EXHIBIT 3.1
THIRD RESTATED ARTICLES OF INCORPORATION
OF
DOLLAR TREE STORES, INC.
(as amended)
ARTICLE I
NAME
The name of the Corporation is DOLLAR TREE STORES, INC.
ARTICLE II
PURPOSES AND POWERS
The purpose for which the Corporation is organized is to engage in any
lawful business not required by the Virginia Stock Corporation Act to be stated
in the Articles of Incorporation.
The Corporation shall have all of the corporate powers of any character
which are not prohibited by law or required to be stated in the Articles of
Incorporation.
ARTICLE III
CAPITAL STOCK
A. Authorized Shares. The aggregate number of shares that the Corporation
shall have authority to issue is Ten Million (10,000,000) shares of Preferred
Stock, One Cent ($.01) par value per share, and One Hundred Million
(100,000,000) shares of Common Stock, One Cent ($.01) par value per share.
B. Preferred and Common Stock. The designations, preferences, voting powers
and relative, participating, optional other special rights of the Preferred
Stock and the Common Stock, and the qualifications, limitations and restrictions
of such preferences and rights, shall be in accordance with Sections B(1)
through B(6) of this Article III.
1. Issuance of Preferred Stock. The Preferred Stock may be issued from
time to time, in one or more series, each of which series shall be designated by
such appropriate designations as may be stated in such amendment or amendments
to these Articles of Incorporation providing for the issuance of the stock of
such series as may be adopted by the Board of Directors from time to time, a
copy of which amendment or amendments shall have been filed with and made
effective (without shareholder approval) by the State Corporation Commission of
Virginia as required by law. Subject to the provisions hereof, all shares of any
one series shall be alike in every particular and except for the relative rights
and preferences as to which there may be variations between different series as
set forth in this Article III, all shares of Preferred Stock shall be alike in
every particular. The Board of Directors shall have power and authority, subject
to all the provisions of these Articles and of the Virginia Stock Corporation
Act, to state and determine, in the amendment or amendments providing for the
issue of each series of Preferred Stock, the number of shares of each such
series authorized to be issued and the preferences and relative, participating,
optional and other rights pertaining to each such series, and the
qualifications, limitations or restrictions thereof, including, full power and
authority to determine, as to the Preferred Stock of each such series (a) the
rate of dividend, the time of payment, whether dividends shall be cumulative and
if so, the dates from which
1
dividends shall be cumulative, and the extent of participation rights, if any,
(b) any right to vote with holders of shares of any other series or class and
any right to vote as a class, either generally or as a condition to specified
corporate action, and the number of votes, if any, to be exercised for each
share, (c) the price at and the terms and conditions on which shares may be
redeemed, (d) the amount payable upon shares in event of involuntary
liquidation, (e) the amount payable upon shares in event of voluntary
liquidation, (f) sinking fund provisions for the redemption or purchase of
shares, (g) the terms and conditions on which shares may be converted if the
shares of any series are issued with the privilege of conversion, and (h) any
other designations, rights, preferences or limitations that are now or hereafter
permitted by law and are not inconsistent with the provisions of this Section
B(1).
2. Dividends. The holders of the Preferred Stock shall be entitled to
receive dividends as and when declared by the Board of Directors out of funds
legally available therefor. Dividends on the Preferred Stock of each series
shall be at such rates or to such extent, payable in such manner, under such
conditions and on such dates as shall be stated in the amendment to the Articles
of Incorporation providing for the issuance of each such series of Preferred
Stock. The holders of Common Stock shall be entitled to receive such dividends
as may from time to time be declared by the Board of Directors out of funds
legally available therefor, subject to the rights of the series of Preferred
Stock outstanding from time to time. Dividends on Preferred Stock shall be in
preference to dividends on Common Stock, unless otherwise determined by the
Board in the amendment or amendments providing for an issue of Preferred Stock.
3. Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, there shall be paid
to the holders of shares of Preferred Stock of each series the fixed amount per
share payable in the event of liquidation, dissolution or winding up of the
Corporation, stated in the amendment of the Articles of Incorporation providing
for the issuance of each such series of Preferred Stock, plus the unpaid
dividends accrued thereon, if such dividends be cumulative, before any sum shall
be paid to, or any assets distributed among, the holders of the Common Stock,
but the holders of the Preferred Stock shall be entitled to no further payment
or distribution than as provided above. If amounts payable to holders of shares
of Preferred Stock on liquidation, dissolution or winding up are not paid in
full, the shares of Preferred Stock shall share in any distribution of assets
(other than by way of dividends) on a basis determined by the Board in the
amendment or amendments providing for the issue of each series of Preferred
Stock, or, in the absence of such determination, the shares of Preferred Stock
shall share ratably on a share for share basis in accordance with the sums which
would be payable in such distribution if all sums payable were discharged in
full. In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of the Common Stock shall be
entitled, in proportion to the number of shares of Common Stock so held, to
payment or distribution of any assets remaining after all required payments to
holders of Preferred Stock. A liquidation, dissolution or winding up of the
Corporation, as such terms are used in this Section B(3), shall not be deemed to
be occasioned by or to include any consolidation or merger of the Corporation
with or into any other corporation or corporations or a sale, lease or
conveyance of all or part of
2
its assets.
4. Redemption. The Preferred Stock of each series shall be subject to
redemption if so provided, and at the prices, and upon the terms and
conditions stated, in the amendment to the Articles of Incorporation providing
for the issuance of each such series of Preferred Stock.
5. Voting. The holders of each series of the Preferred Stock shall
have no voting power except as may be required by law, or as may be provided,
and upon the terms and conditions stated, in the amendment to the Articles of
Incorporation providing for the issuance of each such series of Preferred Stock.
Except as set forth hereinabove, the entire and exclusive voting rights are
vested in the holders of the Common Stock. Each holder of the Common Stock shall
have one vote for each share held by him, and each holder of any series of
Preferred Stock when and if entitled to vote shall also have such votes for each
share held by him as provided in the amendment to the Articles of Incorporation
providing for the issuance of each such series of Preferred Stock.
6. Pre-emptive Rights. No holder of any share of capital stock of the
Corporation, whether now or hereafter authorized or outstanding, shall have any
pre-emptive or preferential right to purchase or subscribe to purchase i) any
shares of stock of any class of the Corporation or other security that the
Corporation may determine to issue, whether share of stock or other security to
be issued is now or hereafter authorized, ii) any warrants, rights or options to
purchase any stock or other security , or iii) any obligation convertible into
any such stock or other security or into warrants, rights or options to purchase
any such stock or other security.
ARTICLE IV
DIRECTORS
The number of directors shall be fixed by the By-Laws. In the absence of
such a provision in the By-Laws, the number of directors shall be nine. Upon the
effective date of these Third Restated Articles of Incorporation, the Board of
Directors shall divide the directors of the corporation into three classes as
nearly equal in number as possible. The term of office of the first class of
directors shall expire at the first annual meeting of stockholders after the
initial election dividing directors into such classes, that of the second class
shall expire at the second annual meeting after such election, and that of the
third class at the third annual meeting after such election. At each annual
meeting of stockholders, successors to the class of directors whose terms shall
then expire and any other nominees for election as a director of such class
shall be elected to hold office until the third succeeding annual meeting. If
the number of directors is changed, any newly created directorships or decrease
in directorships shall be so apportioned among the classes by the Board of
Directors as to make all classes as nearly equal in number as possible.
Vacancies resulting from an increase in the number of directors may be created
and filled by action of the Board of Directors between annual meetings of
stockholders. A director may be removed only if the number of votes cast to
remove the director constitutes more than two-thirds (2/3) of the votes entitled
to be cast at an election of directors.
ARTICLE V
INDEMNIFICATION
A. Definitions. For purposes of this Article, the following definitions
3
shall apply:
"Act" means the Virginia Stock Corporation Act, as it exists on the
date hereof or is hereafter amended, or any successor or comparable provision of
law if such Act is repealed.
"eligible person" means a person who is or was a director or officer of
the Corporation, or while serving as such director or officer, is or was serving
at the request of the Corporation as a director, trustee, partner or officer of
another corporation, affiliated corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise. A person shall be considered to be
serving an employee benefit plan at the Corporation's request if his duties to
the Corporation also impose duties on, or otherwise involve services by, him to
the plan or to participants in or beneficiaries of the plan.
"expenses" includes, without limitation, counsel fees, expert witness
fees, and costs of investigation, litigation and appeal, as well as any amounts
expended in asserting a claim for indemnification.
"liability" means the obligation to pay a judgment, settlement,
penalty, fine (including any excise tax assessed with respect to any employment
benefit plan), or reasonable expenses incurred with respect to a proceeding.
"party" includes, without limitation, an individual who was, is, or is
threatened to be made a named defendant or respondent in a proceeding.
"proceeding" means any threatened, pending, or completed action, suit,
or proceeding whether civil, criminal, administrative, or investigative and
whether formal or informal.
B. Indemnification of Officers and Directors.
1. To the full extent that the Act permits the limitation or
elimination of the liability of directors and officers, no director or officer
of the Corporation made a party to any proceeding shall be liable to the
Corporation or its stockholders for monetary damages arising out of any
transaction, occurrence or course of conduct, whether occurring prior or
subsequent to the effective date of this Article V.
2. To the full extent permitted by the Act, the Corporation shall
indemnify any eligible person who was or is a party to any proceeding, including
a proceeding brought by or in the right of the Corporation or brought by or on
behalf of the stockholders of the Corporation, against any liability incurred by
him in connection with such proceeding unless he engaged in willful misconduct
or a knowing violation of the criminal law. To the same extent, the Board of
Directors is hereby empowered, by a majority vote of a quorum of disinterested
directors, to enter into a contract to indemnify any director or officer against
liability and/or to advance or reimburse his expenses in respect to any
proceedings arising from any act or omission, whether occurring before or after
the execution of such contract.
3. The provisions of this Article V shall be applicable to all
proceedings commenced after it becomes effective, arising from any act or
omission, whether occurring before or after such effective date. No amendment or
repeal of this Article V shall impair or otherwise diminish the rights
4
provided under this Article V (including those created by contract) with respect
to any act or omission occurring prior to such amendment or repeal. The
Corporation shall promptly take all such actions and make all such
determinations and authorizations as shall be necessary or appropriate to comply
with its obligation to make any indemnity against liability, or to advance any
expenses, under this Article V and shall promptly pay or reimburse all
reasonable expenses, including attorneys' fees, incurred by any such director or
officer in connection with such actions and determinations or proceedings of any
kind arising therefrom.
4. The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not of
itself create a presumption that the director or officer did not meet any
standard of conduct that is a prerequisite to the limitation or elimination of
liability provided in Section B(1) of this Article V or to his entitlement to
indemnification under Section B(2) of this Article V.
5. No indemnification under Section B(2) of this Article V (unless
ordered by a court of law) shall be made by the Corporation without a
determination in the specific case that indemnification is proper in the
circumstances because the proposed indemnitee has met the standard of conduct
that is a prerequisite to his entitlement to indemnification under Section B(2)
of this Article V.
The determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
(b) If a quorum cannot be obtained under subsection (a) of this Section
B(5), by majority vote of a committee duly designated by the Board of Directors
(in which designation directors who are parties may participate), consisting
solely of two or more directors not at the time parties to the proceeding;
(c) By special legal counsel:
i) selected by the Board of Directors in the manner prescribed in
subsection (a) of this Section B(5) or its committee in the manner
prescribed in subsection (b) of this Section B(5); or
ii) if a quorum of the Board of Directors cannot be obtained
under subsection (a) of this Section B(5) and a committee
cannot be designated under subsection (b) of this Section
B(5), selected by a majority vote of the full Board of
Directors including directors who are parties; or
(d) By the stockholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may not be
voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is appropriate, except that if the determination is made by
special legal counsel, such authorizations and evaluations shall be made by
those entitled under subsection (c) of this Section B(5) to select counsel.
Notwithstanding the foregoing, in the event there has been a change in
the composition of a majority of the Board of Directors after the date of the
alleged act or omission with respect to which indemnification, an advance or
reimbursement is claimed, any determination as to such indemnification,
5
advance or reimbursement shall be made by special legal counsel agreed upon by
the Board of Directors and the proposed indemnitee. If the Board of Directors
and the proposed indemnitee are unable to agree upon such special legal counsel,
the Board of Directors and the proposed indemnitee each shall select a nominee,
and the nominees shall select such special legal counsel.
6. (a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director or officer (and may do so for a person referred
to in Section B(7) of this Article V) who is a party to a proceeding in advance
of final disposition of the proceeding or the making of any determination under
Section B(2) of this Article V if the director, officer or person furnishes to
the Corporation:
i) a written statement, executed personally, of his good faith belief
that he has met the standard of conduct that is a prerequisite to his
entitlement to indemnification under Section B(2) of this Article V; and
ii) a written undertaking, executed personally or on his behalf, to
repay the advance if it is ultimately determined that he did not meet
such standard of conduct.
(b) The undertaking required by paragraph (ii) of subsection (a)
of this Section B(6) shall be an unlimited general obligation but need not be
secured and may be accepted without reference to financial ability to make
repayment.
(c) Authorizations of payments under this Section B(6) shall be
made by the persons specified in Section B(5) of this Article V.
7. The Board of Directors is hereby empowered, by majority vote of a
quorum consisting of disinterested directors, to cause the Corporation to
indemnify or contract to indemnify any person not specified in Section B(2) of
this Article V who was, is or may become a party to any proceeding, by reason of
the fact that he is or was an 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, to the same or a lesser extent as if such
person were specified as one to whom indemnification is granted in Section B(2)
of this Article V. The provisions of Sections B(3) through B(6) of this Article
V shall be applicable to any indemnification provided pursuant to this Section
B(7).
8. The Corporation may purchase and maintain insurance to indemnify it
against the whole or any portion of the liability assumed by it in accordance
with this Article V and may also procure insurance, in such amounts as the Board
of Directors may determine, on behalf of 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 or incurred by him in any
such capacity or arising from his status as such, whether or not the Corporation
would have power to indemnify him against such liability under the provisions of
this Article V.
9. Every reference herein to directors, officers, employees or agents
shall include former directors, officers, employees and agents and their
respective heirs, executors and administrators. The indemnification hereby
provided and provided hereafter pursuant to the power hereby conferred by this
6
Article V on the Board of Directors shall not be exclusive of any other rights
to which any person may be entitled, including any right under policies of
insurance that may be purchased and maintained by the Corporation or others,
with respect to claims, issues or matters in relation to which the Corporation
would not have the power to indemnify such person under the provisions of this
Article V. Nothing herein shall prevent or restrict the power of the Corporation
to make or provide for any further indemnity, or provisions for determining
entitlement to indemnity, or provisions for indemnification agreements, By-Laws,
or other arrangements (including, without limitation, creation of trust funds or
security interests funded by letters of credit or other means) approved by the
Board of Directors (whether or not any of the directors of the Corporation shall
be a party to or beneficiary of any such agreements, By-Laws or arrangements);
provided, however, that any provision of such agreements, By-Laws or other
arrangements shall not be effective if and to the extent that it is determined
to be contrary to this Article V or applicable laws of the Commonwealth of
Virginia, but other provisions of any such agreements, By-Laws or other
arrangements shall not be affected by any such determination.
10. Each provision of this Article V shall be severable, and an adverse
determination as to any such provision shall in no way affect the validity of
any other provision.
ARTICLE VI
AMENDMENTS
Adoption of an amendment to Article IV or this Article VI of these Third
Restated Articles of Incorporation, or Articles II(3), II(5), III(2), III(3), or
III(4) of the Second Restated By-Laws requires, of each voting group entitled to
vote thereon, approval of the amendment by more than two-thirds of all the votes
entitled to be cast by that voting group. Adoption of all other amendments to
the Articles of Incorporation requires, of each voting group entitled to vote
thereon, approval of the amendment by a majority of a quorum of the voting
group. Nothing in this Article VI shall be construed to require shareholder
approval of an amendment or amendments to these Articles of Incorporation
providing for the issuance of any series of Preferred Stock in accordance with
Article III(B) of these Articles of Incorporation.
ARTICLE VII
MISCELLANEOUS
A. The Corporation elects not to be governed by Article 14 of the Act,
entitled "Affiliated Transactions."
B. The Corporation elects not to be governed by Article 14.1 of the Act,
entitled "Control Share Acquisitions," and such Article shall not apply to
acquisitions of shares of the Corporation.
7