registration
Statement of our report dated February 6, 1998, relating to the consolidated
financial statements of Innovo Group Inc. appearing in the Company's Annual
Report on Form 10-K for the year ended November 30, 1997.
BDO Seidman, LLP
Atlanta, Georgia
January 25, 1999
1
2
