EXHIBIT 3.1
FORM OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ADVANCE AUTO PARTS, INC.
Lawrence P. Castellani hereby certifies that:
1. He is the duly elected and acting Chief Executive Officer of Advance
Auto Parts, Inc., a Delaware corporation.
2. The Certificate of Incorporation of the Corporation, originally filed
August, 2001 with the Delaware Secretary of State, and as amended and restated
in the Certificate of Amendment filed August 8, 2001, is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
The name of the corporation is Advance Auto Parts, Inc. (the
"Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, 19801. The name of the Corporation's registered agent at
such address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV
A. The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is One Hundred Ten Million
(110,000,000) shares, consisting of One Hundred Million (100,000,000) shares of
Common Stock, par value $0.0001 per share, and Ten Million (10,000,000) shares
of Preferred Stock, par value $0.0001 per share (the "Preferred Stock").
B. The holders of Common Stock shall be entitled to one (1) vote per
share on all matters to be voted on by the stockholders of the Corporation.
C. Shares of Preferred Stock may be issued in one or more series, from
time to time, with each such series to consist of such number of shares and to
have such voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, as shall be stated in the resolution or resolutions
providing for the issuance of such series adopted by the Board of Directors of
the Corporation (the "Board of Directors"), and the Board of Directors is hereby
expressly vested with authority, to the full extent now or hereafter provided by
law, to adopt any such resolution or resolutions.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(i) The number of shares constituting that series and the distinctive
designation of that series;
(ii) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that
series;
(iii) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(iv) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(v) Whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or
date upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(vii) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that
series; and
(viii) Any other relative rights, preferences and limitations of that
series.
ARTICLE V
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Unless and except to the extent that the Bylaws of the Corporation shall so
require, the election of directors of the Corporation need not be by written
ballot.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by the laws of
the State of Delaware, the Board of Directors is expressly authorized to adopt,
alter, amend and repeal the Bylaws of the Corporation, subject to the power of
the stockholders of the Corporation to alter or repeal any bylaw whether adopted
by them or otherwise.
ARTICLE VII
A. Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
B. Special meetings of stockholders may be called only by the Board of
Directors, the Chairman of the Board of Directors or the Chief Executive
Officer, and may not be called by any other person or persons.
ARTICLE VIII
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 any improper personal 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 Seventh
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.
ARTICLE IX
The Corporation reserves the right at any time, and from time to time, to
amend, alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, and
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other provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted, in the manner now or hereafter prescribed by
law; and all rights, preferences and privileges of whatsoever nature conferred
upon stockholders, directors or any other persons whomsoever by and pursuant to
this Restated Certificate of Incorporation in its present form or as hereafter
amended are granted subject to the rights reserved in this article; provided,
however, that the affirmative vote of 66 2/3% of the voting power of the capital
stock of the Corporation entitled to vote thereon shall be required to amend,
alter or repeal, or adopt any provision inconsistent with, whether by amendment,
merger or otherwise, the provisions of ARTICLES VII, VIII and IX.
_____________________________________
Name: Lawrence P. Castellani
Title: Chief Executive Officer
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