Exhibit 3.5
CERTIFICATE OF INCORPORATION
OF
ADVANCE ACQUISITION CORPORATION
First: The name of the corporation is ADVANCE ACQUISITION
CORPORATION (the "Corporation").
Second: The address of the registered office of the
Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle 19801. The name and
address of the Corporation's registered agent in the State of Delaware is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle 19801.
Third: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may now or hereafter be organized
under the General Corporation Law of the State of Delaware as set forth in Title
8 of the Delaware Code.
Fourth: The total number of shares of stock which the
Corporation shall have authority to issue is One Thousand (1,000), consisting of
One Thousand (1,000) shares of common stock, $.01 par value per share (the
"Common Stock"`).
Fifth: The business and affairs of the Corporation shall be
managed by and under the direction of the Board of Directors. The exact number
of directors of the Corporation shall be fixed by or in the manner provided in
the Bylaws of the Corporation (the "Bylaws").
Sixth: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
(a) to adopt, repeal, rescind, alter or amend in any respect
the Bylaws, and to confer in the Bylaws powers and authorities upon the
directors of the Corporation in addition to the powers and authorities expressly
conferred upon them by statute;
(b) from time to time to set apart out of any funds or assets
of the Corporation available for dividends an amount or amounts to be reserved
as working capital or for any other lawful purpose and to abolish any reserve so
created and to determine whether any, and, if any, what part, of the surplus of
the Corporation or its net profits applicable to dividends shall be declared in
dividends and paid to its stockholders, and all rights of the holders of stock
of the Corporation in respect of dividends shall be subject to the power of the
Board of Directors so to do;
(c) subject to the laws of the State of Delaware, from time to
time to sell, lease or otherwise dispose of any part or parts of the properties
of the Corporation and to cease to conduct the business connected therewith or
again to resume the same, as it may deem best; and
(d) in addition to the powers and authorities hereinbefore and
by the laws of the State of Delaware conferred upon the Board of Directors, to
execute all such powers and to do all acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the express provisions of
said laws, of the Certificate of Incorporation of the Corporation and its
Bylaws.
Seventh: Meetings of stockholders of the Corporation may be
held within or without the State of Delaware, as the Bylaws may provide. The
books of the Corporation may be kept (subject to any provision of applicable
law) 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 Bylaws.
Eighth: The Corporation reserves the right to adopt, repeal,
rescind, alter or amend in any respect any provision contained in this
Certificate of Incorporation in the manner now or hereafter prescribed by
applicable law, and all rights conferred on stockholders herein are granted
subject to this reservation.
Ninth: A director of the Corporation shall not be personally
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 of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended or (iv) for any
transaction from which the director derived an improper benefit. If the Delaware
General Corporation Law hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware Corporation Law. No amendment to or repeal of this Article Ninth shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
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Tenth: The name and mailing address of the incorporator of the
Corporation are:
Thomas A. Waldman
300 S. Grand Avenue, 29th Floor
Los Angeles, California 90071
I, the undersigned, being the incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 6th day of August, 1998.
/s/ Thomas A. Waldman
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Thomas A. Waldman, Incorporator
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CERTIFICATE OF MERGER
OF
WESTERN AUTO SUPPLY COMPANY,
A DELAWARE CORPORATION,
INTO
ADVANCE ACQUISITION CORPORATION,
A DELAWARE CORPORATION,
Pursuant to Section 251 of the
General Corporation Law of the State of Delaware
Pursuant to the provisions of Section 251(c) of the General
Corporation Law of the State of Delaware, Advance Acquisition Corporation, a
Delaware corporation (the "Company"), certifies the following:
FIRST: The names of the constituent corporations and their respective
states of incorporation are:
Name of Corporation State
------------------- --------
Western Auto Supply Company Delaware
Advance Acquisition Corporation Delaware
SECOND: An Agreement and Plan of Merger dated as of August 16, 1998
(as amended, the "Agreement") among Western Auto Supply Company, a Delaware
corporation ("Western Auto") and the Company and the Stockholders of Western
Auto and the Company, providing for the merger of Western Auto with and into the
Company, with the Company as the surviving corporation, has been approved,
adopted, certified, executed and acknowledged by each of the above constituent
corporations in accordance with and in the manner provided in Section 251 of the
General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation in the merger is "Advance
Acquisition Corporation."
FOURTH: Upon the filing of this Certificate of Merger, the name of the
surviving corporation shall change from "Advance Acquisition Corporation" to
"Western Auto Supply Company."
FIFTH: The Certificate of Incorporation of the Company shall become
the Certificate of Incorporation of the surviving corporation, except that
Article First of said Certificate of Incorporation shall be amended to read as
follows:
"The name of the corporation is WESTERN AUTO
SUPPLY COMPANY (the "Corporation")."
SIXTH: The executed Agreement is on file at the principal place of
business of the Company at 5673 Airport Road, Roanoke, Virginia 24012.
SEVENTH: A copy of the Agreement will be furnished by the Company on
request and without cost to any stockholder of either of the above constituent
corporations.
Dated: November 1, 1998
ADVANCE ACQUISITION CORPORATION
By: /s/ J. O'Neil Leftwich
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J. O'Neil Leftwich
Senior Vice President and
Chief Financial Officer