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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CROWN BOOKS CORPORATION
CROWN BOOKS CORPORATION, a Delaware corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(hereinafter the "Corporation"), DOES HEREBY CERTIFY that:
1. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on December 21,
1981. The Certificate was thereafter restated and amended on May 24, 1983, and
amended on September 4, 1986.
2. This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware by the Board of Directors of
the Corporation.
3. This Amended and Restated Certificate of Incorporation was
adopted in connection with a plan of reorganization of the Corporation approved
by an order of the U.S. District Court for the District of Delaware in In re
Crown Books Corporation, Case No. 98-1575(RRM) through 98-1580(RRM), under
Chapter 11 of the United States Bankruptcy Code (11 U.S.C. Sections 101, et
seq.), pursuant to Section 303 of the General Corporation Law of the State of
Delaware, with jurisdiction of such Chapter 11 case for the reorganization of
the Corporation.
4. The Amended and Restated Certificate of Incorporation of this
Corporation is amended and restated to read in full as follows:
FIRST: The name of this corporation is Crown Books Corporation
(hereinafter the "Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of this Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The Corporation is authorized to issue two classes of stock to
be designated "Common Stock" and "Preferred Stock," all of which shall
have a par value of $0.01 per share. The total number of shares of stock
which the Corporation is authorized to issue is eleven (11) million
shares. Ten (10) million shares shall be Common Stock and one (1) million
shares shall be Preferred Stock.
1. Preferred Stock. Shares of Preferred Stock may be
issued from time to time in one or more classes or one or
more series within any
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class and the Board of Directors of the Corporation is hereby
authorized, subject to the limitations provided by law, to
establish and designate such classes or series of the
Preferred Stock, to fix the number of shares constituting
each class or series and to fix by resolution or resolutions
the voting powers, full or limited (or no voting powers),
and such designations, preferences and relative,
participating, optional or other special rights and
qualifications, limitations or restrictions thereof, and to
increase or decrease the number of shares constituting each
class or series.
2. Common Stock. All shares of Common Stock to be issued
must be voting securities and, as to all classes of such
voting securities, voting power must be on a proportional
one-vote-per-share basis. The Corporation shall not have the
power or authority to issue any shares of capital stock
without voting power.
FIFTH: The board of directors shall be composed, initially, of seven
directors. Commencing with the first annual meeting of stockholders, the
directors of the corporation shall be divided into three classes, the
first two of which shall each have two directors and the third of which
shall have three directors. The initial term of office of the first class
of such directors shall expire at the first annual meeting of stockholders
thereafter, the initial term of office of the second class of directors
shall expire at the second annual meeting of stockholders thereafter and
the initial term of office of the director in the third class shall expire
at the third annual meeting of stockholders thereafter, with each class of
directors to hold office until their successors have been duly elected and
qualified. At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed the directors
whose terms expire at such annual meeting shall be elected to hold office
for a term expiring at the annual meeting of stockholders in the third
year following the year of their election and until their successors have
been duly elected and qualified. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain or attain a number of directors in each class as nearly equal as
reasonably possible, but no decrease in the number of directors may
shorten the term of any incumbent director.
Elections of directors need not be by written ballot except to the
extent provided in the Bylaws of the Corporation.
SIXTH: The board of directors shall have the power to make, adopt,
alter, amend and repeal the bylaws of this Corporation without the assent
or vote of the stockholders, and the stockholders may make additional
bylaws and may alter or repeal any bylaw whether adopted by them or
otherwise.
SEVENTH: To the fullest extent permitted by the General Corporation
Law of Delaware, including, without limitation, as provided in Section
102(b)(7) of the General Corporation Law of Delaware, as the same exists
or may hereafter be amended, a director of this Corporation shall not be
personally liable to this Corporation or its stockholders
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for monetary damages for breach of fiduciary duty as a director. If the
General Corporation Law of Delaware is amended after approval by the
stockholders of this provision to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of this Corporation shall be eliminated or limited
to the fullest extent permitted by the General Corporation Law of
Delaware, as so amended. Any repeal or modification of this Article
SEVENTH by the stockholders of this Corporation shall not adversely affect
any right or protection of a director of this Corporation existing at the
time of such repeal or modification or with respect to events occurring
prior to such time.
EIGHTH: (A) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding") by reason of the fact that he or she 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, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the
basis of such proceeding is alleged action in an official capacity as such
director or officer or additionally in the case of another corporation, as
an employee or agent or in any other capacity while serving as such
director, officer, employee or agent shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
General Corporation Law of the State of Delaware, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss
(including reasonable attorneys' fees, judgments, fines, other expenses
and losses, amounts paid or to be paid in settlement, and excise taxes or
penalties arising under the Employee Retirement Income Security Act of
1974 or otherwise) actually and reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of his or her heirs, executors and
administrators. The right to indemnification conferred in this Article
EIGHTH shall be a contract right and 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;
Provided, however, that the payment of such expenses incurred by a
director or officer 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
person while a director or officer including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, which undertaking shall itself be sufficient without the need
for further evaluation of any credit aspects of the undertaking or with
respect to such advancement, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined by a
final, non-appealable order of a court of competent jurisdiction that such
director or officer is not entitled to be indemnified under this Article
EIGHTH.
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(B) If a claim under paragraph (A) of this Article EIGHTH is not
paid in full by the Corporation within sixty (60) days after a written
claim, together with reasonable evidence as to the amount of such
expenses, has been received by the Corporation, except in the case of a
claim for advancement of expenses (including attorneys' fees), in which
case the applicable period shall be twenty (20) days, the claimant may at
any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the
claimant shall also be entitled to be paid, by the Corporation, the
expense, including attorneys' fees, of prosecuting such claim. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified,
or to such advancement of expenses, under this Article EIGHTH or otherwise
shall be on the Corporation.
(C) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition
conferred in this Article EIGHTH shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
(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 such 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 General Corporation Law of the
State of Delaware.
NINTH: 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 Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under Section 279 of
Title 8 of the 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 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.
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TENTH: This Corporation reserves the right to restate this Amended and
Restated Certificate of Incorporation and to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation in the manner now or hereafter prescribed by law, and all
rights and powers conferred herein on stockholders, directors and officers
are subject to this reserved power.
IN WITNESS HEREOF, Crown Books Corporation has authorized this Amended
and Restated Certificate of Incorporation to be signed by Steven Panagos, its
Responsible Officer, on this 5th day of November, 1999.
CROWN BOOKS CORPORATION
By: /s/ Steven Panagos
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Steven Panagos
Responsible Officer
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