Document 5DK0YnVyw09dgEkYDeazar9Qz

Search Results Deliver To: Visit www.iLienonline.com and view your results electronically. ATTN: PAMELA OLSEN JENNIFER VILLA From: KAZAN, MCCLAIN, ABRAMS,FERNA CT LIEN SOLUTIONS SACRAMENTO NDEZ,LYONS,FARISSE 1232 Q STREET & GREENWOOD A PROF. LAW SACRAMENTO CA 95811 CORP Ph: 8003442382 Ex: 0221 171 TWELFTH ST., THIRD FL. Fax: 8007804795 OAKLAND,CA 94607 Email: udssorders@uccdirect.com Ref: RONALD BLATT Date: Client #: Subject; Jurisdiction: Search Type: 17-Nov-2009 03:41PM Order#: 20896958 251397 J.A. SEXAUER, INC. NY Secretary of State Certified Charter Documents with All Amendments/Mergers Through Date: 17-Nov-2009 Item#: 7 Results: Certified Copies Attached Comments: Disclaimer: CT Lien Solutions provides the best copies available from the jurisdiction, This report contains information compiled from sources which CT Lien Solutions considers reliable but does not control. CT Lien Solutions in no way undertakes or assumes any part of the customer's business, legal or similar risks, and does not guarantee the accuracy, completion or timeliness of the information provided, and shall not be liable for any losses or injuries whatever resulting from any contingency beyond its control, or from negligence, regardless of the cause.________________________ ____________________________________________ STATE OF NEW YORK DEPARTMENT OF STA TE I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original. Rev. 06/07 WITNESS my hand and official seal of the Department of State, at the City of Albany, on November 17,2009. Daniel E. Shapiro First Deputy Secretaiy of State I I ;xved:within th'6' State ... . ...S" * to'which the.See rotary!" . l?* coMporation'which'may b'e served-upon him is:.' c/o*"C Cor^o^itical"; --__-------- *----- !_!--1------:------- - * 4-ys.tain, ' 1433- ----- ------------------------------------ J-^------ -J*-- nf .!-' .7' ,!i .. jf- m-- <~- --ndBjfrfrlifM 4z$$rr*: '+ .**--- '-* ='-. .. 9 *. 'aince^the' ddte^of Its .iricpxpotationV has .hoT^engaged 'in"a^~~'activity irfJiew rf "'inftc&ioflliMi. . '... ' - - . , .> ti . W** Corporation hereby appoints^. J Srporatiion agent in -New Yorfc ui -- ---- c - Tffipits -Xtt^isbacad process against .it may jbe s ........ . -----ry- ----:' .. . . --' ^9w; Qqfo6siBibflW&^^ . . ' * - ,, . . . , - i r * .. ';. v:r **%-.. * ii"i T " ""^riSSS received^ngTfiled iti this office the- sevehttr *~dav gf|:3uIyTI^lli^^19llLf-.nfc 10 o'clock r.ii jited '1 do^etdjy gHn;r :t t ` incorporated . uMet ftafarrig ;Dd itporam^L : r*:-j' iLi' V. ' n STATE OF NEW YORK DEPARTMENT OF STA TE I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original. Rev. 06/07 WITNESS my hand and official seal of the Department of State, at the City of Albany, on November 17,2009. Daniel E. Shapiro First Deputy Secretary of State --c < , t*. .- . * ... ' . tlmiEICAfV Of SURRENDER OF : -AUTHORITY Of " - ,J*A. S:BXAUSR/.m^ , ' ->8i))gR` ftMmtfc'intniFTRR' r ., BUSINESS" corporation j-aw .. . * ' j.A. aejyatrfer Inc. hereby-certVJte^ii`rfol+ow? . -ft 'E Q-E I V E Q *MT or~ ,s *friN*Nci : -.s~ MAY 1 J984 ths corporation, i* JvA.' S' ixaoag > ..loo -3-;.-' :., ' < *'*' . The"<3`at1B ftit' iwa4i~aufthor-tRSePta"-'do \fea*di19* s?tfPN*S^~f'' ~r;. . ~ K>rk state X*,'klctoJjer Tef^xi&i. .-Ti-v*' "' v . '-'**' r* " ^ ' -----.....i . ^ *C* . * n . . ; . ><t . / O' ` *.'. .. , wf* ' ( *usffeddti . .business.I ,..' -- : *: * . 4. ^ ... . * m'*.' .. * * v ' *. **" *9ttK>Ei*Y.(4fO do" . , - * .* _ > T- # 9 ' .. * ' * *. . . * Jar* #***47' ' previously,.* eignafe*d.C 'J . . . * T t . r** Jldk - - "l". O' .*pb t'd g*t -r'-'y-r-rjigwwlr __ ^ ` " tTfereoi->i-n 1^6.. of- spc't f<in ' 30 ^ ( -lf4.gab:..of vTgj-.',p6tt' ,of:f i dl;^kdd resjt- -ab uarjjpjEu.. ___^retixA---Mmt--'-.** JWitV^il^v i. ^ ..J -^vtAk-v^W;S2r-'^w , thereof ?` an&*itaif- $<%' oefetm^Sfr'lfrtgii* kef lid -'M> Syr *.*- . ' * : * * V ; -tonowledgeT^*' *,, , *f,. - ., -.v- V-.S CT Lien Solutions Search Results Deliver To: Visit www.iLienanline.com and view your results electronically. ATTN: PAMELA OLSEN JENNIFER VILLA From: KAZAN,MCCLAIN,ABRAMS,FERNA CT LIEN SOLUTIONS SACRAMENTO NDEZ,LYONS,FARISSE 1232 Q STREET & GREENWOOD A PROP. LAW SACRAMENTO CA 95811 CORP Ph: 8003442382 Ex: 0221 171 TWELFTH ST., THIRD FL. Fax: 8007804795 OAKLAND,CA 94607 Email: udssorders@uccdirect.com Ref: RONALD BLATT Date: Client#: Subject: Jurisdiction: Search Type: 13-Nov-200912:28PM 251397 J.A. SEXAUER, INC. 2152475 DE Secretary of State Order#: 20896958 Certified Charter Documents with All Amendments/Mergers Item#: 2 Through Date: 12-Nov-2009 Results: Certified Copies Attached Comments: Disclaimer: CT Lien Solutions provides the best copies available from the jurisdiction. This report contains information compiled from sources which CT Lien Solutions considers reliable but does not control. CT Lien Solutions in no way undertakes or assumes any part of the customer's business, legal or similar risks, and does not guarantee the accuracy, completion or timeliness of the information provided, and shall not be liable for any losses or injuries whatever resulting from any contingency beyond its control, or from negligence, regardless of the cause. _______ ___ ____________________ ; `Delaware `The first State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF TBE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "J. A. SEXAUER, INC. " AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE NINETEENTH DAY OF FEBRUARY, A.D. 1988, AT 10 O'CLOCK A.M. CERTIFICATE OF RESIGNATION OF REGISTERED AGENT WITHOUT APPOINTMENT, FILED THE SIXTH DAY OF OCTOBER, A.D. 1997, AT 10 O'CLOCK A.M. CERTIFICATE OF RENEWAL, FILED THE TWENTY-SEVENTH DAY OF JANUARY, A.D. 1998, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SIXTH DAY OF DECEMBER, A.D. 2000, AT 12 O'CLOCK P.M. AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF TBE AFORESAID CERTIFICATE OF OWNERSHIP IS THE TWENTY-NINTH DAY OF DECEMBER, A.D. 2000. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, "J. A. SEXAUER, INC.". 2152475 8100H 091010601 You may verify this certificate wurne at corp.aalamre.g<ov/autbvBr.shtiid FILE header THIS FILE CONTAINS SOME IMAGES OF POOR QUALITY------------- FILE # 2152 BATCH CONTROL f /'&'> READER/PRINTER OPERATOR t SCANNER OPERATOR 475 DATE n)`/-hY DATE ____________ 8600500119 DATE SUBMITTED FILED BY: Dyson-Kisaner-woran Corporation 230 Park Ave. New York, NY 10269 FILE DATE TIME & -/q iD&w^ FILER'S NO. NAME OF COMPANY J. A. Sexauer, Inc. FILE NUMBER a i-sm -f].a TYPE OF DOCUMENT Inc. SECTION NO. 102 CHANGES NAME_________ CHANCES AGENT/OFFICE STOCK i_______________ TO $________________ Franchise Tax $______ CIO Sf"- ffcB ** 1988 OTHER OTHER Filing Fee Tax j Receiving awl Indexing i NO. CA Certified Copies $ NO.PACES (If prepared ly the Division of Corp.)i i TOTAL 8 80 05001 19 CERTIFICATE OF INCORPORATION OF J. A. SEXAUER, INC. ARTICLE I The name of thla Corporation is J. A. Sexauer, Inc. ARTICLE II 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. The name of the Corporation's registered agent at such registered office is The corporation Trust Company. ARTICLE III The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. ARTICLE IV The total nunber of aharas of stock which tha Corporation shall hava authority to lssua is thraa thousand (3,ooo) aharas of Cosaaon Stock, and the par value of each share is one dollar ($1.00). ARTICLE V Election of directors need not be by ballot unless the By-laws of the Corporation shall so provide. ARTICLE VI In furtherance and not in liaitation of the power conferred upon the Board of Directors by law, the Board of Directors shall have power to adopt, anend and repeal fro tine to tis By-laws of the Corporation. ARTICLE VII The incorporator of the Corporation is John H. Fitzsimons whose nailing address is 230 Park Avenue, Suite 659, Raw York, New York 10169. ARTICLE VIII A director shall not havs any personal liability to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director other than liability of a director (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 lav, (ill) under Section 174 of The Delaware Corporation Lav, or (iv) for any transaction from which the director derived an improper personal benefit. X, THE UNDERSIGHED, for the purpose of forming a corporation under the laws of ths stats of Dslaware, do make, fils and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this 5th day of February, A.D., 1988. y \ .. _ _ John H,.FitzSimons State of Delaware - Division of Corporations FAX DOCUMENT FILING SHEET Pnsrtty 1 (Two Hr. Sarvica) DATE SUBMITTED REQUESTOR NAME ADDRESS Priority 2 (Sara* Day) Prteitty a (24 Hour) Octobe^.6<. .1997 Priority 4 (Must Approval*) The Corporation Trust Company ATTN. _______Sue Benson PHONE i 302) 658-7581 J. Priority 5 (Rag, Approvals) Priority 6 (Rag. Work) HL.fi DATE October 6, 1997 FILE TIME 10 a,nu JNC. NAME of COMPANY { ENTITY _______________ . (Cm^tSU, </Ufr jy Cinyml'"-' >- cta-ra^Hii^j SRV NUMBER yo RLE NUMBER gooooio FILER'S NUMBER _______________ RESERVATION NO. TYPE at OOCUMENT -Certificate of Resignation of DOCUMENT CODE---------------126. CHANGE at NAME AGENT / OFFICE--------- CHANGE of STOCK- CORPORATIONS _____________ FRANCHISE TAX YEAR------FILING FEE TAX RECEIVING A INDEXING $ $ $ CERTIFIED COPIES NO.____ SPECIAL SERVICES KENT COUNTY RECORDER $ $ $ NEW CASTLE COUNTY RECORDER 9 SUSSEX COUNTY RECORDER 9 METHOD Of RETURN MESSENGER/PICKUP FED. EXPRESS Acct*_ REGULAR MAIL FAX No. ........ ......... OTHER ------ --... TOTALS "CREDIT CA..R..D....C..H...AR.G...E..S................................................... . .i ......................... ................-..............O.,*`i'!*"j----- orr- aYou my uwencatjon io eftarg* my eredllwd lor W# wfvicftt 5 Signatuta , ....... ....... ...... Printed Nm* --, ,, ....... iijV't--S- XX AOENT UH ONLY INSTRUCTIONS <*> r>' 1, Futy atiada M tha raqulrao Priority aqua** uaing Oaifc parte* or maritar, atajrino within Hia aqtianr. Z. Gaoh raquaatmuM pa aukcniuari a* a aaearmia ttaan, with ita own Mag ahoot aa tha FIRST PAGE. SOD OFS3 03-08-95 STATS OF DZIAH&RE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 10:00 AM 10/06/1991 9713-99690 - 2258680 CERTIFICATE OF RESIGNATION OF REGISTERED AGENT Pursuant to Section 130 of the General Corporation Law of Debmane, THE CORPORATION TRUST COMPANY hereby resigns as Registered Agent of the corporattona toted on the attached Exhibit A. Written notice of resignation was given to the corporation on August 29, 1697 by maV or dattwery to the corporation at ft* last known address a# shown on our records, sakf date being at toast 30 days prior to the fling of this Certttfcate of Resignation. DATED: OCTOBER 1,1967 THE CORPORATION TRUST COMPANY BY: WHBmn J. Raif WJBtamJ. Raff Assistant Vk President EXHIBIT A COMPANY NAME ACC DISSOLUTION CORP. ACI DEVELOPMENT,. INC. Ad RECOVERY, INC. ACS ACQUISITION CORP. ADUCO INTERNATIONAL INC. ADVANCE PAPER AND CHEMICAL COMPANY ADVANTAGE COMPANIES, INC. All PROPERTIES INC. All REALTY INC. AKA CORP. ALDEC. INC. ALLEW INC. ALLIANT COMPUTER SYSTEMS CORPORATION AMBELOS CORPORATION AME HOSPITAL SERVICES, INC. AMERICAN FILM TECHNOLOGIES, INC. AMERICAN INVSCO CORPORATION AMERICAN MEDICAL ENTERPRISES, INC. A.M. KEEFE TRANSPORT, INC. AMLAND PROPERTIES, INC. AMPLAS CORPORATION FILE NUMBER 2258880 2186311 2461737 2210185 2310480 0883408 2442248 2212880 2224145 2564184 2213112 2111783 0937536 0824884 2106985 2085847 0781731 2301849 2212343 2043221 2190639 COMPANY NAME mg NUMBER ANCHOR SUM REALTY CORPORATION 2132289 APOTHECARIES, INC. APPLIED PROFESSIONAL SYSTEMS, INC. 2193889 2036629 ARAMARK R8(, INC. ARMACOff CONTRACTING INCORPORATED A8CHE LEASING, INC. * 2329889 2326123 2469087 ATLANTIC STATES BANKCARD ASSOCIATION, MIC. 2329889 AUBREY NATURAL ORGANICS, INC. AURORA INVESTMENT CORPORATION 2272178 2023781 AUTOGRAPHIX, INC. 0829760 AVALON DEVELOPMENT COMPANY OF FlOR&A, WC, 2090623 AVIATRtX CORPORATION 2143828 BARGELAND COUP. 0748112 BAROREOIICORP. 2218284 BAYFIELD CORPORATION so AcouisrriON corp, 0832004 2247074 BEACHFRONT MV89TMENT CORPORATION 0744812 BETTER BUSINESS SERVICES, INC. 2382886 BIO-TECHNOLOGY GENERAL CORP. 0894913 BRAHMA. INC. BRASSIE CONSTRUCTION MANAGEMENT SERVICES, INC. 2248047 2361446 BRITTANY HOLDINGS, INC. 2262984 BROAD STREET SALES CORPORATION 0282410 BROOKINS CORPORATION 084B29B CAMBRIDGE PRODUCTS LIMITED 0895748 CANIZARO DEVELOPMENT CORPORATION 2239120 CAPRICORN RECORDS HOLDINGS INC. 2389864 CAROLYN KINDER DESIGNS, INC. 2270509 CARPENTER PAPER COMPANY 0860784 CARPET MAGIC, INC. 2392177 CARROLL INTERNATIONAL CORPORATION 0881571 CASTOR LEASING INC. 2128178 CATALYST ENERGY CONSTRUCTION CORPORATION 2013687 CATCH A RISING STAR, INC. 2083577 CDI DISSOLUTION COUP. 2242166 CELLULAR INFORMATION SYSTEMS ACQUISITION CORP. 2151724 CENTAURUS INC. 2164045 CENTEL CAPITAL CORPORATION 2148330 CHAYES VIRGINIA, INC, 2086293 CHEETAH III, INC. 2224809 CHEMICAL SHAREHOLDER SERVICES GROUP, INC. 2302086 CHRISTIAN SALVESEN OIL <t GAS INC. 2024142 CHURCH & DWIGHT SALES CORPORATION 0787332 CINCINNATI MILACRON INTERNATIONAL SALES CORPORATION 0777478 CLEMENCY INVESTORS, INC. 2079187 COAST MARKETING CORP. 2405964 COMPANY.HAKE CONSTABLE ASSET MANAGEMENT LTD. CONTMENTAL ENERGY MARKETING INC. CONTROL KSPCRDICIOS SOUOOS. MC. COUNTERPOINT INTERNATIONAL MC. COURTAULDS DEFENSE PRODUCTS. INC. % CONVENIENT FOOD MART FRANCHISING CO. CONVEX COMPUTER (CHINA) INCORPORATED COORDINATED CARE MC. OQRTEC INDUSTRIES, MC. COSTA MESA RESOURCES. MC. CPAX. MIC, CROWN HOLDING COMPANY CUMMINS PROFESSIONAL TRAINING CENTER, INC. CURIODYSSEY ENTERTAINMENT, INC. DAIRY ENTERPRISES CORPORATION DAKIVA MARINE, MC. DANA EMC EXPORT CORPORATION DAWN OFFICE PROPERTY COMPANY DEDHAM HOLDINGS, MC. DELAWARE HEALTH CORPORATION DH ESTATES, INC. DIGITAL IMAGING TECHNOLOGIES, MC. PKM REALTY HOLDING COMP. DNP HOLDING (USA) CORPORATION FI1P UIIMBER 2156460 2270002 2191630 2109361 2188464 2170230 2300211 2268067 2076740 2042611 2383834 2334686 2110842 2484186 2076850 2297302 2336908 2271088 2224410 2368148 0678774 2413498 0796782 2206007 {^MpAIIY MAMF DORADO BEACH DEVELOPMBIT, INC. FH MUMREH D570821 OOREMUG * COMPANY 0691304 DftAHCtlt MALTY CORP. 2073614 OUNPHY HOLDING COMPANY, INC. 2118301 DYNAMIC CONSTRUCTION MC. eaglenet, inc. % EDUCATION GROUP. MIC. (THE} 2070873 2434344 22S9S21 E.G.6. INVESTMENTS, LTD. . O03S136 1KCO/GLACO INC. 2043100 EL DORADO CONTRACTORS INC. 2336843 EMERALD ACOUtHTION CORPORATION 2100627 ESPEIIO NUEVO INCORPORATED 2468408 EVANGELINE, INC. 0880639 EVERGREEN MENA CORPORATION OP THE BAY AREA 2460992 EVERGREEN RETIREMENT MANAGEMENT COMPANY 2278101 FAtRWEATHER CORP. 2044668 FALCON CAPITAL CORPORATION 2368856 FAMILY FASHIONS OUTLET STORES. INC. 0844776 PCD HOSPITALITY MIC. 2166031 FEDERATED GROUP, INC. (THE} 2018404 FERROUS PARTNERS. INC. 2233374 FIRST AMERICAN MOLDINGS, INC. 2128200 RTZ AMD FLOYD FACTORY OUTLET OF SILVER SPRING MARYLAND, MC. 2293503 PLIGHT G.IMWC. 2286983 F.N. MANUFACTURING, INC. FONTHAUS INC. FOREST HILLS LAND COMPANY FPF CORPORATION FRIEZE, INC. FRIPP FIBRE CORPORATION FRV BETHESDA, INC. F. & W. FARMS INC. GENENCOR U.K. LTD. GEO HOLDING COMPANY GEOTHERMAL RESOURCES (U.K.I LIMITED G. F. R. RENTAL, INC. GLEOT CORPORATION GO*VIDEO FRANCHISING, INC. GRACE E. COMPANY (THE) GREENTREE CHILD CARE SERVICES, INC. GREFCO EXPORT CORPORATION GRIPPLE INCORPORATED GUTHRIE PROPERTIES, INC. HADOON HALL INC. HANNA-BAR8ERA MUSIC CORP. HEALTHSHARE USA, INC. HEDDA INC. 0862739 2224470 0772493 2119862 2221612 2206732 2231572 08047G7 2179247 2434609 2011745 2107530 2030928 2121188 2412140 2227287 0779936 2217207 0124128 2380136 0820198 2515203 2362489 HILLSIDE BROADCASTING OF LOUISIANA, INC. 2468031 HILLSIDE BROADCASTING OF NORTH CAROLINA, INC. 2413681 HN ACQUISITION CO. 2304671 HYATT OIL COMPANY 0862079 (All (LATIN AMERICA), LTO. 2071877 IPS MANAGEMENT CORPORATION IHS OAKWOOD HOSPITAL OF WINDSOR, MISSOURI, INC. 2632438 2202093 INDUSTRIAL APPARATUS MAINTENANCE. INC. 2171736 INNCORP MANAGEMENT CORPORATION 2060784 INORGANIC RECYCLING CORPORATION 2181962 INSURANCE PROCESSING SERVICES, INC. 2175007 INTEGRATED DISTRIBUTION SYSTEMS, INC. 2105898 INTERACTIVE MEDIA INTELLIGENCE CO. 2221083 INTERNATIONAL ADVISORS, INC. 2233098 INTERNATIONAL ASSOCIATION OF MERGER AND ACQUISITION CONSULTANTS 0604504 INTERNATIONAL CENTER FOR INFORMATION, INC. 2278472 INTERNATIONAL MEDICAL RESEARCH ASSOCIATES LTD. INVESTOR SERVICES CORP. IRDC ESTATE, INC. J- A. SEXAUER. INC. JENN INDUSTRIES INCORPORATED JOINT INVESTMENTS, INC. 2320437 2103603 0720318 2152475 0860006 2240109 KBL COMMUNICATIONS, INC. 2438932 KM RESOURCES, INC. KENOAIX SQUARE RESEARCH CORPORATION KIDS MEDICAL CLUB OP ILLINOIS WO. KINDER-HARMS, INC. KMC CUPFDALE DEVELOPMENT ASSOCIATES, INC. KC REALTY COUP, m RESTAURANTS. INC. KW SOFTWARE, WC. LANCASTER FINANCIAL CORPORATION LANCER ENTERPRISES, INC. ' LARIBEB WIRE MANUFACTURING COMPANY, INC. LEA8EPAKTNER9 FINANCE CORP. K LEMCO CONSTRUCTION, INC. LEPERCO TAUAHA88EE, INC. LGI ELECTRICAL DMTfUBUTION CROUP, INC. UMBO PRODUCTIONS LTD. LONGHORN MTERNATIONAL EQUIPMENT, INC. LOW COST UNKING, INC. LULL ENGINEERING COMPANY, SIC, LUX-DESIGN CORP. MACHINERY DISTRIBUTION. INC. MAE FINANCE. INC. MAGIC ENTERTAINMENT CORPORATION MAREX.tNC. *2*973* 2082647 2293904 2197291 2234180 2138812 2380033 2289073 2188883 2230778 0881804 2438819 2009383 2188136 2208238 2153889 0824822 2017918 0799328 0937870 2001819 2290798 2611348 2031138 HI E NUMBER MARTRES. INC. 2060877 MCDONNCU, INFORMATION SYSTEM* LIMITED PACIFIC, me. 21S0488 MCP SUPPLY COUP. MEADOWACRES HOLDINGS UMTTfiD , 2368660 2207066 MGADOWBROOK REHABILITATION GROUP, MC. 2103346 MEOMA8TEH SYSTEMS OF CALIFORNIA, INC. ' 2064270 MEJ MARINE, INC. 0843309 MERUN PHARMACEUTICAL CORPORATION 2343906 METAL SPINNERS. MC. 0976199 MIDDLE EAST TRADE INVESTMENT CENTER (METICJ, INCORPORATED 2380282 MtNCO ACQUISITION CORPORATION 2171019 NWSS TERRI, MC. MODERN DAIRY OF CHAMPAIGN, INC. MOLDINGCRAPT CORPORATION 0068128 2667841 0770791 MOUNTAINEER BOLT INC. 2197280 MOUNTAINPUGHT, INC. 2093070 MFC GROUP WC. m> 2178878 MSS ESTATE, INC. MUNCH'S MANAGEMENT COUP. 2197733 0944882 MUNSON TRANSPORTATION. INC. 2081239 NAC LEASING CORP. 2289777 NAJDII CORP. 2188989 NATIONAL ASSOCIATION OF MERGER AND ACQUISITION CONSULTANTS 0791944 CCMPAMYKAWE NATIONAL CITY MANAGlMWtT COMPANY NATIONWIDE REMITTANCE CENTERS WC. NATIVE AMERICAN HEALTH CONSULTANTS, INC. NEW AGE ADVERTISING, INC, NEWPORT POINT, INC. * NEWSBAMK, INC. NEW TftADEWtNDS CORP. nich h me. NIL CORPORATION NILTIAC TRADING (HJU INC. Nt WINCHESTER REALTY CORP. NOFABO, WC. NORLAND CORPORATION OLD FURNIVAL COMPANY OMNIMOOAL DEVELOPMENT CORPORATION OUTDOOR WORLD, LTD. OVERSEAS MEDICAL CORP. OXEYE CORPORATION PALAVER SYSTEMS. INC. PATHS TS, INC. PB8A CORP. PCS BUILDING SYSTEMS OP AMERICA, INC. POO OP DELAWARE, INC. PEACHTREE SOFTWARE, NIC. piNMUMEgl 0629609 2070806 2137467 2122961 2312327 2009791 2240744 2462162 2132S66 2162469 2318623 2038317 2236346 0788607 2363464 0773706 2304866 2090617 2240107 2064821 2312808 0890674 2434607 2174176 COMPANY NAME PEGASUS TRADING GROUP, INC. WLE NUMBER 2036783 PEMN-PACIBC COW. 0772263 PERCHERON WCORPORATED PLANT HOLDING. INC. PREMIER GAMING MANAGEMENT. INC. PRESIDENT BAKING COMPANY, INC. PRESTIGE TRACING CORPORATION ' 0923249 0937868 3400091 2027883 3229217 PR0COFRANCE A. 2019973 PROFESSIONAL SURGERY MANAGEMENT CORPORATION 2311089 QUAURT KITCHENS LIMITED 2309804 O.E.D. PUBLISHING COMPANY 2299927 RABEL AVIATION. INC. 2349201 REALTY INTERHATONAl CORPORATION 0699498 REFRIGERATION SYSTEMS. INC. 2419328 REGNOS CORPORATION 0919297 REUTERS COMMUNICATIONS INC. 2092381 RHINELANDER TEXAS MGORPORATEP 2226608 RIMON U.S., MG. 2009394 RMF REALTY SERVICES, INCORPORATED 2009332 RAM HOLDING COMPANY 2192922 ROBERT A. CHAISSON INC. 20312S2 ROBERT C. ARCHER. INCORPORATED ROBINSON CHANCE MVTSRPmSEB, INC. ROCKFORD AUTOMATION, NIC. 0737110 0499190 0681320 gQMESHY HAMS R0SEN8UM WIRELESS, WC. nosa-mwo mbrchanpwe corporation RCT BOSTON REALTY. WC. SAMPSON INTERNATIONAL CORPORATION SANBORN INC. ' SAND CASTLE MARINE SERVICES, MO. sANOPomrr design, inc. SANTA PE BIEROY RESOURCES Of BOLMA. INC. SANTA PE PACIFIC FUELS COMPANY SAPCO. LTD. SAZALE (USA) CORPORATION SCHSIING BERUN CAPITAL CORPORATION 8D3S WfNO-UP CO. SEADRILL, (NC. SECOMA U.S. INC. SECURED TECHNOLOGIES LTD. SECURITY FIRST MANAGEMENT CORPORATION SERACARE. INC. SEKVICECO TRANSACTIONS MID-ATLANTIC, INC. SFFB HOLDINGS, INC. SHANGRI-LA STABLES, INC. SHOEMAKER ENTERPRISES, WC. SIEGFRIED CONSTRUCTION CO.. MC. 2328868 (Msseas 2318876 obsssso at 17708 2041080 2387478 2221023 20B0477 2473281 2193338 2201301 0618880 0080788 2202882 2361100 2088103 2276088 2802348 2112448 0848540 0640618 2088744 COMPANY NAME SIGNAL MANAGEMENT CORPORATION 9IMKINS NDU3TMES OP PUERTO RICO, INC. SKY BOX HOLDING COMPANY, MC. SOMERSET COUP. 4 SOUTHERN ALUMINUM STEEL CORPORATION SOUTHPORT INVESTORS, INC. SOUTH TEXAS PIPCUNS COMPANY SOUTHEASTERN DIAGNOSTIC SERVICES, INC. SPSCO CORPORATION SPIN POROE. me. STAFFORD LAKES CORPORATION STAR FACTORY. MC. STSRLiNOCAfte 0ROUP, LTD. (THE) STEWART INVESTMENTS, INC. STIMMELINDUSTfMES, NIC. STORK QAMCO SIC. SURFTEK INTERNATIONAL, INC. 3WPP KVSLOPMBIIT CORPORATION SJY LEGEND, INC. TAI, INC. THOMSON MCKINNON LEASING SIC. THOMSON MCKINNON SECURITIES SIC. TlPtAK INC. TLA ASSOCIATES, INC. FTLg HUltBgR 0083112 081964S 237868S 2*18482 0842807 2198933 2131487 2218942 2008921 2203SS9 2342089 2170691 2832806 2179766 0817903 2379088 2199181 2388788 0719909 0948486 0677030 2226884 2329101 WUI NUMBER TONY EVANS ENTERPM6ES, WC. TOWERS FINANCIAL CORPORATION 0810032 2082482 TRAN8CO EXPLORATION PROJECTS COMPANY 2234848 TRMX'MC. TMNADA, WC, 2368088 ` 2243803 T8C KOLDWQ COMPANY, INC. 2383810 TSC SERVICE CORPORATION, ftIC. 2383811 OCI MANAGERS. WC. . 2440718 ONION STEEL CORPORATION 0692828 UNION TECHNOLOGIES INC. 2034382 UNITED MEDiCOAP FINANCIAL CORPORATION 2240722 UNITED PETRON ENERGY, MC. 2478228 UNITED PETRON OPERATING COMPANY 2478227 U.S.I.V. CORP. 0840S8B UTAH GRUZUES PROFESSIONAL HOCKEY COW, INC. UTC HOUMMOS, INC. 2398568 2320817 VIDEO SOFTWARE DEALERS ASSOCIATION OF PORTLAND, MC. 2079888 VILLAGE LlllCOUMEERCURY MOTORS, INC. 0844613 WALLACE FURNtTUAC, MC. 2178177 WANNER WORLDWIDE COMMUNICATIONS, INC. 2277228 Wft WIND-UP CO. 2111848 WEB8/AMEWCA INCORPORATED 20BB38B WOMAN CO., MC. 0689324 WESTERN COLORADO SOOT A MOCCASIN CORPORATION 2381123 COMPANY NAME WESTERN EXPLOSIVES SYSTEMS COMPANY WESTERN UCN CORPORATION W.H. CORPORATION WIDBWATER lOELAWAWR CORPORATION WWC TRADINO CORPORATION XRKNE CORPORATION 4S OIC. (TtfEt 400 SECOND STREET CORPORATION 1801 CENTURY PARK EAST INCORPORATED 1000 NET. INC. 10070 NCECC, INC. FILE NUMBER 2266663 1122867 2128080 2283642 0077202 2202810 0704306 0960006 2043802 2807466 2118696 CERTIFICATE OF RESTORATION AND REVIVAL OF CERTIFICATE OF INCORPORATION OF 1. A. SEXAUER, INC. It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation'.) is J. A. SEXAUER, INC. 2. The corporation was organized under fbt provisions of the General Corporation Law of tl Stats of Delaware, on the nineteenth day of February, 1988. 3. The address of the registered office of the corporation in die State of Delaware and the name of the registered agent at such address are as follows; Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle. 4. The corporation hereby procures a restoration and revival of its certificate of incorporation, which became inoperative by law on November 5, 1997 pursuant to Section 136 (c) of the General Corporation Law of the State of Delaware. 5. The certificate of incorporation of the corporation, which provides for and will continue to provide for, perpetual duration, shall, upon the filing of this Certificate of Restoration and Revival of the Certificate of Incorporation in the Department of State of the State of Delaware, be restored and revived and shall become folly operative upon filing. 6. This Certificate of Restoration and Revival of the Certificate of Incorporation is filed by authority of the duly elected directors as prescribed by Section 312 of the General Corporation Law of the State of Delaware, Signed on January 26, 1998 John H. FiigSimons Vice President and Secretary STATS OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILEoDai0m9n:0/0viAH_ 01*/277/1998 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 12:00 PR 12/26/2000 001648332 - 2153409 CERTIFICATE OF OWNERSHIP AND MERGES OF JA SEXAUER, INC., TRAYCO OF S.C., INC.. BARNETT INC., U.S. LOCK CORPORATION, INTO WILMAR INDUSTRIES, INC. ITIS HEREBY certified that: 1. Warn Industries, Inc. (the "Corporation"! is a business corporation of the State ofNew Jersey. 2. The Corporation is the owner ofall ofthe outstanding shares ofthe stock ofJ.A. Sexauer, Inc. ("Ssssua''), Trayco ofS.C., Inc. ("Travoo"!. Bamctt Inc. ("Barnett**! and U S. Lock Corpontion f"US Lode"! (collectively, the "MSHfilrisO* which are business corporations ofthe State ofDelaware. 3. On December 20,2000, the Board ofDirectors ofthe Corporation adopted the foliowing resolutions to mage the Subsidiaries into the Corporation: RESOLVED, that, pursuant to Section 253 ofthe General Corporation Law ofthe State ofDelaware, the Corporation and the Subsidiaries, which are whollyowned subsidiaries ofthe Corporation, be merged on the Mowing icons and conditions (the 'Merger") (a) The Corporation shall continue to be incorporated and duly organized under the laws of the State ofNew Jersey. The Subsidiaries shall be tire merged corporations and their separate existence shall thereupon cease. (b) The eScctive date ofthe Merger (the "Effective Time"! shall be December 29,2000. (c) The issued shares ofthe Subsidiaries shall not be converted in any manner, but each add share which is issued as of the Effective Time shall be surrendered and extinguished (d) At the Effective Time, the Certificate ofIncorporation of the Corporation, as in effect immediately prior to the Effective Time, shall be the Certificate ofIncorporation ofthe Corporation, as the surviving corporation, until thereafter restated or amended In accordance with applicable law. UN#: NYS; SW7S1.J (c) The By-laws ofthe Corporation, as in effect Immediately prior to the Effective Time, shall from and after the Effective Time become and remain the By-laws ofthe Corporation, as the surviving corporation, until thereafter amended or restated as provided therein. (f) The officers and directors ofthe Corporation in office on the Effective Time shall remain in the same capacities as officers and directors ofthe Corporation, as the surviving corporation, until their successors have bear duly fleeted and qualified. (g) Upon the Merge* becoming effective, the Corporation, as ths surviving corporation, shall M*un*s all ofthe rights, privilege*, powers, franchises, duties, liabilities and obligations ofeach ofthe Subsidiaries and the Corporation. (h) The executed Agreement ofMerger is on file at an office of Wilmar, the address ofwhich is as follows: 303 Harper Drive, Moorestown, New Jersey 08057, (t) A copy of the aforesaid Agreement ofMerger will be fUraished by Wilmar, on written request and without cost, to any shareholder ofany of the Subsidiaries, (j) 7be Corporation shall agree that it may be served with process in Delaware in any proceeding for enforcement of any obligation of any oftiat Subsidiaries, as well as for enforcement ofany obligation arising from the Merger, including any suit or other proceeding to enforce the right ofany stockholders at determined in appraisal proceedings pursuant to Section 262 ofthe General Corporation Law of the State ofDelaware, and shall irrevocably appoint the Secretary of State as its agent to accept service ofprocess in any such suit or other proceedings. The address to which the Secretary of State shall mail a copy of process in any action or proceeding against the Corporation which may be served upon the Secretary of State is: 303 Harper Drive, Moorestown, NJ 08057, (k) Any officer ofthe Corporation shall be, and each ofthem hereby is, authorized to execute, and the Secretary or Assistant Secretary ofthe Corporation is hereby authorized to attest to the execution of a Certificate ofOwnership and Merger of the Corporation and the Subsidiaries, and any officer ofthe Corporation shall be, and each of them hereby is, authorized to cause the Certificate of Ownership and Merger to be filed with the Secretary of State ofthe State ofDelaware, (l) Anything herein or elsewhere to the contrary notwithstanding, the terms and conditions ofthe Merger may be amended, and the Merger may be terminated and abandoned, to the tidiest extent permitted bylaw, by tile Board ofDirectors ofthe Corporation at any time prior to the date Offiling ofthe Certificate of Ownership and Merger with the Secretary of State of the State ofDelaware. Dm* NYS: *3S74l,S RESOLVED, tiial 8i^ of^Corporiiwfl be, and eadi of hereby is, authorized and empowered, in the name and on behalfofthe Corporation or Ha subsidiariea, to take any action (ioclm&jg, without limitation, the payment ofexpense*) and to execute (by manual or facsimile signature) and deliver *11 such further documents, officer or officers may in their sole discretion deem necessary or appropriate to cany out, comply with and effectuate the purpose* ofthe foregoing resolutions and the transaction* contemplated thereby and that the authority of such officers to execute and deliver any of extension or expansion, and to take any such other action, shall be conclusively evidenced by their execution and delivery thereofor their taking thereof [Remainder ofthis page left intentionally blank] Doc* wrs cm.s l CT Lien Solutions Search Results Deliver To: Visit wtmv.iLienonline.com and view your results electronically. ATTN: PAMELA OLSEN JENNIFER VILLA From: KAZAN,MCCLA1N,ABRAMS,FERNA CT LIEN SOLUTIONS SACRAMENTO NDEZ,LYONS,FARISSE 1232 Q STREET & GREENWOOD A PROF. LAW SACRAMENTO CA 95811 CORP Ph: 8003442382 Ex: 0221 171 TWELFTH ST., THIRD FL. Fax: 8007804795 OAKLAND,CA 94607 Email: udssorders@uccdirect.com Ref: RONALD BLATT Date: Client #: Subject: Jurisdiction: Search Type: 13-Nov-200912:28PM 251397 J.A. SEXAUER, INC. 0917889 DE Secretary of State Order#: 20896958 Certified Charter Documents with All Amendments/Mergers Item#: 1 Through Date: 12-Nov-2009 Results: Certified Copies Attached Comments: Disclaimer: CT Lien Solutions provides the best copies available from the jurisdiction. This report contains information compiled from sources which CT Lien Solutions considers reliable but does not control. CT Lien Solutions in no way undertakes or assumes any part of the customer's business, legal or similar risks, and does not guarantee the accuracy, completion or timeliness of the information provided, and shall not be liable for any losses or injuries whatever resulting from any contingency beyond its control, or from negligence, regardless of the cause.______________________________ `Delaware The first State PAGE 1 1, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "J.A. SEXAUER, INC. " AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE SEVENTH DAY OF JULY, A.D. 1981, AT 10 O'CLOCK A.M. CERTIFICATE OF DISSOLUTION, FILED THE SIXTH DAY OF AUGUST, A.D. 1984, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, "J.A. SEXAUER, INC.". 0917889 8100H 091010586 You may verify this certificate online at corp,delaware.gov/avthver.ehtml J.A. SEXAUER, INC. Certificate of Incorporation F 1 i: E D mjul 7 JffotjUn wiirm m THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and putsuanfc to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: ARTICLE I The name of the Corporation is J.A. Sexauer, Inc. ARTICLE II The address of the registered office of the Corpora tion in the State of Delaware is No. 100 West 10th Street, in the City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such registered office is The Corporation Trust Company. ARTICLE III The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. ARTICLE IV The total number of shares of stock which the Corporation shall have authority to issue is one thousand 00002 (1,000) shares of Common Stock, and the par value of each such share is one dollar ($1,00). ARTICLE V The amount of the authorized stock of the Corpora tion of any class or classes may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote. ARTICLE VI Elections of directors need not be by ballot unless the By-laws of the Corporation shall so provide. ARTICLE VII In furtherance and not in limitation of the power conferred upon the Board of Directors by law, the Board of Directors shall have power to adopt, amend and repeal from time to time By-laws of the Corporation. ARTICLE VIII The incorporator of the Corporation is Valerie Casey, whose mailing address is Room 4500, 140 Broadway, New York, New York 10005, The powers of the incorporator are to terminate upon the filing of this Certificate of Incorporation. 00003 2 ARTICLE IX The name and mailing address of the person who is to serve as the sole director of the Corporation until the first annual meeting of stockholders or until his successor is elected and qualified is as follows: Name Robert L. Wallace Mailing Address Suite 659, 230 Park Avenue New York, New York 10017 IN WITNESS WHEREOFr I have hereunto set my hand and seal this 2nd day of July, 1981. In the Presence oft 00004 3 190213 CERTIFICATE OF DISSOLUTION EICED m ***, Of J.A, SEXAUER, INC. 0 BY UNANIMOUS CONSENT OF SOLE STOCKHOLDER THE UNDERSIGNED, being the ole owner end holder of all the outstanding stock entitled to vote of J.A. Sexauer, Inc*, a corporation organized and existing under the laws of the State of Delaware, DOES HEREBY GIVE ITS CONSENT in writing to its dissolution pursuant to Section 275 of the General Corporation Law of the State of Delaware, and does sign this consent to the end that it may be filed in the office of the Secretary of State of Delaware. IN WITNESS WHEREOF this certificate has been executed this 30 day of THE DYSONdSIS 5R-M0RAN CORPORATION Robert t. Wallace, Vice President 00002 S I OFFICERS AFFIDAVIT STATE OF NEW YORK J COUNTY OF NEW YORK 1 SS. Robert I> Wallace, being duly sworn, deposes and says that he is the President of J.A. Sexauer, Inc, and that? FIRSTi The foregoing consent to the dissolution of the corporation has been signed by or on behalf of the sole stockholder entitled to vote on a dissolution; and SECOND; That the names and residences of tha directors and officers of J.A. Sexauer, Inc. are as follows* DIRECTORS Name Residence Robert L. Wallace 12 Silver Lakes Drive Darien, CT 06820 OFFICERS Name Office Residence Robert L. Wallace President 12 Silver Lakes Drive Darien, CT 06820 Victor E. Ameye, Jr. Treasurer Lookout Lane Washington Crossing, PA 189' Wynne Ahlgren Secretary 53 Oakledge Road Subscribed and sworn to before me this 30 day of CHRISTINE WtNKELMAN Notay PuMet Start# oi Naw vffc . tto, 24-01WI4SWI7 QusHfM fn Kingas Cotunty March 30. t9^(p //'COMMAND: DSP SCREEN:.TAX FILE*NO: 0917889 * CORpi STAT=D 009178-69 J.A. SEXAUER, IMG --* *41 ...#........ - -...... TAX HISTORY - YEAR ys49&4--v ----DUE H ADJUSTMENT PAID ' TAXES .... 30,-00......... 30.00 INTEREST PENALTY YEAR: INDEX; SCREEN; TAX/ ^ - .......... * #..... .*--.* . ..it-- PETITION/EXTENSK CHECK OHQS OATES & STATUS .196.3 DUE ? ADJUSTMENT -P-ATD-- , DUE Moment- paid 20-00 -- .-2.0-.--OQ------02/28/1984 20/00 20.00 02/22/1983 059000491 340733 -- ~/gpi - . ; ^ /' 9.00 ' /. `-V/'' . -' . ' ^^OMMA^ib; -iOSP SCREEN: FEP FILE NO; 9028410 i- i. t..v.r w.vCbs-< ' / REQ ; 642190213 IhDE&j ' >.01 ' ', 0,917889 ; J A. -SEXAUER. INC. DtsSObut 1 ON ,. STOCK CORPORATI ON ----- RCYN&^HSDEX r - 10.00 :-2.e; 09 ........ 25.00. ; ... '<:>' , ..... **, S-,5 jL?/*:.-.'. rjigi' ?yy-. ' - y.jj * " -^Am0i:itff RG"- -STAT* 1 tedO^'Z-10 DYSON-KISSNER-MORAN CORPORATION .lU;V-j^v`/ r*/ -iA.f : L _;\/' "'* /'L_ _ ' S E RVICE REQUEST PAYYMMEE* NT RECORD SCREEN: ; FER/^R,t :.' .' 2061, ---Ct^r$vDC- --1^-eePOS-E^ED- ,30.00 D DEPOSITED 6933" 08/Dfr/ 498*----6474 08/20/1984 ' XV / ..//'TOTAL PAYMENTS; .. ;-. " ' ' . -tf2vvAr * s~. %' 85.00 'A--:\:X SERVICE RQST BALANCE: D.CO CT Lien Solutions Search Results Deliver To: Visit www.iLienonline.com and view your results electronically. ATTN: PAMELA OLSEN JENNIFER VILLA From: KAZAN,MCCLAIN,ABRAMS,FERNA CT LIEN SOLUTIONS SACRAMENTO NDEZ,LYONS,FARISSE 1232 Q STREET & GREENWOOD A PROF. LAW SACRAMENTO CA 95811 CORP Ph: 8003442382 Ex: 0221 171 TWELFTH ST., THIRD FL. Fax: 8007804795 OAKLAND,CA 94607 Email: udssorders@uccdirect.com Ref: RONALD BLATT Date: Client #: Subject: Jurisdiction: Search Type: 13-Nov-2009 12:24PM Order #: 20896958 251397 THE DYSON-KISSNER-MORAN CORPORATION DE Secretary of State Certified Charter Documents with Ail Amendments/Mergers Item#: 3 Through Date: 12-Nov-2009 Results: Certified Copies Attached** Comments: **Please note that per your instructions, documents were obtained from 1970-1999 only. Disclaimer: CT Lien Solutions provides the best copies available from the jurisdiction. This report contains information compiled from sources which CT Lien Solutions considers reliable but does not control. CT Lien Solutions in no way undertakes or assumes any part of the customer's business, legal or similar risks, and does not guarantee the accuracy, completion or timeliness of the information provided, and shall not be liable for any losses or injuries whatever resulting from any contingency beyond its control, or from negligence, regardless of the cause.* `Delaware `Ifie first State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF TEE STATE OF DELAWARE, DO HEREBY CERTIFY TEE ATTACHED IS A TRUE AMD CORRECT COPY OF THE CERTIFICATE OF RETIREMENT OF "THE DYSON-KISSNER CORPORATION", FILED IN THIS OFFICE ON THE TENTH DAY OF APRIL, A.D. 1970, AT 10 O'CLOCK A.M. t 0558820 8100 091013314 You may verify this certificate online at corp. dalsnacs. gov/authrer. shtml DATE: 11-12-09 J THE DYSOH-KISSNER CORPORATION CERTIFICATE OF REDEMPTION OF PREFERRED STOCK OUT OF CAPITAL The Dyson-Kissner Corporation, a corporation organ ized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as followsi FIRST: That pursuant to the provisions of section 243 of the General Corporation Law of the State of Delaware, and subject to the provisions of its Certificate of Incorpo ration, One Thousand Two Hundred Twenty-Three (1,223) shares of its issued and outstanding $4.00 Non-Cumulative Preferred Stock were redeemed. SECOND: That the capital of the corporation is here by reduced by the amount of capital which was applied to such redemption, to wit One Hundred Twenty-Two Thousand Three Hun dred Dollars (*122,300) which amount is the same as the amount of capital represented by the shares so redeemed. THIRD; That the assets of the corporation remain ing after such redemption are sufficient to pay any debts of the corporation, the payment of which has not been otherwise provided for. IN WITNESS WHEREOF, The Dyson-Klssner Corporation has caused Its corporate seal to be hereunto affixed and this . certificate to be signed by Frederick W, Beck, Its Vice Presi* dent, and attested by Wynne Ahlgren, its Assistant Secretary, thlsA*Aday of , 1970. THE DYSON-KISSNER CORPORATION STATE OP NEW YORK COUNTY OP NEW YORK, BE IT REMEMBERED that on this 1970, personally cane before me, a Notary Public in and for the Coun ty and State aforesaid, Frederick W. Beck, Vice President of The Dyson-Kissner Corporation, a corporation of the State of Delaware, and' he duly executed said certificate before me and acknowledged the said certificate to be his act and deed and the act and deed of said corporation and the facts stated therein are true? and that the seal affixed to said certifi cate and attested by the Assistant Secretary of said corpora tion is the common or corporate seal of said corporation. IN WITNESS WHEREOP, I have hereunto set my hand and seal of office the day and year aforesaid, MMMtUE l. POCK notary pubuc, sw w * Vo* Ns. M-B-ttWO QwoBfrtd to BmxK CMMy (Delaware dHe lfirst State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF OWNERSHIP OF "THE DYSON-KISSNER CORPORATION", FILED IN THIS OFFICE ON THE TENTH DAY OF NOVEMBER, A.D. 1972, AT 10 O'CLOCK A.M. 0558820 8100 091013314 Jtou may verifyUiis oortifieatajiimiii* of ownership ass kkrgeb m mcat-KissssR corporation (be&jxm*) pysoK-iassm properties, mo. {dewdch.) if-16 /3 CERTIFICATE OF OWNERSHIP AND MERGER MERGING DYSON-KISSNER PROPERTIES, INC. INTO THE DYSON-KISSNER CORPORATION (Pursuant to Section 253 of the General Corporation Law of the State of Delaware) THE DYSON-KISSNER CORPORATION, a Delaware corporation (the '`Corporation"), DOES HEREBY CERTIFY THAT*. FIRST: The Corporation was incorporated on October 28, I960 pursuant to the General Corporation Law of the State of Delaware. SECOND: The Corporation owns all the outstanding shares of the capital stock of Dyson-Kissner Properties, Inc. ("DKP"), a corporation Incorporated on September 13, 1968 pur suant to the General Corporation Law of the State of Delaware. THIRD: The Corporation, by the following resolu tions of its Board of Directors duly adopted by unanimous " written consent of its members on November 1, 1972* det*'mined to merge Into Itself DKP: that the Corporation, pursuant to Section 253 of the General Corporation Law of the State of Delaware hereby determines to merge Dyson-Kissner Properties, Inc. (nDKPM) Into the Corporation and to assume all of the obligations of DKPj RESOLVED, that the proper officers of the Corporation are hereby directed to make and execute, under the corporate seal of the Corporation, a Certificate of Ownership and Merger setting forth a copy of the resolution to merge DKP Into the Corporation and to assume all of the obligations of DKP, and the date of adoption of such resolution, and to cause the same to be filed with the Secretary of State of the State of Delaware and a certified copy to be recorded in the office of the Recorder of Deeds of Rew Castle County, Delaware, and to do all acta and things whatsoever, whether within or without the State of Delaware, which may be in any way necessary or proper to effect such mergerj and RESOLVED, that the merger shall become effective upon the date of filing with the Secretary of State of the State of Delaware. IB WITBESS WHEREOF, the Corporation has caused this certificate to be executed by its Viee President, and attested by its Assistant 1972. THE DYSON-KISSNER CORPORATION Attest: Frederick W. Beck Vice President A.* a: Secretary 2 STATE OF DEUWAM SECRETARY OF SttJS - DOVER, DEL ** STATEMENT OF FRANCHISE TAX DUE * 1 NOTICE . , 1)51132 CHECKS SHOULD REMADE PAYABLE TO* SECRETARY OF STATE OF DELAWARE AND MAY FORWARDED TO YOUR DSAWARE REGISTERED AGENT FOR TRANSMITTAL DYSOH-KISSNER PROPEraUfS, INC * 68?Q-26 GORP. TR. CO. ` UQV, 10, 1972 Htt-a- COW.NUM. 1 PAIB 1 YEAR 1971 1972 franchise tax REPORT PENAtTY PAID digs. 1` .-15-72 CUMULATIVE INTEREST PREVIOUS total! *S6flffACY y craft* ' code C 15) 20.00 -......... --, -- 20.00 .&yE_DA1|: Alt taxes not pold before July 1st next following date of assessment, are liable to INTEREST PENALTY; of one per centum of amount per month from said July 1st. until data of payment. Thf$ penalty should be included when moiling remittance, Receipt will not be issued. File number shown above should oppeor on your check. PLEaSE RETURN THfS COPY WITH YOUR REMITTANCE f r. i ;.( T l, ,jUt JAU A PENALTY CATE *$ JUNE 1ST - NCT JULY 1ST. V Certificate of Ownership of "ike tnrsoM-Kissm corporation**, merging "OTSON-KISSKBR PROPERTIES, UK.", pursuant to Section 253 of the General Corporation Lew of the State of Delaware, at received and filed in this office the tenth <fy of lteveidrer, A.&. 1912, at 10 o'clock, A H,, (Delaware `The Jirst State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF TEE STATE OF DELAWARE, DO HEREBY CERTIFY TEE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE DYSON-KISSNER CORPORATION", FILED IN THIS OFFICE ON TEE TWELFTH DAY OF NOVEMBER, A.D. 1974, AT 10 O'CLOCK A.M. 0558820 8100 091013314 verify ttii certificate online 5S?l<9o HfCEQ : . HOT 18 W4 / rfWr>0 yf, JlCflliJA', Of ?Atf| CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF THE DVSOH-KISSNEB CORPORATION ` The Dyson-Kiosner Corporation, & corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of the said Corporation, at a meeting duly held, 'adopted the follbw*# ing resolution: RESOLVED, that the Board of Directors of the Corporation hereby proposes-and declares It advisable to amend Article XV of the Corporation's Certifi cate of Incorporation, 30 that, as amended, said Article XV shall read as follows: ARTICLE IV The total number of shares of stock which the Cor poration shall have authority to issue is Twenty-eight Thousand Seven Hundred Fifty (28,750) shares, of which 0 (a) Eighteen Thousand Seven Hundred Fifty (18,750) shares shall be $^.00 Cumulative Participating Preferred Stock of the par value of Twenty-five Dollars ($25<00) per share; and (b) Ten Thousand (10,000) shares shall be Common Stock of the par value of One Dollar ($l-.00) per share. The following is a statement of the designations, preferences, qualifications, privileges, limitations, options, conversion rights and other special rights in respect of the several classes of stock of the Corporation. 1. Dividend Bights. The holders of the shares of the $4".00 Cumulative Participating Preferred Stock <the "Cumulative Preferred Stock") shall he entitled to receive out of the assets of the Corporation which are' by law available for the payment of dividends, as and when declared by the Board of Directors, dividends at the rate of $4.00 per share per annum payable quarterannually on the last days of January, April, July and October In each year, commencing with the quarter-annual dividend payable October 31, 1975* Commencing August 1, 1975, such preferential dividends shall accrue from the first day of the quarter-annual dividend period and shall be cumulative so that if dividends in respect of any quarter-annual dividend period at the rate of $4,00 per share per annua shall not have been paid upon or declared and set apart for the Cumulative Preferred Stock, the deficiency shall be fully paid or set apart before any dividend shall be paid upon or declared or set apart for the Common Stock or any other class of stock or series thereof hereafter created which ranks Junior to the Cumulative Preferred Stock. Preferential. dividends on the Cumulative ' ' Preferred Stock shall be deemed to accrue from day to day. A quarter-annual dividend period shall begin on the day following each dividend payment date set forth above and end on the next succeeding dividend payment date. Accumulations of dividends on any shares of Cumulative Preferred Stock shall not bear interest. " In addition to the fixed preferential dividends set forth in the next preceding subparagraph, the holders of shares of the Cumulative Preferred Stock shall, from . the date of issuance of such shares to but not including August 1, 1975, be entitled to receive, out of the'"assets of the Corporation which are by law available for the payment of dividends, participating dividends in an amount per share equal to 2-2/3S of the amount per share of any dividends on the Common Stock payable with respect to a record date falling within such period, and shall, commencing August 1, 1975, be entitled to receive, out of the assets of the Corporation which are by law available for the payment of dividends, participating dividends for each year ending on July 31 in an aggre gate amount per share equal to the excess over $4,00 . of 2-2/3# of the aggregate amount per share of divi-' 2 dends on the Common Stock payable with respect to a record date falling within such year. In the case of : shares of Cumulative Preferred Stock which cease to ! be outstanding in any year prior to July 31* such ; participating dividends for such period shall be in i an aggregate amount per share equal to the excess over 1 the paid or accrued preferential dividends on the Cumu- \ lative Preferred Stock for such period of 2-2/3? of \ the aggregate amount per share of dividends on the Common Stock payable with respect to a record date falling within such period. Any such participating dividend shall be payable* without further action by the Board of Directors, in the same manner (including without limitation the same record and payment dates) as the dividend on the Common Stock giving rise to such participating dividend, commencing with the first such dividend on the Common Stock. In the ease of shares of Cumulative Preferred Stock which are out standing for only a part of any year ending on July 31* the aggregate participating dividends for such period shall be payable, to the extent not previously 1 payable, by' a dividend payable on the date such shares | cease to be outstanding to holders of record as of such j date. In the event of a reorganisation, recapitalize- tion, stock split, stock dividend, combination of shares, ] merger or consolidation, or the sale, conveyance, lease 1 or other transfer by the Corporation of all or substan- ] tially all of its assets, or any other change in the cor- | porate structure or shares of the Corporation, pursuant I to any of which events.the then outstanding shares of the I Common Stock are split up or combined, or are changed into, 1 become exchangeable at the holder's election for, or en- 1 title the holder thereof to, other shares of stock, the j participating dividends to which the holders of shares of the Cumulative Preferred Stock Shall thereafter be entitled to receive pursuant to this subparagraph Bhall, instead of Ibeing determined in relation to 2-2/32 of the aggregate amount per share of dividends on the Common Stock, be determined in relation to an amount calculated by divid ing by 18,750 the aggregate amount of dividends declared ; on all shares originally represented by 500 shares of the Common Stock. -- No dividend shall be declared, paid or set apart for payment on, and no other distribution- shall be made or ordered in respect of* any share or shares of any ; other class of stock ranking on a parity with the Cumu lative Preferred Stock in respect of dividends or assets , unless there shall have been declared and paid or set apart for payment on all shares then outstanding of the Cumulative Preferred Stock for the same quarter-annual dividend period or part thereof, dividends in propor- ; tion to the respective dividend rates fixed for the Cumulative Preferred Stock and said parity stock. Subject to the limitations set forth above, divi' dends may be paid upon the Common Stock when and as declared by the Board of Directors from assets legally available therefor. '3 2* ReSemotion* Subject to the Habitations here inafter set forth, the Cumulative Preferred Stock shall be redeemable In whole at any time but not in part* to the extent permitted under the law* of the State of Delaware, at the election of the Board of Directors, upon notice given as hereinafter provided, at a redemp tion price equal to but no more than $100 per share plus an amount equal to all dividends accrued theretan and not paid as of the date fixed for redemption whether or not such dividends have been declared, subject, how ever, in the event of dissolution of the Corporation within one year thereafter to a supplementary partici pating, payment, as more fully set forth in paragraph 3 below* Notice of Intention to redeem and of the date and plaee of redemption shall be mailed not less than thirty (30) days prior to the date fixed for redemption (the "redemption date") to each holder of record of shares to be redeemed at his last known post office address shown on the records of the Corporation. On and after the redemption date set forth in said notice, each holder of shares of the Cumulative Preferred Stock ealled for redemption shall present and surrender his certificate(a) for such shares at the place designated In said notice and shall thereupon be entitled to receive * . the redemption price. If notice of redemption shall have been given as aforesaid, then notwithstanding that any or all of the certificates representing any' shares called for redemption shall not have been surrendered (unless default shall be made by the Corporation in payment of the redemption price), dividends on. such shares shall cease to accrue on the redemption date, and all rights of the holders of the Cumulative Preferred Stock with respect to the shares sc ealled for redemption shall forthwith upon the redemption date cease and terminate, except the right of the holders thereof to receive the redemption price without interest upon surrender of the certificate, and such shares shall not thereafter be transferred (except with the consent of the Board of Directors) on the books of the Corporation, and . such shares shall not be deemed to be outstanding for any purpose whatsoever. In the event that any shares of the Cumulative Preferred Stock called for`redemption shall not have been surrendered for redemption within six months succeeding the redemption date, and if the funds for such redemption for such six month period were de posited with any paying agent or otherwise set apart so as to have been continuously available for the redemption of such shares, then such funds mey again be used by the Corporation for Its corporate purposes and the holders of shares of stock so called for re demption or surrender during such six month period shall thereafter have only the right of general'un secured creditors to the redemption price of such shares and shall in no event be entitled to interest. Nothing contained in this section shall limit any legal right of the Corporation to purchaso, to the ex it . tent permitted under the lame of the State of Delaware, any snares of the Cumulative Preferred Stock. . .* Subject to the foregoing provisions, the Board of Directors in its sole discretion shall have power and authority to prescribe the manner and the terms and conditions upon which the Cumulative Preferred Stock shall be redeemed. Shares of Cumulative Preferred Stock redeemed or purchased by the Corporation may not thereafter be re issued by the Corporation. . 3. Distribution of Assets. in the event of vol untary or involuntary liquidation, dissolution or wind ing up of the Corporation the holders of shares of the Cumulative Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to the stockholders thereof the fixed amount of $1QQ per share plus an amount equal to all dividends accrued and unpaid thereon, as of the date of distribution, whether or not such dividends have been declared, before any distribution of such assets shall be to holders of Common Stock or any other class of stock or series thereof hereafter created ranking junior to the Cumulative Preferred Stock with respect to distribution of net assets. If upon such liquidation, dissolution, or winding up of the Corporation, the assets of the Corporation shall be insufficient to permit the payment to all outstanding shareholders of Cumulative Preferred Stock of the full amount to which they are entitled as aforesaid, then the assets of the Corporation available for distribution to the holders of Cumu lative Preferred Stock shall be distributed among such shareholders ir. proportion to the full amounts to which they are respectively entitled. . After payment of the fixed preferential distribu tion set forth in the second preceding subparagraph, shares of the Cumulative Preferred Stock shall par ticipate with the shares of Common Stock in an amount per share equal to the excess over $100 of 2-2/3? of the aggregate amount per share distributed on the Common Stock. Holders of shares of the Cumulatlvtr Preferred Stock called for redemption by the Corpora tion .one year or less prior to the date of dissolution of the Corporation shall be entitled to a like partici pation with respect to their shares of the Cumulative Preferred Stock so called. In the event of a reorganiza tion, recapitalization, stock split, stock dividend, combi tion of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events .the then outstanding shares of the Common Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock, the participating distributions to which the holders of * . shares of the Cumulative Preferred Stock sh^XI thereafter he entitled to receive pursuant to this subparagraph shall be in an amount per share equal to the excess over $100 of an amount calculated by dividing by 3.8,750 the aggregate distributions to be paid on all shares originally repre sented by 500 shares of the Common Stock. ' After payment upon any liquidation, dissolution or winding -up of the Corporation to the holders of shares of Cumulative Preferred Stock as hereinbefore provided, and subject to the foregoing rights of participation by shares of Cumulative Preferred Stock, the remaining assets of the Corporation shall be paid and/or dis tributed to the holders of shares of Common Stock or any other class of stock or series thereof hereafter created which ranks junior to the Cumulative Preferred Stock, subject to any preference to such assets here after determined for any such newly created stock or series thereof, in proportion to the respective number of shares held by them. Neither the merger nor consolidation of the Cor poration into or with any other corporation, nor the merger or consolidation of any other corporation into or with the Corporation, nor a sale, transfer or lease of all or any part of the assets of the Corporation, shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this paragraph 3. . 4. Conversion. Shares of the Cumulative Preferred Stock may not be converted into, or exchanged for, any other class of stock or series thereof of the Corpora tion. . 5* Voting. Each holder of shares of Common Stock shall be entitled to cast one vote in respect of each share of such stock held by him and shall be entitled to cast such vote for any and all purposes. Except as otherwise provided herein and except as provided by law, the holders of shares of the Cumulative Pre ferred Stock shall not be entitled to vote for any purpose whatsoever. -- If the Corporation shall be in default in the pay ment of dividends on the Cumulative Preferred Stock in . an amount equivalent to or exceeding four full quarterly dividends (whether or not consecutive), the number of directors constituting the Board of Directors shall be increased by one and holders of shares of the Cumula tive Preferred Stock, voting separately as one class, shall be entitled at the next annual meeting of stock holders or the next special meeting of stockholders, or at a special meeting of holders of shares of the Cumulative Preferred Stock called as hereinafter pro vided, to fill such newly created directorship, each . share of the Cumulative Preferred Stock entitling the holder thereof to one vote; provided, however, that when all arrears in dividends on the Cumulative Preferred 6 Stock then outstanding shall have been paid and dividends thereon for the current quarterly period shall have been paid or declared and a sum sufficient for the payment thereof`set aside, then U) the right of holders of * shares of the Cumulative Preferred Stock to participate In the election of one director shall cease but subject always to the same provisions for vesting of such voting rights in the ease of any similar future arrearages in dividends^ (11) the tarn of the director then in office elected by holders of shares of the Cumulative Pre ferred Stock shall terminate; and (ill) the number of . directors constituting the Board of Directors shall be reduced by one* Whenever such voting right shall vest* It may be exercised initially either at a special meeting of holders of shares of the Cumulative Preferred Stook or at any annual or special stockholders' meeting, but thereafter it shall be exercised only at annual stockholders' meetings* A special meeting for the exercise of such right shall be called by the Presi dent or any Vice President of the Corporation within ten days after receipt of a written request signed by the holders of reaord of at least 101 of the out standing shares of the Cumulative Preferred Stock, and such meeting shall be held at the earliest prac ticable date thereafter; however, no such special ' meeting shall be held during the 90-day period pre ceding the date fixed for the annual meeting of stock holders . ^ Any director who shall have been elected by hold- ' ers of shares of the Cumulative Preferred Stock shall hold office for a term expiring (subject to the earlier payment of arrears in dividends) at the next annual meeting of stockholders, and during such term may be removed at any time, either for or without cause, only by the affirmative votes of holders of record of a majority of the outstanding shares of the Cumulative Preferred Stock given at a special meeting of such stockholders called for the purpose. Any vacancy created by such removal may also be filled at such-*., meeting. A meeting for the removal of a director elected by holders of the Cumulative Preferred Stock ` and the filling of the vacancy created thereby shall be called by the President or any Vice President of the Corporation within ten days after receipt of a request therefor, signed by holders of not less than 255* of the then outstanding shares of the Cumulative Preferred Stock* Such meeting shall be held at the earliest practicable date thereafter. Any vacancy caused by the death or resignation of a director who shall have been elected by holders of shares of the Cumulative Preferred Stock may be filled only by holders of shares of the Cumulative Preferred Stock at a meeting called for such purpose. Such meet ing of holders of shares of the Cumulative Preferred Stock 7 shall he oalled by the President or any Vice President of the Corporation at the earliest practicable date after any such death or resignation and In any event within ten days after receipt of a written request signed by the holders of record of at least 101 of the outstanding shares of the Cumulative Preferred Stock. Such meeting shall be held at the earliest practicable date thereafter. If any meeting of holders of shares of the Cumu lative Preferred Stock required by this paragraph 5 to be oalled shall not have been called within ten days after personal service of,a written request there for upon the President or any Vice President of the Corporation or within 15 days after mailing the same within the United States of America by registered mail addressed to the President or any Vice President of the Corporation at its principal office, then holders of record of at least 10# c-f the outstanding shares of the Cumulative Preferred Stock may designate in writing one of their number to call such a meeting at the expense of the Corporation and such meeting may be called by such person so designated upon the .notice required for annual meetings of stockholders, Any holder of shares of the Cumulative Preferred Stock so designated shall have access to the stock books of the Corporation for the purpose of causing meetings of stockholders to be called pursuant to these pro visions. ' Any meeting of holders of shares of the Cumulative Preferred Stock to vote for the election or removal of a director shall be held at the place for the holding of the annual meeting of stockholders of the Corpora . tion or, in the case of a special meeting, at such place within or without the State of Delaware reason ably convenient to the holders of shares of the Cumu lative Preferred Stock as may be specified in the notice thereof. At such meeting, the presence in person or by proxy of holders of a majority of the - outstanding shares of the Cumulative Preferred Stock shall be required to constitute a quorum^ in the ab sence of a quorum, a majority of the holders present in person or by proxy shall have power to adjourn the meeting from time to time without notice, other than announcement at the meeting, until a quorum shall be present. A director shall he chosen at any such meet ing by a plurality of the votes cast at the election, and the question of removal of a director shall be determined by a majority of the votes cast on such question. .. SECOND: That the Amendment has been consented to and authorised by the holders of at least a majority of the Issued and outstanding atooh of the Corporation en titled to vote thereon by a written consent given In accord ance with the provisions of Section 228 of Chapter 1 of Title 8 of the Delaware Code and filed with the Corporation. THIRD: That the Amendment was duly adopted in accordance with the applicable provisions of Sections 228 and 2ft2 of Chapter 1 of Title 8 of the Delaware Code. IN WITNESS WHEREOF, The Dyson-Klsaner Corporation has caused this Certificate of Amendment to be signed by Charles H. Dyson, its Chairman of the Board of Directors, and attested by Kenneth R, LaVoy, Jr.,, its Secretary, this 11th day of November 197ft. THE DVSON-KISSNER CORPORATION ATTEST: Chairman of the Bohrd of Directors ! 9 STATE OP NEW YORK ) COUNTY OP NEW YORK ) '' BE IT REMEMBERED, that on thisllth day of November 197*! personally came before me, a Notary Public in and for the County and State aforesaid, Charles H. Dyson, Chairman of the Board of Directors of The DysonKleaner Corporation, a corporation of the State of Delaware, and he duly executed the foregoing Certificate of Amend ment before me and acknowledged the said Certificate to be his act and dee.d and the act and deed of the said Cor poration; that the facta stated therein are true; and that the seal affixed to the said Certificate ia the cor ' porate seal of the said Corporation, IN WITNESS WHEREOF, I have hereunto set my hand and seal of office this 11th day of Movemher, 197**. 10 `Delaware PAGE 1 fIhe first State I, JEFFREY W. BpfjLLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFYti ATE OF AMENDMENT OF "THE DYS0N-K1SSNER CORPORATION", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF MARCH, A.D. 1976, A ' 10 O'CLOCK A.M. 0558820 8100 091013314 You may verity this certificate onliJ* At dslawavv*. mv^uthnir chtnl 1 DATE: 11-12-09 0/# (>. ^ V' CERTIFICATE OF AMENDMENT OF THE OTSON-KISSNER CORPORATION filed i MAR 17 1976 ,c<*i n, (^yoj7 rmciitui nm CERTIFICATE OP AMENDMENT QP CERTIFICATE OF IKCORPORATION OP TOE BYSQK-KISSNEH CORPORATION The Dyson-Xissner Corporation, a corporation organised end existing under and by virtue of the General Corporation law of the State of Delaware, DOES HEREBY CERTIFY: FIRST; That the Board of Directors of the said Corporation, by written consent, adopted the following reso lution: RESOLVED, that the Board of Directors of the Corporation hereby proposes and declares it advisable to amend Article V of the Corporation*# Certifi cate of Incorporation by adding to said Article V a Paragraph 7 which shall read as follows; 7. The Corporation wi2l not issue, re issue, sell or otherwise transfer any common stock or other voting stock of the Corpora-tion, unless such issuance, reissuance, sale or other transfer shall first have been approved by the affirmative vote of the holders of a majority of such stock of the Corporation then Issued and outstanding. SECOND: That the Amendment has been consented to and authorised by the holders of at least a majority of the issued and outstanding stock of the Corporation entitled to vote thereon by a written consent given In accosdance with che provisions of Section 229 of Chapter 1 of Title 8 of the Delaware Code and filed with the Corporation. THIRD: That the Amendment was duly adopted in accordance with the applicable provisions of Sections 141(f), 228 and 242 of Chapter 1 of Title 8 of the Delaware Code. IN WITNESS WHEREOF, The Dyson-Klssner Corporation has caused this Certificate of Amendment to be signed by Frederick W. Beck, Its Vice President and attested by Kenneth R. .LaVoyr Jr., its Secretary, this Ofday of wlX- l976- c-\ CORPORATE SEAL THE DYSON-KISSNER CORPORATION By. Vice President;.. > T:. >&mh - STATE OP HEW YORK COUNTY OP NEW YORK ) t ss.i ) 9E IT REMEMBERED, that on this day or $)*v>eAs , 1976, personally came before me, a Notary Public in and for the County and State aforesaid, Frederick W, Beck, a Vice President of The Dyaon-Klssner Corporation, a corporation of the Stats of Delaware, and he duly executed the foregoing Certificate of Amendment before me and acknowledged the said Certificate to be bis act and deed and the act and deed of the said Corporation; that the facts stated therein are true and that the seal affixed to the said Certificate le the corporate seal of the said Corporation. IN WITNESS WHEREOF, I have hereunto set my hand >/^an^`^.al. of office this day of , 1976. fig;;',;al A ^ *" TWw*" < `Delaware PAGE 1 cIhe first State I, JEFFREY Vi. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE DYSON-KISSNER CORPORATION", CHANGING ITS NAME FROM "THE DYSON-KISSNER CORPORATION" TO "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE TENTH DAY OF SEPTEMBER, A.D. 1979, AT 10 O'CLOCK A.M. 0558820 8100 091013314 you may tUf certificate online At cotd. dAlawijr*. onv/a>ithvii>. FILED itm t CERTIFICATE Qg AMENDMENT OP CERTIFICATE OF INCORPORATION OP THE DYSON--KIgSHKR CORPOIftTIOB The Dyson-Kissner Corporation, a corporation or ganized and existing under and by virtue of the General Cor poration Law of the State of Delaware, DOES HEREBY CERTIFY* FIRST: that the Board of Directora of the said Corporation, at a meeting duly bald, adopted the following resolution: RESOLVED, that the Board of Directors of the Corpora tion hereby proposes and declares it advis able to amend Article I of the Corporation's Certificate of Incorporation, so that, as amended, said Article I shall read as fol lows: , ARTICLE I The name of the Corporation is THE DYSCHMKISSNER-HORAN CORPORATION SECOND: That the Amendment has been consented to and authorized by the holders of at least a majority of the , issued and outstanding stock of the Corporation entitled to vote thereon by a written consent given in accordance with the provisions of Section 228 of Chapter i of Title 8 of the Delaware Code and filed with the Corporation. THIRD: That the Amendment was duly adopted in ac cordance with the provisions of Sections 228 and .242 of * t k Chapter 1 of Title 8 of the Delaware Code. IN WITNESS WHEREOF, The Dyson-Xisetter Corporation has caused this Certificate of Amendment to be signed by John A. Horan, its President and attested by Kenneth 8, I#aVoy, Jr., its Secretary, this day of September, 197$. T` 2 SThTE CP NEW YORK * 1 as. COUNTY OF NEW YORK ) BE IT KI9**>*'VBR0, that on this v day of Septem ber, 1379, personally came before me, a Notary Public in and for the County and State aforesaid, John A. Moran, the President of The Dyson-Xisaner Corporation, a corporation of the state of Delaware, and he duly executed the foregoing Certificate of Amendment before me and acknowledged the said Certificate to be his act and deed and the act and deed of the said Corporation; that the facts stated therein are true; and that the seal affixed to the said Certificate is the corporate seal of the said Corporation, IN WITNESS WHEREOF, X have hereunto set ray hand and seal of office this 6 ~ day of September, 1979. {Notarial Seal} /U t40\ #......\ j/ ss>'r-y V' \ :V o **\* %PUov ` Notary Public urtHrj atwsewma<jfw ra.t QnKM 8* 0<-* CmmMm Mfct #*l* Wk W `Ihe first State PAGE 1 1, JEFFREY W. BOLLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF NOVEMBER, A.D. 1980, AT 10 O'CLOCK A.M. SSR-& FILED ' not to m /Q JL'M. f , t ii RESTATED CERTIFICATR Of INCORPORATION OF THE DYSON-KISSKER- HORAN CORPORATION TBS mrSON-KlSSNER-AORAN CORPORATION, corporation organised and existing under and by virtue of the General Corporation Law of the State of Delaware, DOBS HEREBY CERTIFY; FIRSTi That (U the name of the corporation is THE DYSON-KISSSER-HORAN CORPORATION, (it) the name wider which the corporation was originally incorporated was "the Dyson Company, Inc.*, and (iii) the date of filing its original Certificate of Incorporation with the Secretary of State was October 28, 1960, SECOND: That this Restated Certificate of Incorpo ration was duly adopted in accordance with the provisions of Section 245 of Chapter I of Title 8 of the Delaware Code and by written consent of the directors in accordance with the provisions of Section 141{f} of Chapter 1 of Title 8 of the Delaware Code. THIRD: That this Restated Certificate of Incorpo ration has been consented to and authorised by the holders of all the issued and outstanding stock of the corporation entitled to vote thereon by a written consent given in accordance with the provision* of Sections 228* 242 and 245 of Chapter I of Title 8 of the Delaware Code and filed with the Corporation. fourth* That the capital of said corporation will not he reduced under or toy reason of any aaendnent in this Restated Certificate of Incorporation. FIFTH* that the text of the Certificate of Incorporation as amended or aappleaented heretofore is further amended hereby to read as herein set forth In folit ARTICLE I The name of the Corporation is THE DYSON-KI8SNER-M0RAN CORPORATION ARTICLE II The registered office of the Corporation in the State of Delaware is located at No. 100 Vast 10th Street, in the city of Wilmington, County of New Castle. The name and address of the Corporation' 3 registered agent is The Corpo ration Trust Company, No. 100 West 10th Street, Wilmington, Delaware. ARTICLE III The purpose of the Corporation is to engage in any lawful act or activity for which corporations may he or ganized under the General Corporation Law of Delaware, ARTICLE IV The total number of shares of stock which the Corporation shall have authority to issue is Tv Hundred Eighteen Thousand Seven Hundred Fifty (219*750) shares* of which (a) Eighteen Thousand Seven Hundred Fifty (18*750) shares shall be $4.00 Cumulative Participating Preferred Stock of the par value of Twenty-five Dollars ($25.00) per share; (b) Ten Thousand (10*000) shares shall be Voting Common Stock of the par value of One Dollar ($1.00) per share (the "Voting Common Stock">s and (cl One Hundred Ninety Thousand (190*000) shares shall be Nonvoting Common Stock of the par value of One Dollar ($1.00) per share (the "Nonvoting Common Stock"). The Voting Common Stock and the Nonvoting Common Stock are hereinafter collectively called the "Common Stock". The following is a statement of the designations, preferences* qualifications, privileges* limitations* options conversion rights and other special rights in respect of the severs! classes of stock of the Corporation. 1. Dividend Rights. The holders of the shares of the $4.09 Cumulative Participating Preferred Stock (the "Cumulative Preferred Stock*) shall be entitled to receive out of the assets of the Corporation which are by law available for the payment of dividends* as and when declared by the Board of Directors* dividends at the rate of $4.08 per share per annum payable guartet-annually on the last days of January* April* July and October in each year* commencing with the quarter- annual dividend payable October 31, 1975. Commencing August lr 1975, such preferential dividends shall accrue from the first day of the quarter-annual divi dend period end shell be cumulative so that if divi dends in respect of any quarter-annual dividend period at tbe rate of ?4*O0 per share per annum shall not have been paid upon or declared end set apart for the Cumulative Preferred Stock, the deficiency shall be fully paid or set apart before any dividend shall be paid upon or declared or set apart for the Common Stock or any other class of stock or series thereof hereafter created which ranks Junior to the Cumulative Preferred Stock. Preferential dividends on the Cumulative Preferred Stock shall be deemed to accrue from day to day. A quarter-annual dividend period shall begin on the day following each dividend payment date set forth above and end on the next succeeding dividend payment date. Accumulations of dividends on any shares of Cumulative Preferred Stock shall not beat interest. In addition to the fixed preferential dividends set forth in the next preceding subparagraphr the holders of shares of tbe Cumulative Preferred Stock shall, from tbe date of issuance of such shares to but not including August 1, 1975, be entitled to re ceive, out of the assets of the Corporation which are by law available for the payment of dividends, partic ipating dividends in an amount per share equal to the amount calculated by dividing by 18,750 the aggre gate amount of dividends declared on 10,000 shares of Common Stock payable with respect to a record date falling within such period, and shsll, commencing August 1, 1975, be entitled to receive, out of the assets of the Corporation which are by law available for th? payment of dividends, participating dividends for each year ending on July 31 in an aggregate amount pec share equal to the excess over $4.00 of the amount * calculated by dividing by 18,750 the aggregate amount of dividends declared on 10,000 shares of Common Stock payable with respect to a record date falling within such year. In the esse of shares of Cumulative Pre ferred Stock which cease to be outstanding in any year prior to July 31, such participating dividends for such period shall be in an aggregate amount pet share equal to the excess over the paid or accrued preferential dividend shall be payable, without further action by the Board of Directors, in the save Banner (including without limitation the same record and payment dates) . as the dividend on the Common Stock giving rise to such participating dividend, commencing with the first such dividend on the Common stock. In the case of shares of Cumulative Preferred Stock which are outstanding for only a part of any year ending on July 31, the aggregate participating dividends for such period shell be payable, to the extent not previously payable, by a dividend payable on the date such shares cease to be outstanding to holders of record as of such date. Zn the event of a reorganisation, recapitalization, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Common Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the bolder thereof to, other shares of stock, the participating dividends to which the holders of shares of the Cumulative Preferred Stock.shall thereafter be entitled to receive pursuant to this subparagraph shall, instead of being determined in relation to the amount calculated by dividing by 18,750 the aggregate amount of dividends declared on 10,000 shares of Common stock, be determined in relation to an amount calculated by dividing by 18,750 the aggregate amount of dividends declared on all shares originally represented by 10,000 shares of the Common Stock. No dividend shall be declared, paid or set apart for payment on, and no other distribution shall be made or ordered in respect of, any share or shares of any other class of stock ranking on a parity with the Cumulative Preferred Stock in respect of dividends or assets unless there shall have been declared and paid or set apart for payment on all shares then out standing of the Cumulative Preferred Stock for the same quarter-annual dividend period or part thereof, dividends in proportion to the respective dividend rates fixed for the Cumulative Preferred Stock and said parity stock. Subject to the limitations set forth above, dividends may be paid upon the Common Stock when and as declared by the Board of Directors from assets legally available therefor. The Voting Common Stock and the Honvoting Common Stock shall participate equally with respect to the payment of dividends. 5 2. Redemption. Subject to the limitations hereinafter set forth, the Cumulative Preferred Stock shall be redeemable, in whole at any time but not in part, to the extent permitted under the lews of the State of Delaware, at the election of the Board of Directors, upon notice siren as hereinafter provided, at a redemption price equal to but no more than $160 per share plus an amount equal to all divi dend* accrued thereon end not paid as of the date fixed for redemption whether or not such dividends have been declared, subject, however, in the event of dissolution of the Corporation within one year thereafter to a supplementary participating payment, os more fully set forth in paragraph 3 below. Motice of intention to redeem and of the date and place of redemption shall be mailed not less than thirty (20} days prior to the date fixed for redemption (the "redemption date*} to each holder of record of shares to be redeemed at his Isst known post office address shown on the records of the Corporation. On and after the redemption date set forth in said notice, each holder of shares of the Cumulative Preferred Stock called for redemption shall present end surrender his certificate(s) for such shares at the place designated in said notice and shall thereupon he entitled to receive the redemption price, if notice of redemption shall have been given ae aforesaid, then notwithstanding that any or all of the certificates representing any shares called for redemption shall not have been surrendered (unless default shall be made by the Corporation in payment of the redemption price), dividends on such shares shall cease to accrue on the redemption date, and all rights of the holders of the Cumulative Preferred Stock with respect to the shares so called for redemption shall forthwith upon the redemp tion date cease and terminate, except the right of the holders thereof to receive the redemption price without interest upon surrender of the certificate, and such shares shall not thereafter be transferred (except with the consent of the Board of Directors) on the books of ' the Corporation, and such shares shall not be deemed to be outstanding for any purpose whatsoever. In the event that any shares of the Cumulative Preferred Stock called for redemption shall not have been surrendered for redemption within six months succeeding the redemption date, and if the funds for such redemption for such six month period were deposited with any paying agent or otherwise set apart so as to have been continuously available for the redemption of such shares, then such funds may again be used by the Corporation foi its corporate purposes and the a holders of shares of stock so called for redemption or surrender during such six month period shall thereafter have only the right of general unsecured creditors to the redemption price of such shares and shall in no event be entitled to interest* Nothing contained in this section shall limit any legal right of the Corporation to purchase, to the ex tent permitted under the lavs of the State of Delaware, any shares of the Cumulative Preferred Stock, Subject to the foregoing provisions, the Board of Directors in its sole discretion shall have power and authority to prescribe the manner and the terms and conditions upon which the Cumulative Preferred Stock shall be redeemed. Shares of Cumulative Preferred Stock redeemed or purchased by the Corporation may not thereafter be reissued by the Corporation, 3. Distribution of Assets. In the event of voluntary or involuntary liquidation. dissolution or winding up of the Corporation the holders of shares of the Cumulative Preferred Stock shall be entitled to receive out of the assets of the Corporation avail able for distribution to the stockholders thereof the fixed amount of *100 per share plus an amount equal to all dividends accrued and unpaid thereon, as of the date of distribution, whether or not such dividends have been declared, before any distribution of such assets shall be made to holders of Common Stock or any other class of stock or series thereof hereafter created ranking junior to the Cumulative Preferred Stock with respect to distribution of net assets. If upon such liquidation, dissolution, or wind ing up of the Corporation, the assets of the Corpora tion shall be insufficient to permit the payment to all outstanding shareholders of Cumulative Preferred Stock of the full amount to which they are entitled as aforesaid, then the assets of the Corporation available fct distribution to the holders of Cumula tive Preferred Stock shall be distributed among such shareholders in proportion to the full amounts to which they are respectively entitled. After payment of the fixed preferential distri bution set forth in the second preceding subparagraph, shares of the Cumulative Preferred Stock shall par ticipate with the shares of Common Stock in an amount ? pec share equal to the excess over $100 of the aroint calculated by dividing by 18*750 the aggregate aroint. distributed on 10*000 shares of Comon Stock. Solders of shares of the Cumulative Preferred Stock called for redemption by the Corporation one year or lees prior to the date of dissolution of the Corporation shall be entitled to a like participation with respect to their shares of the Cumulative Preferred Stock so celled* In the event of a reorganization, recapitali zation* stock split* stock dividend* combination of shares* merger or consolidation* or the sale* convey ance, lease or other transfer by the Corporation of all or substantially all of its assets* or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Common stock ate split up or combined, or are changed into* become exchangeable at the holder's election for* or entitle the holder thereof to* other shares of stock* the participating distributions to which the holders of shares of the cumulative Preferred Stock shall thereafter be entitled to receive pursuant to this subparagraph shall be in an amount per share equal to the excess over $100 of an amount calculated by dividing by 18*750 the aggregate distributions to be paid on all shares originally represented by 10*000 shares of the Common Stock. After payment upon any liquidation, dissolution or winding up of the Corporation to the holders of shares of Cumulative Preferred Stock as hereinabove provided* and subject to the foregoing rights of par ticipation by shares of Cumulative Preferred Stock* the remaining assets of the Corporation shall be paid and/or distributed to the holders of shares of Common Stock or any other cless of stock or series thereof hereafter created which ranks junior to the Cumulative Preferred Stock, subject to any preference to such assets hereafter determined for any such newly created stock or secies thereof* in proportion to the respec- -- tive number of shares held by them. The Voting Common Stock and the Honvoting Common Stock shall participate equally with respect to any payment upon liquidation* dissolution or winding up of the Corporation. Neither the merger nor consolidation of the Cor poration into or with any other corporation* nor the merger or consolidation of any other corporation into or with the corporation, nor a sale, transfer or lease of all or any part of the assets of the Cor poration, shall be deemed to be a liquidation* dissolu tion or winding up of the Corporation within the meaning of this paragraph 3. 8 4. Conversion. Shares ol the emulative Pre ferred Stock nay not he converted into, or exchanged, for, any other class of atock or series thereof of the Corporation. 5. Voting. Sach holder of shares of Voting Conmon Stock shall be entitled to cast one vote in respect of each share of euch stock held by him end shall be entitled to cast such vote for any and all purposes. Except as otherwise provided herein and except as provided by lew, the holders of shares of the Cumulative Preferred Stock and Nonvoting Common Stock shall not be entitled to vote for any purpose whatsoever. If the Corporation shall be in default in the payment of dividends on the Cumulative Preferred Stock in an amount equivalent to or exceeding four full quarterly dividends (whether or not consecutive), the number of directors constituting the Board of Directors shall be increased by one and holders of shares of the Cumulative Preferred Stock, voting separately as one class, shall be entitled at the next annual meeting of stockholders or the next special meeting of stockholders, or at a special meeting of holders of shares of the Cumulative Preferred Stock called as hereinafter provided, to fill such newly created directorship, each share of the Cumulative Preferred stock entitling the holder thereof to one vote? provided, however, that when all arrears in dividends on the Cumulative Preferred Stock then out standing shall have been paid and dividends thereon for the current quarterly period shall have been paid or declared and a sum sufficient for the payment thereof set aside, then (i) the sight of holders of shares of the Cumulative Preferred Stock to participate in the election of one director shall cease but subject al ways to the same provisions for vesting of such voting rights in the case of any similar future arrearages in dividends; (ii) the term of the director then in office elected by holders of shares of the Cumulative Preferred Stock shall terminate) and (iii) the number of directors constituting the Board of Directors shall be reluced by one. Whenever such voting right shall vest, it may be exercised initially either at a special meeting of holders of shares of the Cumulative Preferred Stock or at any annual or special stockholders* meeting, but thereafter it shall be exercised only at annual stockholders' meetings. A special meeting for the exercise oi such right shall be called by the President 9 or any Vice President of the Corporation within ten days after receipt of a written request signed by the holders of record of at least 10% of the outstanding shares of the Cumulative Preferred Stock, and such meeting shall be held at the earliest practicable date thereafter} however, no such special meeting shall be held during the PO-eJay period preceding the date fixed for the ennual meeting of stockholders. Any director who shall have been elected by holders of shares of the Cumulative Preferred Stock shall hold office for a term expiring (subject to the earlier payment of arrears in dividends) at the next annual meeting of stockholders, and during such term may be removed at any time, either for or without cause, only by the affirmative votes of holders of record of a majority of the outstanding shares of the Cumulative Preferred Stock given at a special meeting of such stockholders called for the purpose. Any vacancy created by such removal may also be filled at such meeting. A meeting for the removal of a director elected by holders of the Cumulative Preferred Stock and the filling of the vacancy created thereby shall be called by the President or any Vice President of the Corporation within ten days after receipt of a request therefor, signed by holders of not less than 25% of the then outstanding shares of the Cumulative Preferred Stock. Such meeting shall be held at the earliest practicable date thereafter. Any vacancy caused by the death or resignation of a director who shall have been elected by holders of shares of the Cumulative Preferred Stock may be filled only by holders of shares of the Cumulative Preferred Stock at a meeting called for such purpose. Such meeting of holders of shares of the Cumulative Preferred Stock shall be called by the President or any vice President of the Corporation at the earliest practicable date after any such death or resignation and in any event within ten days after receipt of a written request signed by the holders of record of at least 101 of the outstanding shares of the Cumula tive Preferred Stock* Such meeting shall be held at the earliest practicable dste thereafter. _ If any meeting of holders of shares of the Cumu lative Preferred Stock required by this paragraph 5 to be called shall not have been called with ten days after personal service of a written request therefor upon the President or any Vice President of the Corporation or within 15 days after mailing 10 the same within the United States o America by regis tered nail addressed to the President or any Vice President of the Corporation at its principal office, then holder e of record of at least 10% of the outstand ing shares of the Cumulative Preferred Stock nay desig nate in writing one of their number to call such a meeting at the expense of the Corporation and such meeting may be called by such person so designated upon the notice required for annual meetings of stock holders. Any bolder of shares of the Cumulative Pre ferred Stock so designated shall have access to the stock hooka of the Corporation for the purpose of causing meetings of stockholders to he called pur suant to these provisions. Any meeting of holders of shares of the Cumulative Preferred Stock to vote for the election or removal of a director shall he held at the place for the holding of the annual meeting of stockholders of the Corporation or, in the case of a special meeting, at such place within or without the State of Delaware reasonably convenient to the holders of shares of the Cumulative Preferred Stock as may be specified in the notice thereof. At such meeting, the presence in person or by proxy of holders of a majority of the outstanding shares of the Cumulative Preferred Stock shall be required to constitute a quorum; in the absence of a quorum, a majority of the holders present in person or by proxy shall have power to adjourn the meeting from time to time without notice, other then announcement at the meeting, until a quorum shall be present. A director shall be chosen at any such meeting by a plurality of the votes cast at the election, and the question of removal of a director shall be determined by a majority of the votes cast on such question. ARTICLE V 1. Elections of directors need not be by ballot unless the By-laws of the Corporation shall so provide. 2. Any director may be removed from office either with or without cause at any time by the affirmative vote of stockholders of record holding a majority of the outstanding shares of the stock of the Corporation entitled to vote, 11 'T.SWi given at a meeting of tit* stockholders called for that purpose* 3. The amount of th* authorised stock of the Corporation Of any class or classes may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote. 4. In furtherance and not in limitation of the powers conferred upon the Board of Directors by statute, the Board of Directors is expressly authorised to make, adopt, alter, amend and repeal from time to time By-laws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to alter and repeal By-laws made by the Board of Directors. 5. Except as otherwise provided by statute, any action which might have been taken by a vote of the stock holders at a meeting thereof say be taken with the written consent of such of the holders of stock who would have been entitled to vote upon the action if a meeting were held as have not less than the minimum percentage of the total vote required by statute for the proposed corporate action; provided that prompt notice shall be given to all stock holders of the taking of such corporate action without a " meeting if less than unanimous written consent is obtained. 6. No holder of any stock of the Corporation of any class now or hereafter authorised shall have any 12 eight (other than such right# if any, as the Board of Directors in its discretion nay determine) to subscribe for, purchase or otherwise acquire from the Corporation any share of stock of the Corporation of any class now or hereafter authorised, or any securities convertible into or exchange able for any such shares, or any warrants or other instru ments evidencing rights or options to subscribe for, pur chase or otherwise acquire any such shares, whether such shares, securities, warrants or other instruments be un issued or issued and thereafter acquired by the Corporation* 7. The Corporation will not issue, reissue, sell or otherwise transfer any common stock or other voting stock of the Corporation, unless such issuance, reissuance, sale or other transfer shall first have been approved by the affirmative vote of the holders of a majority of such stock of the Corporation then issued and outstanding. ARTICLE VI The Corporation reserves the right to amend, alter, change or repeal any provision contained in this 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. 13 IN tfzmsss HBBREOPt The Dyffon-Kissnar-Noran Cocpocation has caused this Restated Certificate of Incor poration to ba signed by Charles B. Dyson, its Cbairaan of the Board of Directors, and attested by Wynne ' ftblgren, its Secretary, this 3o*' day of (owf&hjtJ * I960. THE DYSON-KISBNEB-MORAN CORPORATION 14 STATE OF NEW FORK ) * SS.: COUNTY OF NEW YORK ) SB IT REMEMBERED, that on 1980, personally came before me, s Rotary Mobile in and for the County and State aforesaid, Charles s. Dyson, Chairman of the Board of Directors of The Dyson-Kisaner-Moran Corporation, a corporation of the State of Delaware, and he duly executed the foregoing Restated Certificate of Incorporation before ate and acknowledged the said Restated Certificate of Incorpora tion to be his act and deed and the act and deed of the said Corporation! that the facts stated therein are true; and that the seal affixed to the said Restated Certificate of Incorp oration is the corporate seal of the said Corporation. IS WITNESS WHEREOF, 1 have hereunto set ay hand 'i ? , : (Delaware PAGE 1 The first State I, JEFFREY W. BOLLOCK, SECRETARY OF STATE OF TEE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "THE DYS0N-K1SSNER-M0RAN CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF FEBRUARY, A.D. 1986, AT 10 O'CLOCK A.M. DATE: 11-12-09 THE CORPOR ATION TRUST COMPANY DATE Rtmun-TCP February 2?. 19U Pursuant to counsel's instructions, submit***! tor ttttng by: Thg Corporation Trust Company WrOff% fHERS NO. 00010 MAME OF CQIAPAKV TKfc OTSQKX.iSSt.ft-WOE*H COftfOBATlQW TYPEOF DOCUMENT nrse5RlR?R*TT0R OTHER. OTHER. i/ v' Filing Fee Tiac % U&Q-0- RecefctagarK* Indexing $________ NO____ 1_ Certified Copies $........ NO. R*GS 0? prepared by the Division of Corp.) S ____________________ $ ............................. t TOTAL % At* s todiv m .* . . U ifOtfOW 27 * ESSTATED CERTIFICATE M lr.CaXPQXXTimi OF THE DYSOW-KISSHBR-MORAH CORPORATION THE DYSON-XISSNEft-MORAH CORPORATION, a corporation organized and axisting under and by virtue of the General Corporation Lae of the State of Delaware, DOES HEREBY CER TIFY: FIRST: That CD the name of the corporation is the DYSON-KISSWER-MORAN CORPORATION, (ill the naae under which the corporation was originally incorporated was "The Dyson Company, Inc.*, and UiU the date of filing its orig inal Certificate of Incorporation with the Secretary of State was October 28, 1860. SECOND: That this Restated Certificate of 1 ficorporat ion has been consented to and authorised by the the provisions of Sections 228 , 242 and 245 of Chapter l of Title 8 of the Delaware Code; THIRD: That this Restated Certificate of Incorporation has been consented to and authorized by the holders of at least a majority of the issued and outstanding stock of the Corporation entitled to vote thereon by a writ ten consent given in accordance with the provisions of Sec tions 228 , 242 and 245 of Chapter 1 of Title 8 of the Dela ware Code and filed with the Corporation. FOURTH; That the text of the Certificate of In corporation as amended or supplemented heretofore is further amended hereby to read as herein set forth in full: ARTICLE I The name of the Corporation is THE &YSON-KIS5NBR-MQRAN CORPORATION ARTICLE II The registered office of the Corporation in the State of Delaware is located at 1209 Orange Street* in the City of Wilmington, County of New Castle. The name and address of the Corporation's registered agent is The Cor poration Trust Company, no. 1209 Orange Street, Wilmington, Delaware. ARTICLE nr The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be orga nised under the General Corporation Law of Delaware. ARTICLE IV The total number of shares of stock which the Corporation shall have authority to issue is Two Million Two Hundred Eighteen Thousand Seven Hundred Fifty {2,218,750} shares, of which (a) Eighteen Thousand Seven Hundred Fifty <18,750) shares shall be H.OO Cumulative Participating Preferred Stock of the par value of Twenty-five Dollars ($25.00) per share (the "Cumulative Preferred Stock"); (b) One Hundred Thousand (100,0001 shares shall be Voting Common Stock of the par value of Ten Cents ($0.10) per share (the "Voting Common Stock"); tc) One Million Mine Hundred Thousand (1,900,000) shares shall be Honvoting Common Stock of the par value of Ten Cents ($0.10) per share (the Monvoting Common Stock"); (d) Pive Thousand (5,000) shares shall be Voting Class B Common Stack of the par value of Ten Cents ($0.10) per share (the "Voting Class B Stock"); and (e) One Hundred Ninety Pive Thousand (195,000) shares shall be Nonvoting Class B Common Stock of the par value of Ten cents ($0.10) per share (the "Nonvot ing Class B Stock*). The Voting Common Stock and tha Nonvoting Common Stock are hereinafter sometimes referred to together as the "Common Stock" and the Voting Class B Stock and the Nonvoting Class B Stock are hereinafter sometimes referred to together as the "Class B Stock." The following is a statement of the designations, preferences, qualifications, privileges, limitations, op tions, conversion rights and other special rights in respect of the several classes of stock of the corporation. 13 Part A Common Stock and Class B Stock The Common Stock and class 8 Stock shall have the respective designations, rights, preferences# privileges and restrictions as follows: 1. Dividend Rights. Dividends nay be paid in cash or otherwise upon the Common Stock and Class B Stock in the relationship and upon the terms provided for belov with respect to each such class: (a) Dividends on Co--on stock. The Voting Common Stock and the Nonvotjng common stock shell participate equally with respect to the payment of dividends. Div idends may be paid upon the Common Stock, vhen and as declared by the Board of Directors, out of the assets which are by law available for the payment of divi dends, Subject to the express terms of any outstanding shares of Cumulative preferred stock and the following provisions with respect to the payment of participating dividends to the holders of Class B Stock, the declara tion and payment of dividends on the Common Stock and the amount thereof shall at all times be solely in the discretion of the Board of Directors of the Corpora tion. (b> Dividends on Class B Stock, The Voting Class B Stock and the ^unvoting Class 8 Stock shall partici pate equally with respect to the payment of dividends. The holders of shares of Class B Stock shall be enti tled to receive, out of the assets of the Corporation which are by lav available lor the payment of divi dends, participating dividends for each year ending on January 31, beginning with the year ending January 31, 1887, in an aggregate amount per share equal to the excess over $1.70 per share of the aggregate amount of dividends declared per share on the Common Stock with respect to a record date falling within such year. Any such participating dividend shall be payable, without further action by the Board of Directors, in the same manner {including without limitation, the same record and payment dates) as the dividend on the Common Stock giving rise to such participating dividend on the Class B Stock. Except as aforesaid, no dividends shall be payable upon the Class B Stock. . In the event of a reorganization, recapitaliza tion, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, convey ance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corpora tion, pursuant to any of which events the then out standing shares of the Common Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder ^ thereof to, other shares of stock, the participating dividends to which the holders of shares of the Class B Stock shall thereafter be entitled to receive pursuant to the preceding subparagraph shall be determined in relation to the aggregate amount of dividends per share declared on all shares originally represented by the shares of the Common Stock issued and outstanding imme diately prior to such event. 2. Distribution of Assets. In the event of vol untary or involuntary liquidation, dissolution or wind ing up of the Corporation, after there shall have been paid or set aside for payment to the holders of Cumu lative Preferred Stock of the full preferential amounts to which they are entitled, the holders of shares of the Common Stock shall be entitled to receive out of the assets of the Corporation available for distribu tion to the stockholders thereof the fixed amount of $117.50 per share before any distribution of such as sets shall be made to holders of Class B Stock or any other class of stock or series thereof hereafter cre ated ranking junior to the Common Stock with respect to distribution of net assets. If upon such liquidation, dissolution, or winding up of the Corporation, the assets of the Corporation shall be insufficient to permit the payment to all outstanding shareholders of Common Stock of the full amount to which they are entitled as aforesaid, then the assets of the Corporation available for distribu tion to the holders of Common Stock shall be distrib uted among such shareholders in proportion to the full amount* to which they are respectively entitled (but only after adequate provision shall have been made for the payment of the full preferential amounts to holders of the Cumulative Preferred Stock as aforesaid). The holders of Voting Common Stock and Nonvoting Common Stock shall participate equally with respect to the payment of any such preferential amount upon liquida tion, dissolution or winding up of the Corporation. In the event of a reorganization, recapitaliza tion, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, convey ance, lease or other transfer by the Corporation of all or substantially ail of its assets, or any other change in the corporate structure or shares of the Corpora tion, pursuant to any of which events the then out standing shares of the Common Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock, the preferential distributions to which the holders of shares of the Common Stock shall thereafter be entitled to receive pursuant to this subparagraph shall be adjusted accord ingly. After payment upon any liquidation, dissolution or winding up of the Corporation to the holders of shares of Cumulative Preferred Stock and Common Stock as here inabove provided, and subject to the rights of partici pation by shares of Cumulative Preferred Stock herein after provided, the remaining assets of the Corporation shall be paid and/or distributed to the holders of shares of Common Stock and Class B Stock in proportion to the respective number of shares held by them. Neither the merger nor consolidation of the Cor poration into or with any other corporation, nor the merger or consolidation of any other corporation into or with the Corporation, nor a sale, transfer or lease of all or any part of the assets of the Corporation, shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning -f this paragraph 2. 3. Votino Riohts. Except as otherwise provided herein and except as otherwise provided by law, the holders of shares of Nonvoting Common Stock and Nonvot ing Class B Stock shall not be entitled to vote for any purpose whatsoever. Each holder of shares of Voting Common stock and Voting Class B Stock shall be entitled to cast one vote in.respect of each share of such stock held by him and shall be entitled to cast such vote for any and all purposes. Except as otherwise provided by law, the holders of Voting Common Stock and Voting Class B Stock shall vote together as a single class an all matters. Part B Cumulative Preferred Stock l. Dividend Rights. The holders of the shares of the Cumulative Preferred Stock shall be entitled to receive cut of the assets of the Corporation which are by law available for the payment of dividends, as and when declared by the Board of Directors, dividends at the rate of $4.00 per share per annum payable quarterannual ly on the last days of January, April, July and October in each year, commencing with the quarter- 6 4 annual dividend payable October 31, 1975 (the "Fixed Preferential Dividends"). Commencing August 1, 1975, such preferential dividends shall accrue from the first day of the quarter-annual dividend period and shall be cumulative so that if dividends in respect of any quar ter-annual dividend period at the rate of S4.00 per share per annum shall not have been paid upon or de clared or set -part for the Cumulative Preferred Stock, the defic.t. shall be fully paid or set apart before any dividend shall be paid upon or declared or set apart for the Common Stock, class B Stock or any other class of stock or series thereof hereafter created which ranks junior to the Cumulative Preferred Stock. Preferential dividends on the Cumulative Preferred Stock shall be deemed to accrue from day to day. A quarter-annual dividend period shall begin on the day following each dividend payment date set forth above and end on the next succeeding dividend payment date. Accumulations of dividends on any shares of Cumulative Preferred Stock shall not bear interest. in addition to the Fixed Preferential Dividends set forth in the second preceding subparagraph, the holders of shares of the Cumulative Preferred Stock shall be entitled to receive, out of the assets of the Corporation which are by law available for the payment of dividends, participating dividends (i) from the date of issuance of such shares to and including July 31, 1975, in an amount per share equal to 2 2/3% of the amount per share of dividends on the Common Stock (as then constituted) payable with respect to a record date falling within such period, (ii) from August 1, 1975 to and including November 20, 1980, in an amount per share equal to the excess over the paid or accrued Fixed Preferential Dividends per share during such period of 2 2/3% of the amount per share of dividends on the Common Stock (as then constituted) payable with respect to a record date falling within such period, (iii) from November 21, 1980 to and including July 31, 1985, In an amount per share equal to the excess over the paid or accrued Fixed Preferential Dividends per share during such period of an amount determined by dividing by 18,750 the aggregate amount of dividends on 10,000 shares of Common Stock (as then constituted) payable with respect to a record date falling within such pe riod (determined annually as of July 31st of each year) (iv) commencing August 1, 1985 and for the year ending July 31, 1986, in an amount per share equal to the excess over the paid or accrued Fixed Preferential Dividends during such year of an amount determined by dividing by 18,750 the aggregate amount of dividends (A) on 10,000 shares of Common Stock payable with re spect to a record date falling within the period *' ,VTs ' 7 i ( i r July 1, 1985 through February 27, 1986, and (B) on 130.000 shares of Common Stock payable with respect to a record date falling within the period February 28, 1986 through July 31, 1986, and (v) commencing on Au gust 1, 1986, for each year ending on July 31, in an amount per share equal to the excess over the paid or accrued Fixed Preferential Dividends per share during such year of an amount determined by dividing by 18,750 the aggregate amount of dividends on 1QQ,GQQ shares of Common Stock payable with respect to a record date falling within such year. In the case of shares of Cumulative Preferred Stock which cease to be outstanding in any year prior to July 31, such participating dividends for such pe riod shall be in an aggregate amount per share equal to the excess over the paid or accrued Fixed Preferential Dividends on the Cumulative Preferred Stock for such period of the amount payable on the Common Stock with respect to a record date falling within such period. Any such participating dividend shall be payable, with out further action by the Board of Directors, in the same manner (including without limitation, the same record and payment dates) as the dividend on the Common Stock giving rise to such participating dividend, com mencing with the first such dividend on the Common Stock. In the case of shares of Cumulative Preferred Stock which are outstanding only a part of any year ending on July 31, the aggregate participating divi dends for such period shall be payable, to the extent not previously payable, by a dividend payable on the date such shares cease to be outstanding to holders of record as of such date. In the event of a reorganiza tion, recapitalization, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Cor poration of all or substantially all of its assets, or any other change in the corporate structure or shares of the corporation, pursuant to any of which events the then outstanding shares of the Common Stock are split up or combined, or are changed into, become exchange able at the holder's election for, or entitle the holder thereof to, other shares of stock occurring after February 20, 1986, the participating dividends to which the holders of snares of the Cumulative Preferred Stock shall thereafter be entitled to receive pursuant to this subparagraph shall, instead of being determined in relation to the amount calculated by dividing by 18,750 the aggregate amount of dividends declared on 100.000 shares of Common Stock, be determined in rela tion to an amount calculated by dividing by 18,750 the aggregate amount of dividends declared on all shares originally represented by 100,000 shares of the Common Stock. 8 Ho dividend shall be declared, paid or set apart for payment on, and no other distribution shall be made or ordered in respect of, any share or shares of any other class of stock ranking on a parity with the Cumu lative Preferred Stock in respect of dividends or as sets unless there shall have been declared and paid or set apart for payment on all shares then outstanding of the Cumulative Preferred Stock for the seme quarterannual dividend period or part thereof, dividends in proportion to the respective dividend rates fixed for the cumulative Preferred Stock and said parity stock, 2. Redemption. Subject to the limitations here inafter set forth, the Cumulative Preferred Stock shall be redeemable, in whole at any time but not in part, to the extent permitted under the laws of the State of Delaware, at the election of the Board of Directors, upon notice given as hereinafter provided, at a redemp tion price equal to but no more than $100 per share plus an amount equal to all dividends accrued thereon and not paid as of the date fixed for redemption whether or not such dividends have been declared, sub ject, however, in the event of dissolution of the Cor poration within one year thereafter to a supplementary participating payment, as more fully set forth in para graph 3 below. Notice of intention to redeem and of the date and place of redemption shall be mailed not less than thirty (30) days prior to the date fixed for redemption (the "redemption date") to each holder of record of shares to be redeemed at his last known post office address shown on the records of the corporation. On and after the redemption date set forth in saidnotice, each holder of shares of the Cumulative Pre ferred Stock called for redemption shall present and surrender his certificate(s) for such shares at the place designated in said notice and shall thereupon be entitled to receive the redemption price, ff notice of redemption shall have been given as aforesaid, then notwithstanding that any or all of the certificates representing any shares called for redemption shall not have been surrendered {unless default shall be made by the Corporation in payment ol the redemption price), dividends on such shares shall cease to accrue on the redemption date, and all rights of the holders of the Cumulative Preferred Stock with respect to the shares so called for redemption shall forthwith upon the re demption date cease and terminate, except the right of the holders thereof to receive the redemption price without interest upon surrender of the certificate, and such shares shall not thereafter be transferred (except with the consent of the Board of Oi rectorsJ on the books of the Corporation, and such shares shall not be deemed to be outstanding for any purpose whatsoever. In the event that any shares of the Cumulative Preferred Stock called for redemption shall not have been surrendered for redemption vithin si* months suc ceeding the redemption date* and if the funds for such redemption for such si* month period were deposited with any paying agent or otherwise set apart so as to have been continuously available for the redemption of such shares, then such funds may again be used by the Corporation for its corporate purposes and the holders of shares of stock so called for redemption or surren der during such si* month period shall thereafter have only the right of general unsecured creditors to the redemption price of such shares and shall in no event be entitled to interest. nothing contained in this section shall limit any legal right of the Corporation to purchase, to the extent permitted under the lavs of the State of Dela ware, any shares of the Cumulative preferred Stock. Subject to the foregoing provisions, the Board of Directors in its sole discretion shall have power and authority to prescribe the manner and the terms and conditions upon which the Cumulative Preferred Stock shall be redeemed. Shares of Cumulative Preferred Stock redeemed or purchased by the Corporation may not thereafter be reissued by the Corporation, 3, Distribution of Assets. In the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of the Cumulative Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to the stockholders thereof the fi:<ed amount of $100 per share plus an amount equal to all Fixed Preferential Dividends accrued and unpaid thereon, as of the date of distribution, whether or not such dividends have been declared, before any distribu tion of such assets shall be made to holders of Common Stock, Class B Stock or arty other class of stock or series thereof hereafter created ranking junior to the Cumulative Preferred Stock with respect to distribution of net assets. If upon such liquidation, dissolution, or winding up of the Corporation, the assets of the Corporation shall be insufficient to permit the payment to all outstanding shareholders of Cumulative Preferred Stock of the full amount to which they are entitled as afore said, then the assets of th Corporation available for distribution to the holders of Cumulative Preferred Stock shall be distributed among such shareholders in proportion to the full amounts to which they ore respectentitled, After payment of the fixed preferential distribu tion set forth in the second preceding subparagraph, shares of the Cumulative Preferred Stock shall partici pate with the shares of Common Stock in an amount per share equal to the excess ever $100 of the amount cal culated by dividing by 18,750 the aggregate amount distributed on IQG.00Q shares of Common Stock* Holders of shares of the Cumulative Preferred Stock called for redemption by the Corporation one year or less prior to the date of dissolution of the Corporation shall be entitled to a like participation with respect to their shares of the Cumulative Preferred Stock so called. In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Common Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock, the participating distributions to which the holders of shares of the Cumulative Preferred Stock shall thereafter be entitled to receive pursuant to this subparagraph shall be in an amount per share equal to the excess over $160 of an amount calculated by dividing by 16,750 the aggregate distributions to be paid on all shares originally represented by 100,000 shares of the Common Stock. After payment upon any liquidation, dissolution or winding up of the Corporation to the holders of shares of Cumulative Preferred Stock as hereinabove provided, and subject to the foregoing rights of participation by shares of Ciawlative Preferred Stock, the remaining assets of the Corporation shall be paid and/or distrib uted to the holders of shares of Common Stock, Class B Stock or any other class of stock or series thereof hereafter created which ranks junior to the Cumulative Preferred Stock, subject to any preference to such assets herein provided with respect to the Common Stock or hereafter determined for any such newly created stock or series thereof, in proportion to the respec tive number of shares held by them. neither the merger nor consolidation of the Cor poration into or with any other corporation, nor the merger or consolidation of any other corporation into or with the Corporation, nor a sale, transfer or lease of all or any part of the assets of the Corporation, u - 1. shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this paragraph 3. 4, Conversion. Shares of the Cumulative Pre ferred Stock may not be converted into, or exchanged for, any other class of stock or series thereof of the Corporation. 5. Voting. Except as otherwise provided herein and except as provided by law, the holders of shares of the Cumulative Preferred stock shall not be entitled to vote for any purpose whatsoever. If the Corporation shall be in default in the payment of dividends on the Cumulative Preferred Stock in an amount equivalent to or exceeding four Cull quar terly dividends (whether or not consecutive], the num ber of directors constituting the Board of Directors shall be increased by one and holders of shares of the Cumulative Preferred Stock, voting separately as one class, shall be entitled at the next annual meeting of stockholders or the next special meeting of stockhold ers, or at a special meeting of holders of shares of the Cumulative Preferred Stock called as hereinafter provided, to fill such newly created directorship, each share of the Cumulative Preferred Stock entitling the holder thereof to one vote? provided, however, that when all arrears in dividends on the Cumulative Pre ferred Stock then outstanding shall have been paid and dividends thereon for the current quarterly period shall have been paid or declared and a sum sufficient for the payment thereof set aside, then (i) the right of holders of shares of the Cumulative Preferred Stock to participate in the election of one director Shall cease but subject always to the same provisions for vesting of such voting rights in the case of any simi lar future arrearages in dividends; (ii) the term of the director then in office elected by holders of shares of the Cumulative Preferred Stock shall termi nate; and (iii> the number of directors constituting the Board of Directors shall be reduced by one. Whenever such voting right shall vest, it may be exercised initially either at a special meeting of holders of shares of the Cumulative Preferred Stock or at any annual or special stockholders' meeting, but thereafter it shall be exercised only at annual stock holders' meetings. A special meeting for the exercise of such right shall be called by the President or any Vice President of the Corporation within ten days after receipt of a written request signed by the holders of record of at least 10% of the outstanding shares of the Cumulative Preferred Stock, and such meeting shall be *;' J.vj 12 held at the earliest practicable date thereafter; how ever, no such special meeting shall be held during the 90-day period preceding the date fixed for the annual meeting of stockholders. Any director who shall have been elected by hold ers of shares of the Cumulative Preferred Stock shall hold office for a term expiring (subject to the earlier payment of arrears in dividends) at the-hext annual meeting of stockholders, and during such term may be removed at any time, either for or without cause, only by the affirmative votes of holders of record of a majority of the outstanding shares of the Cumulative Preferred Stock given at a special meeting of such stockholders called for the purpose. Any vacancy cre ated by such removal may also be filled at such meet ing. A meeting for the removal of a director elected holders of the Cumulative Preferred Stock and the filling of the vacancy created thereby shall be called by the President or any Vice President of the Corpora tion within ten days after receipt of a request there for, signed by holders of not less than 25% of the then outstanding shares of the Cumulative Preferred Stock. Such meeting shall be held at the earliest practicable date thereafter. Any vacancy caused by the death or resignation of a director who shall have been elected by holders of shares of the Cumulative Preferred Stock may be fiLled only by holders of shares of the Cumulative Preferred Stock at a meeting called for such purpose. Such meet ing of holders of shares of the Cumulative Preferred Stock shall be called by the President or any Vice President of the Corporation at the earliest practi cable date after any such death or resignation and in any event within ten days after receipt of a written request signed by the holders of record of at least 10% of the outstanding shares of the Cumulative Preferred Stock. Such meeting shall be held at the earliest practicable date thereafter. If any meeting of holders of shares of the cumu lative Preferred Stock required by this paragraph 5 to be called shall not have been called within ten days after personal service of a written request therefor upon the President or any Vice President of the Cor poration or within 15 days after mailing the same within the United States of America by registered mail addressed to the President or any vice President of the Corporation at its principal office, then holders of record of at least 10% of the outstanding shares of the Cumulative Preferred Stock may designate in writing one of their number to call such a meeting at the expense of the Corporation and such meeting may be called by - 14 13 such person so designated upon the notice required for annuel meetings of stockholders, Any holder of shares of the Cumulative Preferred Stock so designated shall have access to the stock hooks of the Corporation for the purpose of causing meetings of stockholders to be called pursuant to these provisions. Any meeting of holders of shares of the Cumulative Preferred Stock to vote for the election or removal of a director shall be held at the place for the holding of the annual meeting of stockholders of the Corpora tion or, in the case of a special meeting, at such place within or without the State of Delaware reason ably convenient to the holders of shares of the Cumu lative preferred Stock as may be specified in the no tice thereof. At such meeting, the presence in person or by proxy of holders of a majority of the outstanding shares of the Cumulative Preferred Stock shall be re quired to constitute a quorum; in the absence of a quorum, a majority of the holders present in person or by proxy shall have power to adjourn the meeting from time to time without notice, other then announcement at the meeting, until a quorum shall be present. A direc tor shall be chosen at any such meeting by a plurality of the votes cast at the election, and the question of removal of a director shall be determined by a majority of the votes cast on such question. ARTICLE V 1, Elections of directors need not be by ballot unless the By-laws of the Corporation shall so provide. 2. Any director may be removed from office either with or without cause at any time hy the affirmative vote of stockholders of record holding a majority of the outstanding shares of the stock of the corporation entitled to vote, given at a meeting of the stockholders called for that pur pose. 3. The amount of the authorized stock of the Corporation of any class or classes may be increased or decreased by the affirmative vote of the holders of a major ity of the stock of the Corporation entitled to vote. 14 iu 4, lii furtherance and not in limitation of the powers conferred upon the Board of directors by statute, the Board of Directors is expressly authorized to make, adopt, alter, amend and repeal from time to time By-lavs of the Corporation, subject to the right of the stockholders enti tled to vote vith respect thereto to alter and repeal By laws made by the Board of Directors. 5, Bxcept as otherwise provided by statute, any action which might have been taken by a vote of the stock holders at a meeting thereof may be taken with the written consent of such of the holders of stock who would have enti tled to vote upon the action if a meeting were held as have not less than the minimum percentage of the total vote re paired by statute Cor the proposed corporate action? pro vided that prompt notice shall be given to ail stockholders of the taking of such corporate action without a meeting if less than unanimous written consent is obtained. 6, Ho holder of any stock of the Corporation of any class now or hereafter authorized shall have any right {other than such right, if any, as the Board of Directors in its discretion may determine} to subscribe for, purchase or otherwise acquire fro the Corporation any share of stock of the Corporation of any class now or hereafter authorized, or any securities convertible into or exchangeable for any such shares, or any warrants or other instruments evidencing rights or options to subscribe for, purchase or otherwise acquire any such shares, whether such shares, securities. IS warrants or other instruments be unissued or issued and thereafter acquired by the Corporation. 7. The corporation will not issue or reissue any Common Stock or Class B Stock of the Corporation or sell or otherwise transfer any Common stock or Class S Stock held by or for the account of the Corporation, unless such issuance, reissuance, sale or-other transfer shall first have been approved by the affirmative vote of the holders of a major' ity of the shares of Coates Stock and Class B Stock then issued and outstanding voting together ss a single class, ARTICLE VI The Corporation reserves the right to amend, al ter, change or repeal any provision contained in this Cer tificate 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. * 16 - EM WITNESS WHEREOF, The Dyson-Kiswier-Moran Cor poration has caused this Restated Certificate of . Incorporation to be signed by Ernest H. Lorch( its Presi dent* and attested by John K. PitzSiaons, its Secretary* this of February, 1986. (Delaware PAGE 1 <Tfte first State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF TBE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE DYSON-KXSSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF MARCH, A.D. 1986, AT 10 O'CLOCK A.M. 0558820 8100 091013314 You my rarity this cartlticata onrma  THE CORPORATION TRUST COMPANY DATE SUBMITTED March 11. 1W Pursuant to oomsafa instmctions, submitted for fHlng toy. The Corporation This! Company 'ISWtwM File DATE Harch 27 - FILER'S NO. NAME OF COMPANY THE PVSQN~KISSNgH-HORA CORPORATION FILE NUMBER , 55B6T.iS, TYPE OF DOCUMENT . SMWS^.gUMBBBSL. SECTION NO. ___Ml. CHANGES NAME CHANGES AGENT?OFFICE STOCK* ______________ TO*,__________________ FRANCHISE TAX* receded 8fT CMPC*****6 ^VlSlC^0* S': OTHER. OTHER, Rllng Fee Tax S JE-P. Closed I Invoiced Receiving and Indexing $------NO. 2 Certified Copies *_____ APR l B66 NO., PAGES (If prepared by the Division of Corp.) $ iyr* * ...... .............. ... -- * TOTAL $ ooooi CERTIFECATS OP AKSKDHEHT OF lOtovr* f.iced; mm m RESTATED CERTIFICATE OF I8C0BP08ATIQH OF THE DTSOH-KISSHER-MORAN CORPORATION TOE DYSOH-KISSHER-MORAN CORPORATION, a Delaware corporation {the "Corporation"), DOES HEREBY CERTIFY: FIRST* that the Board of Directors of the Cor poration duly adopted the following resolution proposing and declaring advisable the following amendment to the Restated Certificate of Incorporation of the Corporations RESOLVEDr that the Board of Directors of the Cor poration hereby proposes and declares it advisable that paragraph 1 of Part A of Article iv of the Corporation's Restated Certificate of Incorporation be amended to read, in its entirety, as follows* *1, Dividend Rights, Dividends say be paid in cash or otherwise upon thecoasson Stock and Class 8 Stock in the relationship and upon the terns provided for below with respect to each such class: (a) Dividends on Common Stock. The voting Common Stock and'tbe Honvoting Common Stock she11 participate equally wit! respect to the payment of dividends. Dividends say be paid upon the Common Stock, when and as declared by the Board of Directors, out of the assets which are by lav available for the payment of dividends. Subject to the express terms of any outstanding shares of Cumulative Pre ferred Stock, the declaration and payment of dividends on the Common Stock and the amount thereof shall at all times be solely in the discretion of the Board of Directors of the Corporation. Cb) Dividends on Class B Stock. The Voting Class 8 Stock and iheNonvoting Class B Stock shall participate equally with respect to the payment of dividends. Subject to the exoress terms of anv outstandino shares of Cumulative Preferred Stock, the holders of shares of Class B Stock shall be entitled to receive, out of the assets of the Cor poration which are by lav available for the payment of divi dends, as and when declared by the Board of Directors, fixed dividends, at the rate of $0.08 per annum, for each year ending cm January 31, beginning vith the year ending January 31, 1387, payable quarter-annually or the last days of Janu ary, April, July and October, beginning with the quarterannual dividend payable on April 30, i960: provided, how ever, that if the aggregate amount of dividends declared per share on the Common Stock vith respect to a record date falling within any such quarter-annual period shall be less than $0.02 per share, holders of Class B Stock shall only be entitled to receive fixed dividends in such lesser amount (if any) as shall be declared on the Common Stock. In addi tion to such fixed dividends, the holders of shares of Class B stock shall be entitled to receive participating dividends for each year ending on January 33, beginning with the year ending January 31, 1987, in an aggregate amount per share equal to the excess over $12.03 per share of the aggregate amount of dividends declared per share on the Common Stock with respect to record dates Calling within such year. Any such participating dividends shall be payable, without fur ther action by the Board of Directors, in the same manner t including without limitation, the same record and payment dates) as the dividends on the Common Stock giving rise to such participating dividends on the Class B Stock. Except as aforesaid, no dividends shall be payable on the Class B Stock, __ In the event of a reorganization, recapitaliza tion, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Common Stock or Class B Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock, the fixed and participating dividends to which the holders of shares of the Class B Stock shall thereafter be entitled to receive pursuant to the preceding subparagraph shall be determined in relation to the aggregate amount of dividends per share declared on all shares originally represented by the shares of the Common stock or Class B Stock, as the case may be, issued and outstanding immediately prior to such event.* SECONDt that the aforesaid amendment has been consented to by the holders of at least a majority of the issued and outstanding stock of the Corporation entitled to {.OfiiiQ . ote thereon by written consent given in accordance with the provisions of Sections 22S and 242 of Chapter 1 of Title 8 of the Delaware Code end filed with the Corporation. THIRDS that the aforesaid amendment was duly adopted in accordance with the provisions of Section 242 of Chapter 1 of Title 8 of the Delaware Code. SH WITKESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its President i *4% , * imm&Mmkwm a. , i-*fs `Defaware PAGE 1 <Jhe first State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE DYSON-KIS8NER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE TWELFTH DAY OF JANUARY, A.D. 1987, AT 10 O'CLOCK A.M. DATE: 11-12-09 FILED cmmcxn or umtamrt or restated certificate or woorporatiok THE BT80H-XISSKBR-WORAH CORPORATION, "a corporation organisad and existing under and by virtue of the General Corporation Lav of the State of Delaware, DOBS HERESY CER TIFY: FIRST: That the Board of Directors of said cor poration, at a Meeting duly called and held, adopted a reso lution proposing and declaring advisable the following amendment to the Restated Certificate of incorporation of said corporation: RESOLVED, that the Board of Directors of the Cor poration hereby proposes end declares it advisable that Articla v of the Corporation's Restated Cer tificate of Incorporation be Mended by adding thereto a new paragraph to be number s, as fol lows: Ho director of the Corporation shall have ability to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a di rector: provided, however, that the foregoing shell not eliminate or limit the liability of any director (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 vhich involve intentional misconduct or a knowing violation of lav, fill> under Section 174 of the Delavare General Corporation Lav, or (iv) for any transaction from vhich the director derived an improper personal benefit* The foregoing shell not eliminate or limit the liability of a director for any act or omission occurring prior to the date when this provision shell become effective. SBQQKD: That in lieu of a meeting and vote of Stockholders, a majority of the Stockholders of said cor ?oration have given their vritten consent to said amendment n accordance vith the provisions of Section 226 of the General Corporation Lav of the State of Delavare. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Lav of the State of Delavare. IH WITNESS HHHU50F, The Dyson-Kissntr-Moran ha* caused this taended end Restated certificate of Incorpora tion to be signed by Ernest H torch, its President, and attested bp John R. PitsSisons, its Secretary, this 3oT*>day of Nweelbar, X9SS. 2 RBW105-17554-REP Tfk first State PAGE 1 I, JEFFREY W. BULLOCKf SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-NINTH DAT OF JANUARYr A.D. 1987, AT 10 O'CLOCK A.M. 0558820 8100 091013314 Ifoujnay irefify thiscartlticate otuiam THECCMUWIIAT10NTRUST iXMPWY :<? ' ' ' 477029028 Pursuant tocosaoTs fotracftoa* *ubm*d torf*igby. Pftfr>*rg .>?. mm _ ----------- -------FUSTSNO.___ 29 NAME OP COMPANY,, FHNUMBER ,,,. OTMftdUL TYPEOFOOCUWENT CEBTTPtcvry cat uamnmee section wx JJSL CHANGES NAME CHANGES AGENT/OFF5CE. STOCK?_______________ TO$___________________ FRANCHiSETAXt OTHER. OTHER. RECEIVED ** .TONS &Q^/MStQgQ '/if*VQlCL m li*9? *B u m '*'*' FSKncFasTax % ^ ^RecsivIngontffndoMng t NO- * Certified Copies t NO., PAGES (8 prepared ty*sDfc*sktf Coq*> 4 ___________________ * TOTAL $ 00003 O/t .<i B770298M- FILED lO fim certificate of mgaaMarf or RESTATED CERTIFICATE Of INCORPORATION. OF THE DYSOM-KISSNeR-HORAN CORPORATION THE DYSOH-KISSHER-MORAN CORPORATION, a Delaware corporation (the "Corporation*), DOBS HEREBY CERTIFY! FIRST: that the Board of Directors of the Cor poration duly adopted the following resolution proposing and declaring advisable the following amendment to the Restated Certificate of Incorporation of the Corporations RESOLVED, that the Board of Directors of the Cor poration hereby proposes and declares it advisable that the first sentence of paragraph numbered 2 of Part A of Arti cle iv of the Corporations Restated Certificate of Incorporation be amended to read, in its entirety, as follows: % "In the event of voluntary or involuntary liquida tion, dissolution, or winding up of the Corporation, after there shall have been paid or set aside for payment to the holders of Cumulative Preferred Stock of the full preferen tial amounts to which they are entitled, the holders of shares of the common stock shall be entitled to receive out of the assets of the Corporation available for distribution to the stockholders thereof the fined amount of $125,00 per share before any distribution of such assets shall be made to holders of class' 6 Stock or any other class of stock or series thereof hereafter created ranking junior to the Com mon Stock with respect to distribution of net assets SECOND: that the aforesaid amendment has been consented to by the holders of at least a major tty of the issued and outstanding stock of the Corporation entitled to vote thereon by written consent given in accordance with the provisions of Sections 228 and 242 of Chapter 1 of Title 8 of the Delaware Code and filed with the Corporation. THIRD? that the aforesaid anendaent vas duly adopted In accordance with the provisions of Section 242 of Chapter 1 of Title 8 of the Delaware Code. IK witness WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its President and attested by its Secretary, this pft day of January, ATTEST tVeCazvare PAGE 1 (Ifie first State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF TEE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF ''THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE THIRTEENTH DAY OF JUNE, A.D. 1989, AT 10 O'CLOCK A.M. THE CORPORATION TRUST COMPANY date submitted ___ .% -7Zqi(et462J> Pursuant to counsel's instructions, submitted for filing by; The Corporation Trust Company FILE OATE J. A. <3rodzickicd TIME Juna 13, 1939 10 a.m. FILER'S NO. - 0QQ10 NAME OF COMPANYTHE DYSON-KISSWEfi-MOEAN CORPORATION FILE NUMBER 05568-20 TYPE OF DOCUMENT RESTATED CERTIFICATE OF iScMporaTTSS CHANGES NAME CHANGES AGENT/OFFICE. STOCKS _____________ TOS__________________ FRANCHISE TAX* SECTION NO. 242 i 245 Closed/Invoiced juN 17 1989 ! OTHER. OTHER. Received Filing Fee Tax S /ST&& Receiving and Indexing $ - NO. ..3 Certified Copies S _ f Corporat/o^ N0-----------RAGES (If prepared by the Division of Corp.) $ $ ftMUMa TOTAL $ NY S (REV. cl - ISM- </S8 n'lA l(jt*4(>'l> RESTATED CERTIFICATE OF--IHCORPQRATIQ.N. OF TfflB-.PYS.QKzKlSSKEB-WQBAN .CQRfQB&TION THE DYSON-KISSNER-MORAM CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CER TIFY: FIRST: That (i) the name of the corporation Is THE DYSON-KISSNER-MORAN CORPORATION, (ii) the name under which the corporation was originally incorporated was "The Dyson Company, Inc.1', and (iii) the date of filing its original Certificate of Incorporation with the Secretary of State was October 28, I960. SECOND: That this Restated Certificate of Incorporation was duly adopted in accordance with the provisions of Sections 228, 242 and 245 of Chapter I of Title 8 of the Delaware Code; THIRD: That this Restated certificate of Incorporation has been consented to and authorized by the holders of at least a majority of the issued and outstanding stock of the Corporation entitled to vote thereon by a written consent given in accordance with the provisions of Sections 228, 242 and 245 of Chapter I of Title s of the Delaware Code and filed with the Corporation. FOtJRTH: That the text of the Certificate of Incorporation as amended or supplemented heretofore is further amended hereby,jtojread as herein set forth in full: ASTiraS-I The name of the Corporation is THE DYSON-*KISSNER-MORAN CORPORATION mxmja The registered offLao of the Corporation in the state of Delaware is located at 1209 Orange Street, in the City of Wilmington, County of New Castle. The name and address of the Corporation's registered agent is The Corporation Trust Company, No. 1209 orange street, Wilmington, Delaware. ARTICLE-III . The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. The total number of shares of stock which the corporation shall have authority to issue is 2,200,000 shares, of which ., (a) Ten Thousand <10,000) shares shall be Voting Common Stock of the par value of Ten Cents ($0.10) per share (the "Voting Common Stock"); (b) one Million Nine Hundred and Ninety Thousand (1,990,000) shares shall be Nonvoting Common stock of the par value of Ten Cents ($0.10) per share (the "Nonvoting Common Stock"); . n.,1 2 May-25, 1989 21505593 (c) Five Hundred (500) shares shall be Voting Class B Common Stock of the par value of Ten Cents ($0.10) per share (the "Voting Class B Stock")? (d) One Hundred Ninety Nine Thousand and Five Hundred (199,500) shares shall be Nonvoting Class B Common stock of the par value of Ten Cents ($0.10) per share (the "Nonvoting Class B stock"). The Voting Common Stock and the Nonvoting Common Stock are hereinafter sometimes referred to together as the "Common Stock," and the Voting Class B Stock and the Nonvoting Class B Stock are hereinafter sometimes referred to together as the "Class B Stock." The following is a statement of the designations, preferences, qualifications, privileges, limitations, options, conversion rights and other special rights in respect of the several classes of stock of the Corporation. figfimph.jS&agH 9^4.Xlag.a.-fi..SfeMsK The Common Stock and the Class B Stock shall have the respective designations, rights, preferences, privileges and restrictions as follows: 1- Dividend Rights. Dividends may be paid in cash or otherwise upon the Common Stock and Class B Stock in the relationship and upon the terms provided for below with respect to each such class: (a) Dividends on Common Stock. The Voting Common Stock and the Nonvoting Common Stock shall participate equally with respect to the payment of dividends. Dividends may be paid upon the Common Stock, when and as declared by the Board of Directors, out of the assets which are by law available for the payment of dividends. The declaration and payment of dividends on the Common Stock and the amount thereof shall at all times be solely in the discretion of the Board of Directors of the Corporation. <b) Dividends on Class B Stock. The Voting Class B Stock and the Nonvoting Class B Stock shall participate equally with respect to the payment of dividends. The holders of shares of Class B Stock shall be entitled to receive, out of the assets of the Corporation which are by law available for the payment of dividends, as and when declared by the Board of Directors, fixed dividends, at the rate of $0.08 per annua, for each year ending on January 31, beginning with the year ending January 31, 1987, payable quarterannually on the last days of January, April, July and October, beginning with the quarter-annual dividend payable on April 30, 1986; PEOYidafl, howfly.gr, that if the aggregate amount of dividends declared per share on the Common Stock with respect to a record date falling within any such quarter-annual period shall be less than $0.02 per share, holders of Class B stock shall only be entitled to receive fixed dividends in such lesser amount (if any) as shall he declared on the Common Stock. In addition to such fixed dividends, the holders of shares of class B Stock shall be entitled to receive participating dividends for each year ending on January 31, beginning with ,the year ending January 31, 1987, in an aggregate amount per share equal to the excess over $12.00 per share of the aggregate amount of dividends declared per share on the Common Stock with respect to record dates falling within such year. Any such participating dividends shall be payable, without further action by the Board of Directors, in the same manner (including without limitation, the same record and payment dates) as the dividends on the Common Stock giving rise to such participating dividends on the Class B Stock. Except as aforesaid, no dividends shall be payable on the class B Stock. In the event of a reorganization, recapitali zation, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Common Stock or Class B Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock, the fixed and participating dividends to which the holders of shares of the Class B Stock shall thereafter be entitled to receive pursuant to the preceding paragraph shall be determined in relation to the aggregate amount 4 Kay 25, 1989 21505593 of dividends per share declared on all shares originally represented by the shares of the common stock or class B stock, as the case may be, issued and outstanding immediately prior to such event. 2. Distribution of Assets in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of the Common Stock shall be entitled to receive out of the assets of the Corporation available for distribution to the stockholders thereof the fixed amount of $125.00 per share before any distribution of such assets shall be made to holders of Class B Stock or any other class of stock or series thereof hereafter created ranking junior to the Common Stock with respect to distribution of net assets. If upon such liquidation, dissolution, or winding up of the Corporation, the assets of the corporation shall be insufficient to permit the payment to all of the holders of outstanding shares of Common Stock of the full amount to which they are entitled as aforesaid, then the assets of the Corporation available for distribution to the holders of common Stock shall be distributed among such holders of shares of Common Stock in proportion to the full amounts to which they are respectively entitled. : The holders of Voting Common Stock and Monvoting Common Stock shall participate equally with respect to the payment of any such preferential amount upon liquidation, dissolution or winding up of the Corporation. In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger or consolidation,, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the corporation, pursuant to any of which events the then outstanding shares of the Common Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock, the preferential distributions to which the holders of shares of the common Stock shall thereafter be entitled to receive pursuant to this Section 2 shall be adjusted accordingly. After payment upon any liquidation, dissolution or winding up of the Corporation to the holders of shares of common Stock as hereinabove provided, the remaining assets of the corporation shall be paid and/or distributed to the holders of shares of Common Stock 5 Hay 25, 1989 " 21505593'. and Class B stock in proportion to the respective number of shares held by them. Neither the merger nor consolidation of the Corporation into or with any other corporation, nor the merger or consolidation of any other corporation into or with the corporation, nor a sale, transfer or lease of all or any part of the assets of the corporation, shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 2. 3. Voting Rights. Except as otherwise provided herein and except as otherwise provided by law, the holders of shares of Nonvoting common Stock and Nonvoting Class B Stock shall not be entitled to vote for any purpose whatsoever. Each holder of shares of Voting common Stock and Voting Class B stock shall be entitled to cast one vote in respect of each share of such stock held by him and shall be entitled to cast such vote for any and all purposes. Except as otherwise provided by law, the holders of Voting Common Stock and Voting Class B Stock shall vote together as a single class on all matters. ARTICLEjy 1. Elections of directors need not be by ballot unless the By-laws of the Corporation shall so provide. 2. Any director may be removed from office either with or without cause at any time by the affirmative vote of stockholders of record holding a majority of the outstanding shares of the stock of the Corporation entitled to vote, given at a meeting of the stockholders called for that purpose. 3. The amount of the authorized stock of the corporation of any class or classes may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote. 6 Hay 25, 1989 21505593 ... 4. in furtherance and not in limitation of the powers conferred upon the Board of Directors by statute, the Board of Directors is expressly authorized to make, adopt, alter, amend and repeal from time to time By-laws of the corporation, subject to the right of the stockholders entitled to vote with respect thereto to alter and repeal By-laws made by the Board of Directors. 5. Except as otherwise provided by statute, any action which might have been taken by a vote of the stockholders at a meeting thereof may be taken with the written consent of such of the holders of stock who would have been entitled to vote upon the action if a meeting were held as have not less than the minimum percentage of the total vote required by statute for the proposed corporate action; provided that prompt notice shall be given to all stockholders of the taking of such corporate action without a meeting if less than unanimous written consent is obtained. 6. No holder of any stock of the corporation of any class now or hereafter authorized shall have any right (other than such right, if any, as the Board of Directors in its discretion may determine) to subscribe for, purchase or otherwise acquire from the Corporation any shares of stock of the Corporation of any class now or hereafter authorized, or any securities convertible into or exchangeable for any such shares, or any warrants or other instruments evidencing 7 Hay 25, 1589 21505593 'i rights or options to subscribe for, purchase or otherwise acquire any such shares, whether such shares, securities, warrants or other instruments be unissued or issued and thereafter acquired by the Corporation. 7. The Corporation will not issue or reissue any Common Stock or Class B Stock of the Corporation or sell or otherwise transfer any common Stock or Class B Stock held by or for the account of the Corporation, unless such issuance, reissuance, sale or other transfer shall first have been approved by the affirmative vote of the holders of a majority of the shares of Common Stock and Class B Stock then issued and outstanding voting together as a single ' class. . 8. No director of the Corporation shall have personal liability to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that the foregoing shall not eliminate or limit the liability of any director (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, or (iv) for any transaction from which the director derived an improper personal benefit. The foregoing shall not eliminate or limit the liability of a director for any act or omission occurring prior to January 12, 1887. 8 Hay 25, 19B9 21505593 > ABXIM VI The corporation reserves the right to amend, al ter, change or repeal any provision contained in this 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 WHEREOF, The Dyson-Xissner-Moran Corporation has caused this Restated Certificate of Incorporation to be signed by Ernest H. torch, its President, and attested by John H, Fitzsimons, its Secretary, this $/ day of May, 1989. 9 May 25, 1989 21505593 Vefaware PAGE 1 `Ihe first State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE FIRST DAY OF APRIL, A.D, 1991, AT 11 O'CLOCK A.M. I I ST'3` DIVISION OK CORPORATIONS FILED 11:00 AM 04/01/1991 731091026 - 558820 certificate of Amendment . of Restated certificate of incorporation of The oynm-KluiuH^ltom corporation P.E The Dyson-Kissnar-Horan Corporation, a corporation organised under and by virtue of the General Corporation Law of the state of Delaware (the "Corporation"), does hereby certify as follows* 4 PJRST* The certificate of Incorporation of the corporation was originally filed in the Office of the secretary of state of the State of Delaware on October 38, i960 (under the name "The Dyson company, Inc.); and a Restated Certificate of incorporation of the Corporation was filed in the Office of the Secretary of State of the state of Delaware on crane is, 1989. SSCowDt The Restated Certificate of incorporation of the Corporation is hereby amended by striking ARTICLE IV thereof in its entirety and substituting in lieu thereof the following: **e amcEB-jy The total number of shares of stock which the Corporation shall have authority to issue is 3,400,000 shares, of which (a) Ten Thousand (10,000) shares shall be Voting Common Stock of the par value of Ten Cents ($0.10) psr share (the "Voting Class A Common Stock") i . (b) one Million Nine Hundred and Ninety Thousand (1,990,000) shares shall be Nenvoting Common stock of the par value of Ten Cents (80.10) psr share (the "Nonvoting class A common stock"); and (C) four Hundred Thousand (400,000) shares Shall be Class B Common Stock of the par value of Ten Cents ($0.10) . per share (the "Class B Common Stock"). The Voting Class A Common Stock and the Nonvoting Class A Common Stock are hereinafter sometimes referred to together as the "class A common stock* The following is a statement of the designations, preferences, qualifications, privileges, limitations, options, conversion rights and other special rights in respect of the several classes of stock of the Corporation. APR 01 '91 10!32 OLWINE.CONNEULY,CHASE P.3 2 Claca A Cowman flfconk imd CTw n Common Stock The Claes A Cannon stooK ana the Claes B Common stock shall have the respective designations/ rights/ preferences, privileges and restrictions as follows; 1* Dividend Rights. Dividends nay he paid in oash or otherwise upon the class A common stock and class B cannon Stock in the relationship and upon the terns provided for below with respect to each such class: ' (a) pividenae on oImbb a, go^nn fftgg1e- Vhe Voting Class A Common Stock and the Nonvoting class A Common Stock shall participate equally with respect to the payment of dividends* Dividends nay he paid upon the Class A Common Stock, when and ae declared by the Board of Directors, out of the assets which are by law available for the payment of dividends. The declaration and payment of dividends on the Class A Common Stock and the amount thereof shall at all times be solely in the discretion -of the Board of Directors of the Corporation. (b) Dividends on Class B common ptock. The holders of shares of Class B common Stock shall be entitled to receive, out of the assets of the Corporation which are by lew available for the payment of dividends, as and when declared by the Board of Directors, fixed dividends, at the rate of 90.08 per annum, for each year ending on January 31, beginning with the year ending January 31, 1987, payable quarter-annually on the last days of January, April, July and October, beginning with the quarter-annual dividend payable on April 30, 1986; provided, however, that if the aggregate amount of dividends declared per share on the Class A Common Stock with respect to a record date falling within any such quarter-annual period shall be less than $0.02 per share, holders of Class B common Stock shall only be entitled to receive fixed dividends in such lesser amount (if any) as shall be declared on the class A Common stock. Xn addition to such fixed dividends, the holders of shares of class B Common Stock shall be entitled to receive participating dividends for each year ending on January 31, beginning with the year ending January 31, 1987, in an aggregate amount per share equal to the excess over $12.00 per share of the aggregate amount of dividends declared per share on the Class A Common Stock with respect to record dates falling within such year. Any such participating dividends shall be payable, without further action by the Board of Directors, In the same manner (including without limitation, the earns record and payment dates) as the dividends on the Class A Common Stock giving rise to suah participating dividends on the Class B common Stock. Except as aforesaid,' no dividends shall be payable on the Class B RPR 01 '91 10532 OLWINE,CONSELLY,CHASE P.4 3 common Stock. In the event of a reorganisation, recapitalisation, stock split, stock dividend, combination of shares, verger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other Change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Class A Cowvon stock or the class B Common stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other Shares of stock, the fixed and participating dividends to which the holders of shares of the Class B Common Stock shall thereafter be entitled to receive pursuant to the preceding paragraph shall be detervinad in relation to the aggregate amount of dividends per share declared on all shares originally represented by the shares of the class A Common stock or the Class B Common stock, as the oaae way be. Issued and outstanding immediately prior to such event. 3. Distribution of Assets. In the event of voluntary or involuntary liquidation, dissolution or winding UP of the Corporation, the holders of shares of the class A Common Stock shall be entitled to receive out of the assets of the Corporation available for distribution to the stockholders thereof the fixed amount of $139.00 per share before any distribution of such assets shall be made to holders of Class B Common Stock or any other class of stock or series thereof hereafter created ranking junior to the Class A Common Stock with respect to distribution of net assets. If upon such liquidation, dissolution, or winding up of the corporation, the assets of the corporation shall be insufficient to permit the payment to all of the holders of outstanding shares of Class A Common stock of the full amount to which they are entitled as aforesaid, then the assets of the corporation available for distribution to the holders of Class A Common Stock shall be distributed among such holders of shares of the class A Common Stock in proportion to the full amounts to which they are respectively entitled. The holders of Voting Class A Common Stock and Nonvoting Class A common Stock shall participate equally with respect to the payment of any such preferential amount upon liquidation, dissolution or winding up of the Corporation. In the event of a reorganization, recapitalisation, stock split, stock dividend, combination of Shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the corporation of all or substantially all of its assets, or any other change in the corporate structure APR 01 '91 10133 OLWINEfCONNELLY- CHASE P.5 4 or shares of the corporation, pursuant to any of which vents the then outstanding shares of the Class A Common stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock, the preferential distributions to which the holders of shares of the Class A Common Stock shall thereafter be entitled to receive pursuant to this Section 2 shall be adjusted accordingly. Jr After payment upon any liquidation, dissolution or winding up of the Corporation to the holders of shares of the Class A Common Stock as hereinabove provided, the remaining assets of the Corporation shall be paid and/or distributed to the holders of shares of the Class A Common stock and the Class B Common Stock in proportion to the respective number of shares held by them. Neither the merger nor consolidation of the Coloration into or with any other corporation, nor the merger dr consolidation of any other corporation into or with the Corporation, nor a sale, transfer or lease or all or any part of the assets of.the Corporation, shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 2. a. Voting Rights. Except as otherwise provided herein and except aa otherwise provided by law, the holders of shares of Monvoting Class A Common Stock shall net be entitled to vote for any purpose whatsoever. Bach holder of shares of Voting Class A Common Stock shall be entitled to cast 559.794 votes in respect of each share of such stock held by him and shall be entitled to cast such votes for any and all purposes. Each bolder of shares of the class BCcwmnon stock shall be entitled to east one Vote in respect of each Share of such stock held by him. and shall be entitled to cast such vote for any and all purposes. Except as otherwise provided by law, the holders of Voting Class A Common Stock and the Class B Consort Stock shall vote together as a single class on all matters. ** *,, THIRD: The Restated certificate of Incorporation of the Corporation is hereby further amended by striking Paragraph 7 of ARTICLE V thereof in its entirety and substituting in lieu thereof the following: ** * 7. The Corporation will not issue or reissue any Class A common Stock or Class B Common stock of the Corporation or sell or otherwise transfer any Class A common Stock or Class B Common (+-k hi vman u_wirt. cowclly* CHftSET P.6 5 Stock hold by or for the account of the corporation, unless such issuance, reIssuance, sale or other transfer shall, first hare been approved by the affirmative vote of the holders of a Majority of the shares of the Class A Cannon stock.and the Class 8 Common Stock then Issued and outstanding voting together as a single class. * ** 'fourth* the above amendment to the Restated Certificate of Incorporation of the Corporation has been Ally adopted by the Board of Directors and all of the stockholders of the corporation entitled to vote thereon in accordance with the General corporation lav of the State of Delaware. IN WITNESS WHEREOF, the Corporation has oaused its corporate seal to be hereunto affixed and this Certificate of Amendment to be signed by its officers thereto duly authorized* Dated: March 29, 1991 Attest * President and Chief Executive Officer Delaware PAGES 1 The first State I, JEFFREY W. BOLLOCK, SECRETARY OF STATE OF TEE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF MAY, A.D. 1992, AT 10 O'CLOCK A.M. 0558820 8100 091013314 You may verity this certificate (mime STATE DF DELAWARE SECRETARY Of STATE DIVISION OF CORPORATIONS FILED 70:00 AH 05/27/1932 732140007 - 550020 RESTATED CERTTFICATB OF INCORPORATION OF THE DYSON-KKSNER-MORAN CORPORATION Tha undersigned, a corporation organized and axisting under and by virtue of the General Corporation Law of the State of Delaware (the "Corporation1'), does hereby certify as follows: 1. The Certificate of Incorporation of the Corporation was filed in the Office of the Secretary of State of the State of Delaware on October 28, I960 (under the name "The Dyson Company, Inc."); a Restated Certificate of Incorporation of tee Corporation was filed in the Office of the Secretary of State of the State of Delaware on June 13,1989; and an amendment to the Restated Certificate of Incorporation of the Corporation was filed in the Office of the Secretary of State of the State of Delaware on April 1,1991. 2. la the manner prescribed by 245 of the General Corporation Law of the State of Delaware, this Restated Certificate of Incorporation was duly authorized and adopted by the unanimous written consent of all of tee directors and all of tee stockholders of the Corporation. 3. The text of the Certificate of Incorporation of the Corporation, as heretofore amended, and as amended, supplemented and restated hereby, is amended and restated in its entirety as follows to read as hereinafter set forte in full: *** Mfclej The name of tee corporation (which is hereinafter referred to as tee "Corporation") is: "The Dyson-KIssner-Mrwan Corporation" Article II The registered office of tee Corporation is located at 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware. The name of its registered agent at that address is The Corporation Trust Company. AilisleJH The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ... Article XV (1) Authorized Capital Stock. (a) The total number of shares of all classes of stock which the Corporation is authorized to issue is 2,188,652 shares, consisting of; (i) 10,000 shares of Class A Voting Common Stock, par value $0.10 per share (the "Class A Voting Common Stock"); (ii) 1,500,000 shares of Class A Non*Voting Common Stock, par value $0.10 per share (the "Class A Non-Voting Common Stock"); (in) 400,000 shares of Class B Common Stock, par value $0,10 per share (the "Gass B Common Stock); and (iv) 278,652 shares of Preferred Stock, par value $0.10 per share (the "Preferred Stock"). The Class A Voting Common Stock and the Class A Non-Voting Common Stock shall hereinafter together be referred to as the "Gass A Common Stock". The Class A Common Stock and the Gass B Common Stock shall hereinafter together be referred to as the "Common Stock". (b) Except as may be expressly provided in Division A of this Article IV or in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (5) of this Article IV with respect to the Preferred Stock, the amount of the authorised capital stock of the Corporation of any class or classes may be increased or decreased by the affirmative vote of the holders of shares of the voting Common Stock of the Corporation having the right to cast a majority of the votes evidenced by such voting Common Stock. (2) Dividends. Subject to any restrictions on the payment of dividends contained in Division A of this Article IV or in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (5) of this Article IV with respect to the Preferred Stock: (a) The holders of the Class A Common Stock shall be entitled to receive, to the extent permitted by law, such dividends as may be declared from time to time by the Board of Directors of the Corporation and shall participate in any and all dividend distributions on an equal per share basis. (b) Each holder of a share of the Class B Common Stock shall be entitled to receive out of the assets of the Corporation legally available for the payment of dividends, as and when declared by the Board of Directors of the Corporation, non-cumulative cash dividends on the shares of the Class B Common Stock in the amount of $0.06 per share of the Gass B Common Stock per annum for each fiscal year of the Corporation, during the period from and including the date such share is issued (or is deemed to have been issued) and payable quarterly (i.e. $0.02 per share per quarter), in arrears, on the last day of each of January, April, July and October, to holders of record on each such date. Such dividends shall be payable prior to the payment of any dividends on the Gass A Common Stock. However, in the event that the Board of Directors shall declare any dividend on the Gass A Common Stock of less than $0.02 per share per any quarter, the dividends to which the holders of the Gass B Common Stock shall be entitled for such quarter shaD be equal to such lesser amount pei share. In addition to such fixed dividends, the holders of sham of Gass B Common Stock shall be entitled to receive participating dividends for each fiscal year in an aggregate amount per share equal to the excess over $12.00 per share of the aggregate amount of dividends declared per share on the Gass A Common Stock with respect to record dates failing within such year. Any such participating dividends shall be payable, without further action by the Board of Directors, in foe same manner (including without limitation the same record and payment dates) as the dividends on foe Gass A Common Stock giving rise to such participating dividends on the Gass B Common Stock. Except as aforesaid, no dividends stall be payable on the Gass B Common Stock. (3) liquidation. Dissolution or Winding Up. (a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders: (i) (A) Each holder of the Class A Common Stock shall be entitled to receive the "Class A Common Stock Priority Liquidation Amount" (as hereinafter defined) (and the holders of the Class A Common Stock shall participate in any and all such distributions on an equal per share basis) out of the net assets of the Corporation available for distribution to the holders of the capital stock of the Corporation, after the Corporation shall have satisfied or made provision for its debts and obligations and for the payment to the holders of shares of the Preferred Stock (other than the Preferred Stock established pursuant to Division A of this Article IV (the "Division A Preferred Stock"), except as hereinafter expressly provided with respect to the "Scries Al Priority Liquidation Amount" in respect of the Division A Preferred Stock designated as the "Series Al") any preferential rights to receive distributions of the net assets of the Corporation, and before any distributions shall be made to holders of shares of the Class 5 Common Stock or any other class of stock (including without limitation the Division A Preferred Stock, except as hereinafter expressly provided with respect to the Series Al Priority liquidation Amount in respect of ' the Division A Preferred Stock, Series Al) ranking junior to the Class A Common Stock, or the Division A Preferred Stock, Series Al, with respect to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation. (B) For purposes hereof, the "Class A Common Stock Priority Liquidation Amount" shall mean: (I) the fixed amount per share of $125 in cash, in the event of any liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders adopted or effected prior to the occurrence of a "Permanent Dividend Rate Adjustment Event" (as defined in Paragraph (2) of Division A of this Article IV); or (II) the fixed amount per share of $62^0 in cash, in the event of any liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders adopted or effected upon or after the occurrence of a Permanent Dividend Rate Adjustment Event However, the "Class A Common Stock Priority Liquidation Amount" as between the holders of the Class A Common Stock and the holders of the Class B Common Stock shah always be the fixed amount per share of $125. ' (ii) (A) Each holder of the Division A Preferred Stock, Series Al, shall be entitled to receive the "Series Al Priority Liquidation Amount" (as hereinafter defined) (and the holders of the Division A Preferred Stock, Series Al, shall participate in any and all such distributions on an equal per ah&Te basis) out of the net assets of the Corporation available for distribution to the holders of the capital stock of the Corporation, after the Corporation shall have satisfied or made provision for its debts and obligations and for the payment to the holders of shares of the Preferred Stock (other than the Division A Preferred Stock, Series A2, A3 and A4) any preferential rights to receive distributions of the net assets of the Corporation, and before any distributions shall be made to holders of shares of the Class B Common Stock or any other class of stock (including without limitation the Division A Preferred Stock, Series A2, A3 and A4) ranking junior to the Class A Common Stock and the Division A Preferred Stock, Series Al, with respect to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation. Any payment of the Series Al Priority Liquidation Amount with respect to a share of the Division A Preferred Stock, Series Al, shall be applied to reduce the Series Al liquidation Amount (as defined in Paragraph (2) of Division A of this Article IV) with respect to such share. (B) Por purposes hereof, the "Series Al Priority Liquidation Amount" shall mean: (I) the fixed amount per share of $125 in cash, in the event of any liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders adopted or effected prior to the occurrence of a Permanent Dividend Rate Adjustment Event; or (II) the fixed amount per share of $62.50 in cash, in the event of any liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders adopted or effected upon or after the occurrence of a Permanent -5- Dividend Rate Adjustment Event. (b) Distributions in respect of the Gass A Common Stock Priority Liquidation Amount or the Series A1 Priority Liquidation Amount shall be shared by the holders of the Gass A Common Stock and the Division A Preferred Stock, Series Al, pari passu. (c) After the payment of the Class A Common Stock Priority Liquidation Amount to each holder of a share of the Gass A Common Stock, and the payment of the Series Al Priority Liquidation Amount to each holder of a share of the Division A Preferred Stock, Series Al, them (i) in the event of any liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders adopted or effective prior to the occurrence of a Permanent Dividend Rate Adjustment Event, the holders of tins Gass A Common Stock and the Gass B Common Stock (subject to the last sentence of Paragraph (3)(a)(0(B) of this Article IV) and the Division A Preferred Stock shall participate in any and ail such distributions on the Gass A Common Strok, the Gass B Common Stock and the Division A Preferred Stock on an equal per share basis (adjusted for any recapitalization, stock split, stock dividend or combination of shares subsequent to the date on which the Recapitalization Agreement shall be effective); except that the distributions on each share of the Division A Preferred Stock shall not exceed the "Series A Liquidation Amount" (as defined in Paragraph (2) of Division A of this Article IV) which remains unpaid (after reduced pursuant to the last sentence of Paragraph (3)(a)(ii)(A) of this Article IV) with respect to such share of the Division A Preferred Stock; or (ii) in the event of any liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders adopted or effected on or after the occurrence of a Permanent Dividend Rate Adjustment Event, each holder of a share erf the Division A Preferred Stock shall be entitled to receive the Series A Liquidation Amount which remains unpaid (after reduced pursuant to the last sentence of Paragraph (3)(aXiO(A) of this Article IV) with respect to such share of the Division A Preferred Stock prior to any distribution to the holders of the Gass A Common Stock and the Gass B Common Stock (and the holders of the Gass A Common Stock and the Gass B Common Stock shall participate In distributions on an equal per share basis (subject to the last sentence of Paragraph (3Xa)(i)(B) of this Article IV)). (d) The merger or consolidation of the Corporation into or with any other corporation or the merger of any other corporation into the Corporation, or the lease or conveyance of all or substantially all of the property or business of the Corporation, shall not be deemed to be a dissolution, liquidation or a winding-up of the Corporation. (e) In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Gass A Common Stock, the Gass B Common Stock or the Division A Preferred Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock: (i) the fixed and participating dividends to which the holders of shares of the Gass B Common Stock shall thereafter be entitled to receive pursuant to Paragraph (2) of this Article IV shall be determined in relation to the aggregate amount of dividends per share declared on all shares originally represented by the shares of the Gass A Common Stock or the Gass B Common Stock, as the case may be, issued and outstanding immediately prior to such event; (h) the preferential distributions to which the holders of shares of the Class A Common Stock or the Division A Preferred Stock, Series Al, shall thereafter be entitled to receive pursuant to this Paragraph (3) shall be adjusted accordingly; and (iii) the limitation on distributions to which the holders of shares of the Division A Preferred Stock shall thereafter be entitled to receive pursuant to this Paragraph (3) shall be adjusted accordingly. (4) Voting. (a) Except to the extent that the holders of shares of the Preferred Stock are granted, in Division A of this Article IV or in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (5) of this Article IV with respect to the Preferred Stock, the right to vote for the election of directors or on matters requiring action by the stockholders or submitted to the stockholders for action, the holders of the Gass A Voting Common Stock and the Gass B Common Stock shall have the exclusive right to vote for (or to consent with respect to) the election of directors and, except as otherwise may be required by law, on aD other matters requiring action by the stockholders or submitted to the stockholders for actioa -7- (b) in connection with any matter submitted to the stockholders of the Corporation, each holder of record of a share of the Common Stock shall he entitled to the following number of votes for each share of the designated Common Stock owned of record by such holder: Class A Voting Common Stock: Class A Non-Voting Common Stock: Gass B Common Stock: 400 votes per share -0- votes per share, except as may otherwise be required by law 1.0 vote per share (c) Except as otherwise required by law, the holders of the Class A Voting Common Stock and the Class B Common Stock shall vote together as one class; and the holders of the Class A Non-Voting Common Stock shall not be entitled to vote for airy purpose. (5) Preferred Stock. The Preferred Stock may be issued from time to time in classes or series and shall have such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in Dhrisiop A of this Article TV or in the resolutions of the Board of Directors providing for the issuance of such stock. The holders of the Preferred Stock shall have no voting rights except as required by law or as expressed in Division A of this Article IV or in resolutions adopted by the Board of Directors of the Corporation pursuant to this Paragraph (5) of this Article IV with respect to the Preferred Stock. a. Division A of Article IV PwhawftiWi Preferences and Rights of Preferred Stock. Series Al. Series A2. Series A3 and SeriasM (1) Designation of Series. (a) Four series of Preferred Stock, par value $0.10 per share, are, pursuant to this Division A, hereby designated and hereafter known as the: Preferred Stock, par value $0.10 per Share, Series Al (hereinafter referred to as the "Series Al"); Preferred Stock, par value $0.10 per share, Series A2 (hereinafter referred to as the 'Series A2*'); Preferred Stock, par value $0.10 per share, Series A3 (hereinafter referred to as the "Series A3"); and Preferred Stock, par value $0.10 per share, Series A4 (hereinafter referred to as the "Series A4"). (b) The Series Al, the Series A2, the Series A3 and the Series A4 shall be deemed designated pursuant to the provisions of Paragraph (5) of Article IV hereof. (c) Any amendment of the terms of the Series Al, the Series A2, the Series A3 or the Series A4 shall be effective if approved by the Board of Directors of the Corporation and by the vote of the Series A as expressly provided in this Division A (and without the necessity of any vote of the other stockholders of the Corporation of any other class or series). (2) Definitions. The following terms used in this Division A shall have the meanings specified in this laaeaab (2); "Adjusted EBIT" of the Corporation shall mean, for any 12-month period ending as of the end of a fiscal quarter of the Corporation, the consolidated net income (determined in accordance with generally accepted accounting principles) of the Corporation and its Consolidated Subsidiaries before interest and taxes, reduced by any income recognized in respect of dividends or interest payable to the Corporation and its Consolidated Subsidiaries which has not been paid in cash, and reduced by any gains, and increased by any losses, on the disposition of assets. `'Affiliate" shall mean, as to any Person, airy other Person which, directly or indirectly, controls, or is under common control with, or is controlled by, such Person and, if such Person is an individual, any member of the family (including parents, spouse, children and grandchildren) of such individual and any trust whose principal beneficiary is such individual or one or more members of such family and any Person who is controlled by any such member or trust. As used in this definition, "control" (including, with its correlative meanings, "controlled bv" and "under common control with") shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies of a Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise); and any Person which owns directly or indirectly 10% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation or 10% or more of a partnership or other ownership interest of any other Person will be deemed to control such corporation or other Person. .When used with respect to the Corporation, "Affiliate" shall also include the following: (i) any direct or indirect Subsidiary of the Corporation or of any other Affiliate of the Corporation; (ii) Patterson Planning & Services, Inc., a Delaware corporation; (iii) DKM-MLP, or any general partner of DKM-MLP; (iv) MultiServ, WM Financial Corporation (a Delaware corporation), Janus Industries, hie. (a Delaware corporation), and Core Mark International, Inc. (a Delaware corporation); and (v) any partnership of which any of the foregoing or any other Affiliate is a general partner, or is the holder of any interest in such partnership entitling the holder thereof to 10% or more of the profits and losses of the partnership or which represents 10% or more of the contributed capital or the capital contribution requirements of the partnership. "Bankruptcy Code" shall mean the United States Bankruptcy Code of 1978, as amended (as now or hereafter in effect). "Business Dav" shall mean any day on which commercial banks are not authorized or required to close in the City of New York. '^Change in Control" with respect to the Corporation shall mean that, and shall be deemed to have occurred if, the Dyson Croup (other than The Dyson Foundation) shall have sold, transferred or otherwise disposed of shares of die capital stock of the Corporation (or interests in the Voting Trust), other than to "Permitted Transferees" (as hereinafter defined), such that the Dyson Group (other than The Dyson Foundation) and such Permitted Transferees shall cease to beneficially own at least 50% of the shares of each class of capital stock (adjusted for any recapitalization, stock split, stock dividend or combination of shares subsequent to the date on which the Recapitalization Agreement shall be effective, and less any shares (or interests -10- under the Voting Trust with respect to such shares) of the capital stock of the Corporation transferred to The Dyson Foundation (or to the Voting Trust for the benefit of The Dyson Foundation) by Charles H. Dyson (or his estate), the Charles H. Dyson Marital Trust (established under the Inst Will and Testament of Margaret M. Dyson) or the Estate of Margaret M. Dyson) beneficially owned by the Dyson Group (other than The Dyson Foundation) as of the effectiveness of the Recapitalization Agreement For purposes hereof, "Permitted Transferees" shall mean and inchide: other members of the Dyson Group (other than The Dyson Foundation); and the estates and lineal descendants of members of the Dyson Group (other than The Dyson Foundation) or other members of their families, or to trusts established for the benefit of members of the Dyson Group (other than The Dyson Foundation) or their lineal descendants or family members. "Consolidated Subsidiary" shall mean those Subsidiaries whose accounts are consolidated with fee accounts of fee Corporation in accordance wife the Corporation's policy of consolidation in effect from time to time and generally accepted accounting principles and shall exclude the following Subsidiaries: DKM Properties Corp., DKM Resources, Inc. or Leader National Insurance Corporation or any of their Subsidiaries, "D&bt-to-Bquitv Ratio11 when used with respect to fee Corporation shall mean, as of fee end of any fiscal quarter, the ratio determined by dividing the aggregate Indebtedness of the Corporation and Its Consolidated Subsidiaries by the consolidated net worth of the Corporation (including the greater of the stated value or redemption or liquidation value of Preferred Stock, including the Series A). Any determination of a Debt-to-Equity Ratio for any fiscal quarter shall be based on the regularly prepared consolidated financial statements of the Corporation for such fiscal quarter. "Default Dividend Rate" when used with respect to the determination of dividends on the Series A shares shall mean fee Regular Dividend Rate plus two percentage points. Dispose" or "Disposition11 in connection with any shares of fee capital stock of the Corporation shall mean a sale, assignment, gift, pledge, mortgage, hypothecation or other transfer of, fee imposition of any lien or encumbrance on or the grant of any interest therein, whether occurring voluntarily or involuntarily, directly or indirectly, or by operation of law or otherwise. -li- "Dividend Commencement Date": (a) with respect to any share of the Series A1 or the Series A2, shafl mean May 1, 1992; and (b) with respect to any share of the Series A3 or the Series A4, shall mean February 1,1993. "Dividend Payment Date" shall mean the last day of each January, April, July and October (or tbe next following Business Day if sued) day is not a Business Day) in each year; the first such Dividend Payment Date with respect to any share of the Series A to be the first such date following the Dividend Commencement Date of such share. "PKM-MLP" shall mean DKM-MLP Limited Partnership, a Delaware limited partnership, or any Person succeeding to substantially aB of the businesses and assets of DKM-MLP Limited Partnership. "Dvson Group" shall mean and include Charles H. Dyson, the Estate of Margaret M. Dyson, the Charles H. Dyson Marital Trust (established under the Last Will and Testament of Margaret M. Dyson), Robert R. Dyson, Anne E. Dyson, the Robert R. Dyson 1987 Family Trust, the Anne E. Dyson 1987 Family Trust and The Dyson Foundation. "EinandntLAgreement* shall mean any credit or loan agreement, trust indenture, security agreement, mortgage, note or oiler agreement, document or instrument, or under the terms of any Preferred Stock or other equity or debt security of the Corporation or any of its Subsidiaries or other agreement, document or instrument setting forth rights of the holders of such Preferred Stock or other equity or debt security, entered into by the Corporation or any of its Subsidiaries, with any Person (including any public offering) providing financing, credit or equity to the Corporation or any of its Subsidiaries, provided that the foregoing is either, (i) the eight bank credit agreements to which the Corporation is a party as of May 26,1992; or (ii) entered into, or issued, by the Corporation or any of its Subsidiaries in connection with any refinancing, restructuring, replacement^ refunding or extension of any Financing Agreement to which reference is made in the preceding clause (i) or any further refinancing, restructuring, replacement, refunding or extension of any Financing Agreement to which reference is made in this clause (ii). -12- "Indebtedness" of the Corporation shall mean: (a) indebtedness created, issued or incurred by the Corporation or its Consolidated Subsidiaries for borrowed money (whether by loan or the issuance and sale of debt securities); and indebtedness of the Corporation or its Consolidated Subsidiaries secured by any lien, security interest, pledge, encumbrance, mortgage or other charge on property or assets of the Corporation or its Consolidated Subsidiaries, whether or not the respective Indebtedness so secured has been assumed by the Corporation or its Consolidated Subsidiaries; (b) obligations of the Corporation or its Consolidated Subsidiaries to pay the deferred purchase price or acquisition price of property or services; and (c) aggregate obligations of the Corporation or its Consolidated Subsidiaries under any lease classified and accounted for as a capital lease. "Insolvency Event" with respect to the Corporation shall mean that, and shall have occurred if; (a) the Corporation shah: (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of ail or a substantia] part of its property; (2) make a general assignment for the benefit of its creditors; (3) commence a voluntary case under the Bankruptcy Code; (4) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts; (5) foil to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Bankruptcy Code; or (6) take any corporate action for the purpose of effecting any of the foregoing; (b) a proceeding or case shall be commenced, without the application or consent of the Corporation, in any court of competent jurisdiction, seeking: (1) its liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts; (2) the appointment of a trustee, receiver, custodian, liquidator or file like of the Corporation of all or any substantial part of its assets; or (3) similar relief in respect of the Corporation under any Jaw relating to bankruptcy, insolvency, reorganisation, winding-up, or composition or adjustment of debts, and such proceeding or case shall continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period of sixty (60) or more days; or -13- (c) an order for relief against the Corporation shall be entered in an involuntary case under the Bankruptcy Code. "Interest Coverage Ratio** when used with respect to the Corporation shall mean, as of the end of any fiscal quarter of the Corporation, the ratio of Adjusted EBIT for the 12-month period ending as of the end of such fiscal quarter to Interest Expense for the same period. Any determination of a Interest Coverage Ratio shall be based on the regularly prepared consolidated financial statements of the Corporation for such 12-month period. "Interest Expense" of the Corporation shall mean, for any 12-month period ending as of the end of a fiscal quarter of the Corporation, the sum of the following: (a) all Interest in respect of Indebtedness accrued or capitalized by the Corporation or its Consolidated Subsidiaries (whether or not actually paid); (b) the net amounts payable by the Corporation or its Consolidated Subsidiaries under any interest rate swap, cap or collar agreement or arrangement with any financial institution providing for the transfer or mitigation of interest risks either generally or under specific contingencies; (c) commitment fees, letter of credit fees and bonding foes and expenses payable by the Corporation or its Consolidated Subsidiaries; and (d) any dividends paid, declared, cumulated or accrued on Preferred Stock (other than the Series A) of the Corporation or its Consolidated Subsidiaries. "Junior Securities" shall mean shares of tbe Class A Common Stock and the Class B Common Stock issued pursuant to the Recapitalization Agreement, together with any shares of capital stock or securities of the Corporation issued from time to time in respect of such Junior Securities, whether by dividend or stock split or otherwise in exchange or substitution therefor. "MultiServ" shall mean MultiServ International, N.V., a corporation organized under the iaws of Hie Netherlands, and any Person succeeding to substantially all of the businesses and assets of MultiServ international, N.V. "OrianaLHolder*1 shall mean John A. Moran, Ernest H. Lorcb and C Richard Owens. "Permanent Dividend Rate Adjustment Event'' shall mean, and shall be deemed to have occurred upon the earlier of, the following: (a) the satisfaction of the Ratio Targets as of the end of four consecutive fiscal quarters of the Corporation (without interruption as to any fiscal quarter as of the end of which the Ratio Targets are not satisfied); (b) DKM-MLP shall have repaid to the Gass D Partner (as defined in the partnership agreement governing DKM-MLP) in foil (in cash, unless otherwise agreed by the Gass D Partner) the entire capital account of the Gass D Partner, together with all accretions and accrued profits allocable thereto; and MnltiServ shall have repaid in foil (in cash, unless otherwise agreed by the Corporation) all outstanding indebtedness of MultiScrv to the Corporation and its Affiliates (other than the Dyson Group, DKM-MLP and any general partner of DKM-MLP which is not the Corporation or any Subsidiary of the Corporation) and their assigns and shall have redeemed (in cash, unless otherwise agreed by the Corporation) all shares of preferred stock and other equity securities of MultiServ owned by the Corporation and its Affiliates (other than the Dyson Group, DKM-MLP and any general partner of DKMMLP which is not foe Corporation or any Subsidiary of the Corporation) and their assigns; (c) MuhiServ shall have repaid in full (in cash, unless otherwise agreed by the Corporation) ail outstanding indebtedness of MultiServ to the Corporation and its Affiliates (other than the Dyson Group, DKM-MLP and any general partner of DKM-MLP which is not the Corporation or any Subsidiary of the Corporation) and their assigns and shall have redeemed (in cash, unless otherwise agreed by the Corporation) all shares of preferred stock and other equity securities of MultiServ owned by the Corporation and its Affiliates (other than the Dyson Group, DKM-MLP and any general partner of DKMMLP which is not the Corporation or any Subsidiary of the Corporation) and their assigns; and MultiServ shall have been completely sold and an amount equal to the after-tax proceeds of such sale shall have been used by MultiServ or DKM-MLP to repay to the Gass D Partner the capital account of the Gass D Partner, together with all accretions and accrued profits allocable thereto, to the extent of such amount; or (d) February 1,1996; -15- ''Permitted Series A Restrictions1' shall mean such terms and conditions, contained in any Financing Agreement, which directly or indirectly restrict the ability of the Corporation to pay dividends on, or to redeem, shares of the Series A, or under which terms and conditions, or as a consequence of which terms and conditions, the payment of dividends on, or the redemption of, shares of the Series A is prohibited or would constitute a violation thereof a conflict therewith or a default thereunder, but only to the extent that: (a) such terms and provisions are contained in any of the eight bank credit agreements to which the Corporation is a party as of May 26,1992; (b) such terms and provisions are contained in any Financing Agreement which is entered into, or issued, by the Corporation or any of its Subsidiaries in connection with any refinancing, restructuring, replacement, refunding or extension of any Financing Agreement to which reference is made in the preceding clause (a); or (c) such terms and provisions are contained in any other Financing Agreement entered into, or issued, by the Corporation or any of its Subsidiaries, provided that such terms and provisions are no more restrictive than the terms and provisions to which reference is made in the preceding clauses (a) or (b), unless otherwise expressly approved for purposes of this clause (c) by any director serving pursuant to Paragraph (8) of this Pfflstofl A, or by a majority vote of the holders of the then outstanding Series A shares acting together as a class. "Person" shall mean any individual, corporation, company, voluntary association, partnership, joint venture, trust, unincorporated organization or government (or any agency, instrumentality or political subdivision thereof), "Ratio Targets" shall mean that: (a) the Debt-to-Equity Ratio of the Corporation, as of the end of a fiscal quarter of the Corporation, is not greater than 0.5; and (b) the Interest Coverage Ratio of the Corporation, as of the end of a fiscal quarter of the Corporation, is at least 2-to-l. "Recapitalization Agreement" shall mean the Agreement dated as of May 26,1992 among: (i) the Corporation; (ii) the stockholders, as of May 26, 1992, of the Corporation and the holders of Voting Trust Certificates under the Voting Trust Agreement dated as of August 1,1979, as amended, among the Corporation, the -16- Voting Trustees thereunder and persons who have contributed to the Voting Trust shares of the capital stock of the Corporation; and (iii) the Voting Trustees under such Voting Trust Agreement. Ail shares of the capital stock of the Corporation proposed to be issued pursuant to the Recapitalization Agreement shall be deemed to have issued as of the date on which the Recapitalization Agreement shall be effective. 'Regular Dividend Rate" when used with respect to the determination of dividends on the Series A shares shall mean the rate of 3.0% per annum of the applicable Series A Redemption Price initially and until the occurrence of a Temporary Dividend Rate Adjustment Event or a Permanent Dividend Rate Adjustment Event, at which time the Regular Dividend Rate shall thereafter be (temporarily or permanently, as the case may be) the rate of 7.5% per annum of the applicable Series A Redemption Price. In the event of a Temporary Dividend Rate Adjustment, the Regular Dividend Rate for the fiscal quarter of the Corporation Mowing die fiscal quarter as of the end of which a Temporary Dividend Rate Adjustment Event has occurred shall be 7.5% per annum of the applicable Serial A Redemption Price for (and solely for) such fiscal quarter. "Scheduled Redemption" shall mean any redemption of shares of the Series A made, or required to made (subject to any right of the Corporation to defer such redemption, as herein provided), as of any Scheduled Redemption Date. "Scheduled Redemption Date" with respect to any share of the Series A shall mean the last day of each of May and October 1997 and April and October 1998,1999 and 2000 (or the next following Business Day if such day is not a Business Day). "Series A" shall mean the Series Al, the Series A2, the Series A3 and the Series A4, collectively. "Series Al" shall have the meaning given such term in Paragraph (l)(a) of this Divisipn A. "Series AT shall have the meaning given such term in Paragraph (l)(a) of this Division A. "SeriesA3" shall have the meaning given such term in Paragraph (lXa) of this Division A. "Series A4W shall have the meaning given such term in Paragraph (l)(a) of this Division A. -17- "Scries A liquidation Amount11 shall mean the Series Al Liquidation Amount, the Series A2 Liquidation Amount, the Series A3 Liquidation Amount and the Series A4 Liquidation Amount "Series Al liquidation Amount" shall mean initially $372.00 per share of the Series Al, together with any accumulated and unpaid dividends thereon, in cash. "Series A2 liquidation Amount" shall mean initially $268.00 per share of rite Series A2, together with any accumulated and unpaid dividends thereon, in cash. "Series A3 Liquidation Amount" shall mean initially $253.75 per share of the Series A3, together with any accumulated and unpaid dividends thereon, in cash. "Series A4 Liquidation Amount* shall mean initially $246.33 per share of the Series A4, together with any accumulated and unpaid dividends thereon, in cash. "Series A Redemption Price" shall mean the Series Al Redemption Price, the Series A2 Redemption Price, the Series A3 Redemption Price and the Series A4 Redemption Price. "Series Al Redemption Price" shall mean $372.00 per share of the Series Al, in cash. "Series A2 Redemption Price" shall mean $268.00 per share of the Series A2, in cash. "Series A3 Redemption Price" shall mean $253.75 per share of the Series A3, in cash. "Series A4 Redemption Price" shall mean $246.33 per share of the Series A4, in cash. "Subsidiary" shall mean, with respect to any Person, any other Person of which at least a majority of the outstanding shares of stock or other ownership interests having by the terms thereof ordinary voting power to elect a majority of rite board of directors or other similar management body of such other Person (irrespective of whether or not at the time stock or other ownership interests of any other class or classes of such other Person shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such first Person or one or more of the Subsidiaries of such first Person. 'Temporary Dividend Rate Adjustment Event" shall mean, and shall be deemed to have occurred upon, the satisfaction of the Ratio Targets as of the end of any fiscal quarter of the Corporation. -18- "Voting Trust" shall mean voting trust established under the Voting Trust Agreement dated as of August 1,1979, as amended, among the Corporation, the Voting Trustees thereunder and persons who have contributed to the Voting Trust shares of the capital stock of the Corporation. (3) Number of Shares: Reservation of Shares: Fractional Certificates. (a) The number of shares in the Series A shah be as follows: Series Al: Series A2: Series A3: Series A4: 70,000 115,383 70,192 23,077 Shares of the Series A redeemed, purchased or otherwise acquired by the Corporation shall be canceled and shall revert to authorized but unissued Preferred Stock, par value $0,10 per share, undesignated as to series and subject to reissuance by the Corporation as shares of tbe Preferred Stock, par value $0.10 per share, of any one or more series (other than the Series A). (b) (i) The Series Al and the Series A2 shall be issuable originally solely to John A. Moran. (ii) The Series A3 shall be issuable originally solely to Ernest H. Larch. (iii) The Series A4 shall be issuable originally solely to C. Richard Owens. (c) The Corporation shall be authorized to issue certificates for fractional shares of tbe Series A (4) Dividends. (a) Each holder of a share of the Series A shall be entitled to receive out of the assets of the Corporation legally available for the payment of dividends, as and when declared by rite Board of Directors of the Corporation, cash dividends on the shares of the Series A at tbe Regular Dividend Rate applicable thereto, and no more, from and after the Dividend Commencement Date of such share ami payable, in arrears (calcu lated on the basis of the actual number of days in the calendar year), on each Dividend Payment Date to holders of record on the 5th day preceding the Dividend Payment Date. Dividends shall cumulate (until paid) on a daily basis and whether or not declared. There shall be no compounding of dividends based on any dividends that shall accumulate from time to time (whether at the Regular Dividend Rate or the -19- Default Dividend Rate). (b) Dividends on shares of the Series A shall cumulate at the applicable Default Dividend Rate (in lieu of the Regular Dividend Rate) under the following drcumstances: (i) so long as all of the following would be the case: dividends on the Series A have accumulated and remain unpaid in an aggregate amount equal to the dividends payable on the then outstanding Series A shares for one Dividend Payment Date; and the failure of the Corporation to declare or pay such dividends is not due to the applicability of any Permitted Series A Restriction; and (ii) to the extent provided in Paragraph (5) of this Division A (c) All holders of shares of the Series Al, the Series A2, the Series A3 or the Series A4 shall be entitled to receive an equal amount per share of any dividends paid on the shares of such particular series. If at any time the Corporation shall pay less than the total amount of dividends then payable on the shares of the Series Al, the Series A2, the Series A3 or the Series A4, the aggregate payment to all holders of shares of the Series Al, the Series A2, the Series A3 and the Series A4 shall be distributed as between the Series Al, the Series A2, the Series A3 and the Series A4 by multiplying the total amount of dividends actually to be paid by a fraction, the numerator of which shah be the aggregate dividends otherwise payable on such Dividend Payment Date on the Series Al, the Series A2, the Series A3 or the Series A4, as the case may be, and the denominator of which shall be the aggregate dividends otherwise payable on such Dividend Payment Date on the Series A. (5) Redemption jf forte A Shares. (a) The Corporation may, from time to time in whole or in pan, voluntarily redeem shares of the Series A at a price equal to the Series A Redemption Price applicable thereto. Shares of the Series Al, the Series A2, the Series A3 and the Series A4 redeemed pursuant to this Paragraph (5)(a) may be credited by the Corporation (in such order as the Corporation shall elect) against any shares of the Series Al, the Series A2, the Series A3 and the Series A4, as the case may be, required to be redeemed pursuant to Paraeomh (5)(b) of this Division A (b) Except as hereinafter provided, on each Scheduled Redemption Date the Corporation shall redeem such number of shares of the Series Al, the Series A2, the Series A3 and the Series A4 as shall equal the aggregate number of shares of such Series A then outstanding divided by the number of Scheduled Redemption Dates remaining (including the then current Scheduled Redemption Date) (i.e, on the Scheduled *20- Redemption Date at the end of May 1997, one-eighth (l/8th) of the shares then outstanding), at a price equal to the applicable Series A Redemption Price. (c) In the event that the Corporation shah be in default in effecting any Scheduled Redemption, within 60 days after such Scheduled Redemption Elate unless waived (whether before or after) by the holders of then outstanding Series A shares (each of Series Al, A2, A3 and A4 consenting separately as a class as to any Scheduled Redemption as to such series) having the right to cast a majority of the votes evidenced by the particular Series A then outstanding, or cured within such 60 day period, the Corporation shall immediately (upon the expiration of such 60-day period) redeem all shares of the Series A, at their applicable Series A Redemption Prices. During such 60-day period (until and unless cured during such 60-day period), dividends shall cumulate on the shares as to which the default exists with respect to their redemption in accordance with such Scheduled Redemption at the Default Dividend Rate; and unless such default is cured within such 60-day period, dividends on all of the Series A shares shall cumulate thereafter at the Default Dividend Rate until the shares are redeemed. (d) In the event that: (i) the Corporation shall be in default in the performance of any of the covenants set forth in Paragraph (9)(a) of this Division A (unless cured within 60 days of the occurrence of such default); or (ii) an Insolvency Event shall have occurred; unless waived (whether before or after) by the holders of then outstanding Series A shares having the right to cast a majority of die votes evidenced by the Series A then outstanding, the Corporation shall immediately (upon the expiration of such 60-day period if applicable) redeem all shares of the Series A, at their applicable Series A Redemption Prices. Unless such default is waived as aforesaid or cured within any such applicable 60-day period, dividends cm all of the Series A shares shah cumulate after the expiration of such 60-day period (or from and after the occurrence of any voluntary Insolvency Event) at the Default Dividend Rate until the shares are redeemed. (e) In the event of the death of an Original Holder, the Corporation shall, upon the request of the estate of such Original Holder, redeem shares of the Series A held of record by hira -sufficient to enable the estate of such Original Holder to pay any incremental Federal and state estate tax payable in respect of the inclusion in die estate of the shares of the Series A owned of record by such Original Holder. In the event of any dispute between the estate of such Original Holder and the Corporation .21- * as to the amount of such incremental Federal and state estate tax payable, such dispute shall be referred to the regular independent accountants of the Corporation, and the determination of such dispute by such accountants shall be final and binding upon the estate of such Original Holder and the Corporation. (f) In the event of a Change in Control, unless waived (whether before or after) in writing by the holders of then outstanding Series A shares having the right to cast a majority of the votes evidenced by the Series A then outstanding (acting together as a class), foe Corporation shall immediately redeem all shares of the Series A, at their applicable Series A Redemption Prices. (g) AU redemptions of shares of the Series A shall be accompanied by foe payment of all accumulated and unpaid dividends thereon, whether or not declared, in cash. (h) (i) . The Corporation shall mail (first class to the address for foe holder given by such holder to the Corporation prior to such mailing), at least 30 days (but not more than 60 days) prior to any date on which shares of foe Series A are to be redeemed, to each holder of a share of the Series A notice of any redemption of shares of foe Series A, with instructions to tender to foe Corporation within such 30-day period foe shares to be redeemed. Such notice shall state the number of shares to be redeemed and the date on which such redemption is to be effected (subject to the receipt of the certificates for such shares, as hereinafter provided). Upon foe receipt by foe Corporation of such shares (duly endorsed for transfer to the Corporation), the Corporation shall mail (by registered marl) to the holder of such shares foe amount payable in respect of such shares, together with a new certificate for any shares represented by the certificates tendered which are not redeemed. The Corporation shall not be in default in the making of any redemption of shares of foe Series A if foe holder of any share of the Series A shall foil to duly tender the certificates therefor prior to the date on which any redemption of such share is required to be made; provided that, upon foe subsequent receipt of such certificates duly tendered, the Corporation shall promptly effect the redemption. (ii) In the event that certificates evidencing shares of the Series A are lost, stolen or destroyed, the Corporation shall issue replacement certificates therefor upon the request of the record holder thereof provided that the holder furnishes to the Corporation such affidavits and indemnities, including any bond, as foe Corporation shall request. O) Upon any redemption of shares of foe Series A, each holder of shares of the Series A shall be entitled to have redeemed such number of shares of the Series A owned of record by such holder which represents such aggregate Series A Redemption Price as -22- shall be determined by multiplying the aggregate Series A Redemption Price for the shares of the Series A proposed to be redeemed by a fraction, the numerator of which shall be the aggregate Series A Redemption Price of the shares of the Series A owned of record by such holder, and the denominator of which shal] be the aggregate Series A Redemption Price of the number of the then outstanding Series A shares prior to giving effect to such redemption. 0) Any obligation of the Corporation to redeem or purchase shares of the Series A (whether pursuant to any Scheduled Redemption, by acceleration or otherwise; other than acceleration upon a Change in Control or upon a default in the performance of any of the covenants set forth in Paragraph (9)(a) of this Division A (unless cured within 60 days of the occurrence of such default)) may be deferred by the Corporation and allocated equally to subsequent Scheduled Redemption Dates (if any) of such Series A if, and to the extent that: (i) the failure of the Corporation to redeem or purchase is due to the applicability of any Permitted Series A Restriction; however, the Corporation's redemption or purchase obligation shall be satisfied by the Corporation no later than the earlier of: (A) the 90th day following the date that any such Permitted Series A Restriction is no longer applicable to prevent the payment of such amount; or (B) the last day of October 2000; or (ii) if foe redemption or purchase is then prohibited under the General Corporation Law of the State of Delaware; however, the Corporation's redemption or purchase obligation shall be satisfied by the Corporation no later than the earlier of: (A) the 90th day following the date tbat any such prohibition is no longer applicable to prevent the payment of such amount, or (B) the last day of October 2000. In the event of any such deferral, dividends on such deferred Series A Redemption Price shall cumulate at the Regular Dividend Rates applicable thereto (and not the Default Dividend Rates, unless there shall be a subsequent default in effecting such deferred Scheduled Redemption) so long as such deferral is in effect. Any deferral in accordance with this Paragraph (5)0) shall not constitute a default by foe Corporation. -23- (6) Application of Payments, Any an<3 all payments to the holders of shares of the Series A in respect thereof (regardless of whether the Corporation shall have designated such payments as the payment of dividends or as the payment of any Series A Redemption Price) shall be applied as follows: first, to the payment of all dividends that have accumulated and remain unpaid; and second, to the payment of the Series A Redemption Price of such shares. C7) yotise^ights. (a) Except as to matters as to which the holders of shares of the Series A are entitled, by the terms of this Division A or by law, to vote or consent separately as a class, the holders of the Series A shall not be entitled to vote on any matter submitted to the holders of shares of the capita] stock of the Corporation for their approval or consideration. (b) In connection with any matter submitted to the holders of the Series A shares for their consideration or approval, each holder of record of a share of the Series A shall be entitled to the following number of votes for each such share: Series Al: Series A2: Series A3: Series A4: 2.0 votes per share 1,0 vote per share 1,0 vote per share 1.0 vote per share (c) No amendment of the Certificate of Incorporation of the Corporation, as amended or restated from time to time, which would increase the number of authorized or outstanding shares of the Series A, amend any provision of this Division A, or which would adversely affect the rights or preferences of the Series A or the holders thereof, shah be effected without the prior approval of the holders of then outstanding Series A shares (having the right to cast a majority of the votes evidenced by the shares of the Series A then outstanding) voting separately as a class; however, no such amendment (and no waiver of any term of a particular Series A) which would modify the Scries A Redemption Price with respect to a particular Series A, the rate at which dividends on a particular Series A accumulate, or when redemptions of the Series A or dividends thereon axe required to be made with respect to a particular Series A, shall be effected without the prior approval of the holders of each then outstanding series of Series A shares so affected (having the right to cast a majority of tile votes evidenced by the shares of such series then outstanding) voting separately as a class. -24* (8) Birectors. (a) So long as any shares of die Series A shall be outstanding, John A Moran shall be permitted to be a director of the Corporation. However, such directorship is personal to Mr, Moran. (b) hi the event of the death of Mr. Moran or if Mr. Moran shall decline to serve as a director, and so long as shares of the Series A shall be outstanding, Ernest H. Lorcb shall be permitted to be a director of the Corporation (provided that shares of the Series A3 shall be outstanding), and upon the death of Mr. Lorcb or if Mr. Lorch shall decline to serve as a director (ami so long as any shares of the Series A shall be outstanding), C. Richard Owens shall be permitted to be a director of the Corporation (provided that shares of the Series A4 shall be outstanding). Such right of Messrs. Lorch or Owens to be a director is personal to them. (c) In the event that Messrs. Moran, Lorch and Owens shall either die or shall decline to serve as a director, or if Mr. Moran shall decline to serve as a director and Messrs. Lorch and Owens shall not be entitled to serve as directors because no shares of the Series A3 or Series A4 are outstanding, and so long as any shares of the Series A shall be outstanding, the holders of the shares of the Series A, voting together as one class, shall be entitled to elect one director of the Corporation; however, the identity of such director shall be subject to the prior approval of the Board of Directors of die Corporation (which approval shall not be unreasonably withheld). (d) In the event that Mr. Moran shall be unable (other than because of his death or his resignation) to attend meetings of the Board of Directors of the Corporation, Mr. Lorch (provided that shares of die Series A3 shall be outstanding) or Mr. Owens (provided that shares of the Series A4 shall be outstanding) shall be permitted to attend any such meeting as an observer provided that Mr. Moran has advised the corporate Secretary of the Corporation that Mr. Lorch or Mr. Owens will be attending as an observer. (e) No director appointed or elected pursuant to this Paragraph (8) shall be removed from office except any director elected pursuant to Paragraph (8)(c) of this Division A may be removed from office by a vote of the holders of the Series A shares then outstanding having the right to cast a majority of the votes evidenced by the Series A then outstanding. -25- (9) Covenants. (a) So long as any shares of the Series A shall be outstanding, and without the prior written consent or approval of either the director appointed pursuant to Paragraph (8) hereof or the holders of then outstanding Series A shares having the right to cast a majority of the votes evidenced by the Series A outstanding (consenting or 'rating together as a class), the following covenants shall be applicable to the Corporation: (i) So long as any dividends on the shares of the Scries A shall have accumulated and remain unpaid as of any Dividend Payment Date, or so long as the Corporation shall not have made any Scheduled Redemption then due (without regard to any right of the Corporation to defer such Scheduled Redemption) or be in default in the redemption of any shares of the Series A, no dividends or other distributions (other than dividends or distributions payable exclusively in capital stock of the Corporation winch ranks junior to the Series A upon any liquidation, dissolution or winding up of the Corporation or dividends or distributions in the form of a stock split provided that any amount payable upon any liquidation, dissolution or winding up of the Corporation on the shares split is appropriately adjusted), whether in cash or property, shall be paid or declared on any Junior Security. (ii) (A) So long as any shares of the Series A shall be outstanding, and subject to Paragraph (9)(aXi) of this Division A, no dividends or other distributions (other than dividends payable exclusively in capital stock of the Corporation which ranks junior to the Series A upon any liquidation, dissolution or winding up of the Corporation or dividends or distributions in the form of a stock split provided that any amount payable upon any liquidation, dissolution or winding up of the Corporation on the shares split is appropriately adjusted), whether in cash or property, shall be paid or declared on Junior Securities in an aggregate amount in excess of $603,441 in cash per fiscal quarter; however, the Corporation may pay cash dividends on shares of Junior Securities in excess of such amount provided that the Series A receives an aggregate amount (in excess of the regular dividends that would otherwise be payable on such shares of the Series A at the Regular Dividend Rate of 3% per annum) equal to such excess dividends paid to the holders of Junior Securities, but the total of all dividends paid during any fiscal quarter to holders of the Series A shall not exceed the amount of dividends that would otherwise have been payable during such fiscal quarter at a Regular Dividend Rate of 7.5% per annum (unless the Default Dividend Rate of 9.5% is then applicable, then at the rate of 9.5% per annum); but cash dividends on Junior Securities in -26- excess of such amount paid on the Series A may be paid only in accordance with Paragraph (9)(a)(ii)(B) of this Division A (B) Subject to Paragraph (9)(a)(i) of this Division A there shall be no restriction on the amount of cash dividends payable on Junior Securities so long as: (I) dividends on the Series A for such fiscal quarter have been paid to the holders of the Series A at the Regular Dividend Rate of 7.5% per annum (unless the Default Dividend Rate of 9.5% is then applicable, then at the rate of 95% per annum) and the Corporation is not then deferring the redemption of shares of the Series A because of a prohibition on such redemption under the Genera] Corporation Law of the State of Delaware; and (II) after the payment of such dividends on the Series A and the Junior Securities, the dollar amount of any pool or similar reserve that would be available under the terms of any Permitted Series A Restriction, or the General Corporation Law of the State of Delaware, for the payment of dividends, and the payment of the Series A Redemption Price (together with accumulated and unpaid dividends) in respect of any Scheduled Redemptions (excluding any right of the Corporation to defer such Scheduled Redemptions), to be paid during the 12-month period Mowing the fiscal quarter in which such dividends on Junior Securities are proposed to be paid or declared will be adequate to permit the payment of such Series A dividends and to effect such Scheduled Redemptions; provided, however, that cash dividends shall not be paid on Junior Securities to the extent that the payment of such cash dividends would reduce the then consolidated stockholders equity (including any Preferred Stock, including the Series A) of the Corporation to an amount less than the then aggregate Series A Liquidation Amount. (iii) So long as any shares of the Series A shall be outstanding, the Corporation shall not redeem, retire, purchase or otherwise acquire for value (or become obligated as to any of the foregoing) any Junior Security, and the Corporation shall not set apart money for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of any Junior Security. However, the foregoing shall not apply to any redemption, retirement or purchase of: -27- (A) Junior Securities pursuant to obligations existing as of May 26,1992 with respect to the redemption of Junior Securities from the estates of Charles R Dyson and Margaret M. Dyson to cover expense of the estates and taxes (but limited to $1.5 million for each estate); (B) Junior Securities; (I) owned of record or beneficial^ (including held by the Voting Trust) by the Estate of Charles R Dyson subsequent to the death of Charles H. Dyson (or any trust established pursuant to the Last Will and Testament of Charles R Dyson); (II) owned of record or beneficially (including held by the Voting Trust) by (or proposed to be issued pursuant to the Recapitalization Agreement to the Voting Trust beneficially for, or proposed to be issued of record to) the Estate of Margaret M. Dyson; or (HI) proposed to be issued pursuant to the Recapitalization Agreement to The Dyson Foundation (or to the Voting Trust for the benefit of The Dyson Foundation), or transferred to The Dyson Foundation by Charles R Dyson (or his estate), the Charles R Dyson Marita! Trust (established under the Last Will and Testament of Margaret M. Dyson) or the Estate of Margaret M. Dyson (whether represented by Junior Securities or Voting Trust Certificates with respect thereto); for an aggregate price not to exceed $50 million; provided that after the purchase of such Junior Securities, the dollar amount of any pool or similar reserve that would be available uniter the terms of any Permitted Series A Restriction, or the General Corporation Law of the State of Delaware, for the payment of dividends, and the payment of the Series A Redemption Price (together with accumulated and unpaid dividends) in respect of any Scheduled Redemptions (excluding any right of the Corporation to defer such Scheduled Redemptions), to be paid during the 12-month period following the fiscal quarter in which such purchase of Junior Securities are proposed to be effected will be adequate to permit the payment of such Series A dividends and to effect such Scheduled Redemptions; -28- (C) Junior Securities held of record by the estates of Robert R. Dyson or Anne E. Dyson (or by the Voting Trust for their benefit) to enable the estates of them to pay any incremental Federal and state estate taxes payable in respect of the inclusion in the estates of the Junior Securities owned of record by them (or by the Voting Trust for their benefit); or (D) other Junior Securities provided that shares of the Series A having an aggregate Series A Redemption Price equal to the aggregate price paid by the Corporation for such additional Junior Securities are redeemed simultaneously with the redemption or purchase of the additional Junior Securities; provided that after the purchase of such Junior Securities and shares of the Series A, the dollar amount of any pool or similar reserve that would be available under the terms of any Permitted Series A Restriction, or the General Corporation Law of the State of Delaware, for the payment of dividends, and the payment of the Series A Redemption Price (together with accumulated and unpaid dividends) in respect of any Scheduled Redemptions (excluding any right of the Corporation to defer such Scheduled Redemptions), to be paid during the 12-month period following the fiscal quarter in which such purchase of Junior Securities and shares of the Series A are effected or proposed to be effected will be adequate to permit the payment of such Series A dividends and to effect such Scheduled Redemptions. (iv) The Corporation shall not take any action, directly or indirectly, to cause, promote, recommend, assist, effect or authorize any merger, consolidation or other reorganization of the Corporation (whether for cash, securities or other property), whether or not the Corporation is the surviving corporation, unless: (A) all other constituent corporations party to such merger, consolidation or reorganization are not Affiliates of any member of the Dyson Group (other than Subsidiaries of the Corporation); (B) either (1) the Series A shall continue to be authorized and outstanding in accordance with this Division A, or (II) the holders of the Series A shall receive in the merger, consolidation or reorganization securities of the surviving corporation having preferences, rights and powers substantially identical to those of the Series A; (C) in any case where a constituent corporation party to such merger, consolidation or reorganization is a Subsidiary of the Corporation, the holders of Junior Securities receive in such merger, consolidation or reorganization securities for or in respect of such Junior Securities no -29- greater in value or rights relative to the Series A than the value and rights evidenced by the Junior Securities prior to such merger, consolidation or reorganization; (D) the Corporation is not then in default in the payment of dividends on the Series A or the redemption of the Series A; (E) as a consequence of such merger, consolidation or reorganization the consolidated net worth of the Corporation would not be adversely affected and the dollar amount available under any pool or similar reserve to which reference is made in Paragraphs (9)(a)(iiXB)(II), (9)(aXiiiX) and (9Xa)(iii)(D) hereof would not be reduced; and (F) such merger, consolidation or reorganization would not circumvent the covenants contained in this Paragraph (9) and the Corporation would not, as a result of such merger, consolidation or reorganization, be in default under this Paragraph (9), (v) Except for any Permitted Series A Restriction, the Corporation shall not enter into, or execute and deliver, any credit or loan agreement, trust indenture, security agreement, mortgage, note or other agreement, document or instrument which by its terms restricts the ability of the Corporation to pay dividends on, or to redeem, shares of the Series A in accordance with their terms. (vi) So long as any dividends on the Series A shares shall have accumulated and remain unpaid, or so long as the Corporation shall be in default under any redemption obligation with respect to the Series A, the Corporation shall not acquire (or become obligated to acquire) any business or assets of any Person, or the capital stock of any Person, if the total purchase price paid exceeds $50 million. (vii) The Corporation shall not acquire (or become obligated to acquire) any business or assets of any Person, or the capital stock of any Person, if the total purchase price exceeds $50 million and either before such transaction or immediately following such transaction the Debt-to-Equity Ratio of the Corporation would be greater than 0.75. (viii) Except for shares of capital stock of the Corporation issued pursuant to any Financing Agreement, the Corporation shall not issue any shares of capital stock haring a preference on any liquidation, dissolution or winding-up of the Corporation which ranks senior to or pan passu with the right of the holders of the Series A shares to receive the payment of the Series A Liquidation -30. Amount in the event of any such liquidation, dissolution or winding up of the Corporation. (ix) The Corporation stall not effect any sale of assets, or any capital stock or other securities of the Corporation or any Subsidiary of die Corporation, to any member of the Dyson Group except for fair value; the Corporation shall not effect any purchase of any assets (other than shares of the capital stock of the Corporation) of the Dyson Group except for four value; and the Corporation shall not purchase any shares of the capital stock of the Corporation owned by the Dyson Group except for fair value as determined by the reasonable judgment of the Board of Directors of the Corporation. (b) (i) So long as any shares of the Series A shall be outstanding, the Corporation shall deliver to the director appointed pursuant to Paragraph (8) hereof, and to each Original Holder of shares of the Series A (provided that shares of the Series A issued, or deemed to have been issued, as of the date on which the Recapitalization Agreement shall be effective to such Original Holder are outstanding) a copy of all financial statements and other financial data and all certificates delivered from time to time by the Corporation to any creditor of the Corporation under the terms of any Financing Agreement; provided that such director and such Original Holders shall keep such financial statements and data and such certificates confidential except to the extent that the director or such Original Holder desires to discuss such financial statements and data and such certificates with other holders of the Series A, who also shaD keep the foregoing confidential (ii) In the event of any failure by the Corporation to comply with the terms of Paragraph (9)(b) hereof, the Original Holders shall have the right to conduct a review (with the assistance their accounting advisers, if any) of the books and records of the Corporation, provided that such review does not interfere unreasonably with the business and operations of the Corporation and shall be at the cost of the Original Holders. (10) No Disposition of Shares. (a) Except for transfers of shares of the Series A by a holder thereof to the Corporation or to another holder of shares of the Series A or except as hereinafter provided, or unless approved by the Board of Directors of the Corporation (which approval may be withheld for any reason), no holder of a share of the Series A shall make, or suffer to be made, any Disposition of any share of the Series A. -31- (b) Any Original Holder shall be permitted to effect a transfer of shares of the Series A to any trust established by such Original Holder for the benefit of such Original Holder or members of the family of such Original Holder or for the benefit of any charily (including: a charitable remainder trust as described in 664 of the Internal Revenue Code of 1986, as amended), or any combination thereof; and upon the death of any such Original Holder, shares of the Series A may be transferred to the estate of such Original Holder and to members of the family of the Original Holder. No further transfers of shares of the Series A shall be permitted; however, (i) the estate of a deceased holder may effect sales of such Series A (subject to Paragraph (10)(c) of this Division A); and (ii) upon the transfer of shares of the Series A to any such charitable remainder trust, the restrictions contained in this Paragraph (10) shall cease to apply, except as provided in Paragraph (10)(c). (c) In the event that the estate of a deceased holder proposes to sell shares of the Series A, or any charity or charitable trust to which reference is made in paragraph (10)(b) of this Division A shall propose to sell shares of the Series A, such sale shall not occur unless and until the Corporation (or its assigns) shall have been offered the opportunity to purchase the shares at a price equal to the lesser of the price at which the Series A shares are proposed to be sold by the estate or such charity or charitable trust pursuant to a bona fide offer made by a third parly, or the Series A Redemption Price (together with any accumulated and unpaid dividends thereon) with respect to such shares. Such right of first refusal shall be exercisable by the Corporation (or Its assigns) within 30 days following written notice of any such sale, with a dosing thereof to occur within 30 days after the exercise by the Corporation (or its assigns) of such right of first refusal. (d) Any Original Holder of shares of the Series A shall be permitted to pledge shares of the Series A to secure any obligation of such Original Holder to any financial institution; however, any such pledge shall be subject to a right of the Corporation (or its assigns) to purchase the pledged Series A shares at any price (and on the same terms) at which a bona fide sale of the Series A shares (whether pursuant to a foreclosure proceeding or otherwise) is proposed by the pledgee, such right of first refusal to be exercisable by the Corporation (or its assigns) within 30 days following written notice of any such sale, with a closing thereof to occur within 30 days after the exercise by the Corporation (or its assigns) of such right of first refusal (e) Any Disposition of shares of the Series A in violation of this Paragraph (10) shall be void and ineffective. -32- (11) Restrictive Legend. Any certificate representing shares of the Series A shall bear the fallowing restrictive legend; The Restated Certificate of Incorporation of the Corporation restricts any "Disposition' (as defined in the Restated Certificate of Incorporation) of the securities represented by this certificate except as permitted by the Restated Certificate of Incorporation. A copy of the Restated Certificate of Incorporation of the Corporation is available for inspection and copying at the principal offices of the Corporation, and a copy or the provisions of the Restated Certificate of Incorporation of the Corporation setting forth such restrictions will be ftirnl&hed to the record holder of this certificate without charge upon written request to the Corporation. No Disposition of the securities represented hereby may be made without registration under the Securities Act of 1933, as amended, and applicable state securities laws, unless an exemption thereunder is available in the opinion of counsel for the Corporation. v** (1) Except as may be expressly provided in Division A of Article IV hereof or in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (5) of Article IV hereof with respect to the Preferred Stock: (a) each director shall serve until his successor is elected and qualified or until his death, resignation or removal; and (b) any director may be removed from office (either with or without cause) at any time with the affirmative vote of the holders of more than 50% of the outstanding shares of the Common Stock of the Corporation entitled to vote. (2) Election of directors need not be by ballot, unless the by-laws of tbe Corporation shall so provide. Article VI Except as otherwise provided by statute, any action which might have been taken by a vote of the stockholders at a meeting thereof may be taken with the written consent of such of the holders of stock who would have been entitled to vote upon the action if a meeting were held as have not less than the minimum percentage of the total vote required for the proposed corporate action by statute, this Certificate of Incorporation or the by-laws of the Corporation, as may be applicable, but in the case of the election of a director or directors, 33- not less than a majority of the stock of the Corporation entitled to vote thereon; provided that prompt notice shall be given to all stockholders of the taking of such corporate action without a meeting if less than unanimous consent is obtained. Article VII (1) From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at that time in force may be added or inserted in the manner and at the time prescribed by said laws, and aO rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of said laws. (2) 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 and empowered, without the assent or vote of the stockholders, to make, alter, amend and repeal the by-laws of the Corporation, in any manner not inconsistent with the laws of the State of Delaware or the Certificate of Incorporation of the Corporation. Article Vm The Corporation shah, to the full extent permitted by the General Corporation Law of the State of Delaware, as amended from time to time, Indemnify all persons whom it has the power to indemnify pursuant thereto. Articte K No director of the Corporation shall have personal liability to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that the foregoing shall not eliminate or limit the liability of any director (i) for any breach of such 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 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which such director derived an improper personal benefit -34- AHMeX No holder of shares of stock of any class (except as may be expressly granted to the holders of any series of Preferred Stock pursuant to the resolutions of the Board of Directors providing for the issuance thereof) shall be entitled to preemptive rights or as a matter of right to subscribe for or purchase or receive any part of any new or additional issue of shares of stock of any class or of securities convertible into shares of stock of any class, whether now or hereafter authorized or whether issued for money, for a consideration other than money or otherwise. Article.^ Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the 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 the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of 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 the Corporation under the provisions of 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 the 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 the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned tty 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 stock holders or class of stockholders of the Corporation, as the case may be, and also on the Corporation. ** IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be hereunto affixed and this Restated Certificate of Incorporation to be signed by its officers thereunto duly authorized as of the 26th day of May, 1992. Attest: The Dyson-Kissner-Maran Corporation Secretary (Corporate Seal) est H. Lorch Chairman of the Board -364* cTfie Jirst State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF TEE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CHANGE OF REGISTERED AGENT OF "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE NINETEENTH DAY OF OCTOBER, A.D. 1995, AT 9 O'CLOCK A.M. STATE OF OELAUARE SECRETARY OF STATE DIVISION OF CORPORATIONS FIUD 09-00 An 10/19/1995 950242640 - 550820 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that; l. The name of the corporation (hereinafter called the "corporation") is THE DYSON-KISSNER-MORAN COWORATON 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Locckennan Square, Suite L-100, City of Dover 19904, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Premice*Hail Corporation System, Inc., the business office of which is Identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed onOc-k. "sr , 19*?C ' Authorized Offlg^t JOHH a. F1TZS1HMOBS SKCKETWM DC BC DsCOA. CEKTIF OF CHANGE 4/1 `Delaware PAGE 1 <lHe first State I, JEFFREY , BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE EIGHTEENTH DAY OF APRIL, A.D. 1996, AT 11 O'CLOCK A.M. 0558820 8100 091013314 you imp verify this certificate at corp.deiaeare.oov/aufchver.xhtml PPR-iS-199fc. 15:26 FROM PATTERSON PLANNING TO STATE OF DELAUARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 1LOO AN 04/10/1936 9601TZ171 - B5BB20 RESTATED CERTIFICATE OP INCORPORATION OF THE DYSON-KISSNER.MORAN CORPORATION The undersigned, a corporation organized and existing under and by virtue of the Genera! Corporation iaw of the State of Delaware (the *Corporation"), does hereby certify as follows: 1. The original Certificate of Incoqwration of the Corporation was filed in the Office of the Secretary of State of the State of Delaware on October 28, i960 (under the name "The Dyson Company, Inc,**). 2. In the manner prescribed by 8 228 and 8 245 of the General Corporation Law of the State of Delaware, this Restated Certificate of Incorporation was duly authorized and adopted by all requisite action of the Board of Directors of the Corporation and by unanimous written consent of the stockholders of the Corporation. 3. The text of the Restated Certificate of Incoiporation of the Corporation, as heretofore amended and restated, is hereby further unaided and restated so as to read in its entirety as follows: Article I The name of the corporation (which is hereinafter referred to as the "Corporation*) is: "The Dyson-Kmner-Moian Corporation" Article )) The registered office of the Corporation is located at 1013 Centre Road, Wilmington, Delaware 19805-1297. The name of its registered agent at that address Is The Prentice-Hall Corporation System, Inc. The registered office is in New Code County. Article HI The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Genera! Corporation Law of the State of Delaware. TOTAL P.02 Article IV (1) Authorized Capital Stock (a) The total number of shares of all classes of stock which the Corporation is authorized to issue is i ,920,000 shares, consisting of: (i) 10,000 shares of Class A Voting Common Stock, par value $0.10 per share (the "Class A Voting Common Stock"); (ii) 1,500,000 shares of Class A Non-Voting Common Stock, par value $0.10 per share (the "Class A Non-Voting Common Stock"); (iii) 400,000 shares of Class B Common Stock, par value $0.10 per share (the "Class B Common Stock*); and (iv) 10,000 shares of Preferred Stock, par value $0.10 per share (the "Preferred Stock"). The Class A Voting Common Stock and the Class A Non-Voting Common Stock shall hereinafter together be referred to as the "Class A Common Stock". The Class A Common Stock and the Class B Common Stock shall hereafter together be referred to as the "Common Stock". (b) Except as may be expressly provided in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (S) of this Article IV with respect to the Preferred Stock, the amount of the authorized capital stock of the Corporation of any class or classes may be increased or decreased by the affirmative vote of the holders of shares of the voting Common Stock of the Corporation having the right to cast a majority of the votes evidenced by such voting Common Stock. (2) Dividends Subject to any restrictions on the payment of dividends contained in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (5) of this Article IV with respect to the Preferred Stock: (a) The holders of the Class A Common Stock shall be entitled to receive, to the extent permitted by law, such dividends as may be declared from time to time by the Board of Directors of the Corporation and shall participate in any and all dividend distributions on an equal per share basis. (b) Each holder of a share of the Class B Common Stock shall be entitled to 2- - receive out of the assets of the Corporation legally available for the payment of dividends, as and when declared by the Board of Directors of the Corporation, non-cumulative cash dividends on the shares of the Class B Common Stock in the amount of $0.08 per share of the Class B Common Stock per annum for each fiscal year of the Corporation, during the period from and including the date such share is issued (or is deemed to have been Issued) and payable quarterly fi.e. $0.02 per share per quarter), in arrears, on the last day of each of January, April, July and October, to holders of record on each such date. Such dividends shall be payable prior to the payment of any dividends on the Class A Common Stock. However, in the event that the Board of Directors shall declare any dividend on the Class A Common Stock of less titan $0.02 per share per any quarter, the dividends to which the holders of the Class B Common Stock shall be entitled for such quarter shall be equal to such lessor amount per share. In addition to such fixed dividends, the holders of shares of Class B Common Stock shall be entitled to receive participating dividends for each fiscal year in an aggregate amount per share equal to the excess over $12.00 per share of the aggregate amount of dividends declared per share on the Class A Common Stock with respect to record dates felling within such year. Any such participating: dividends shall be payable, without further action by the Beard of Directors, in the same manner (including without limitation the same record and payment dates) as the dividends on the Class A Common Stock giving rise to such participating dividends on fee Class B Common Stock. Except as aforesaid, no dividends shall be payable on the Class B Common Stock. (3) Liquidation, Dissolution,.or. Winding Up (a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation resulting in the distribution of any of its assets to its stockholders, each holder of the Class A Common Stock shall be entitled to receive fee "Class A Common Stock Priority Liquidation Amount" (as hereinafter defined) (and the holders of fee Class A Common Stock shall participate in any and all such distributions cm an equal per share basis) out of the net assets of the Corporation available for distribution to the holders of the capital stock of the Corporation, after fee Corporation shall have satisfied or made provision for its debts and obligations and for fee payment to the holders of shares of the Preferred Stock any preferential rights to receive distributions of the net assets of the Corporation, and before any distributions shall be made to holders of shares of the Class B Common Stock or any other class of stock ranking junior to the Class A Common Stock with respect to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of fee Corporation. For purposes hereof, the "Class A Common Stock Priority Liquidation Amount" shall mean the fixed amount per share of $125 in cash. (b) After the payment of the Class A Common Stock Priority Liquidation Amount to each -3- holder of a share of the Class A Common Stock, then the holders of the Class A Common Stock and die Class B Common Stock shall participate in any and alt distributions of any remaining assets of the Corporation on an equal per share basis (adjusted for any recapitalization, stock split, stock dividend or combination of outstanding shares subsequent to die date hereof). (c) The merger or consolidation of die Corporation into or with any other corporation or the merger of any other corporation into the Coiporation, or the lease or conveyance of all or substantially all of the property or business of die Corporation, shall not be deemed to be a dissolution, liquidation or a winding up of the Corporation. (d) In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger or consolidation, or the sale, conveyance, lease or other transfer by the Corporation of all or substantially all of its assets, or any other change in the corporate structure or shares of the Corporation, pursuant to any of which events the then outstanding shares of the Class A Common Stock or the Class B Common Stock are split up or combined, or are changed into, become exchangeable at the holder's election for, or entitle the holder thereof to, other shares of stock: (i) the fixed and participating dividends to which the holders of shares of the Class B Common Stock shall thereafter be entitled to receive pursuant to Paragraph (2) of this Article IV shall be determined in relation to the aggregate amount of dividends per share declared on all shares originally represented by the shares of the Class A Common Stock or the Class B Common Stock, as the case may be, issued and outstanding immediately prior to such event; and (ii) the preferential distributions to which the holders of shares of the Class A Common Stock shall thereafter be entitled to receive pursuant to this (3) shall be adjusted accordingly. W Noting. (a) Except to the extent that the holders of shares of the Preferred Stock are granted, in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (S) of this Article IV with respect to the Preferred Stock, the right to vote for the election of directors or on matters requiring action by the stockholders or submitted to the stockholders for action, the holders of the Class A Voting Common Stock and .the Class B Common Stock shall have the exclusive right to vote for (or to consent with respect to) the election of directors and, except as otherwise may be required by law, on all other matters requiring action by the stockholders or submitted to the stockholders for action. (b) In connection with any matter submitted to the stockholders of die Corporation, each holder of record of a share of the Common Stock shall be entitled to the following -4- number of votes for each share of the designated Common Stock owned of record by such holder: Class A Voting Common Stock: Class A Non-Voting Common Stock: Class B Common Stock: 400 votes per share -0- votes per share, except as may otherwise be required by law 1.0 vote per share (c) Except as otherwise required by law, the holders of the Class A Voting Common Stock and the Class B Common Stock shall vote together as one class, and the holders of the Class A Non-Voting Common Stock shall not be entitled to vote for any purpose. (5) PrefetaalJStocH. The Preferred Stock may be issued from time to time in classes or series as authorized by resolutions of the Board of Directors, and each such class or series shall be comprised of such number of shares, shall have such voting powers, full or limited, or no voting powers, and shall have such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolutions of the Board of Directors providing for the issuance of such stock. The holders of the Preferred Stock shall have no voting rights except as required by law or as expressed in resolutions adopted by the Board of Directors of the Corporation pursuant to this Paragraph (5) of this Article IV with respect to the Preferred Stock. ArticleV (1) Except as may be expressly provided in resolutions adopted by the Board of Directors of the Corporation pursuant to Paragraph (5) of Article IV hereof with respect to the Preferred Stock: (a) each director shall serve until his successor is elected and qualified or until his death, resignation or removal; and (b) any director may be removed from office (either with or without cause) at any time with the affirmative vote of the holders of more than 50% of the outstanding shares of the Common Stock of the Corporation entitled to vote.2 (2) Election of directors need not be by ballot, unless the by-laws of the Corporation shall so provide. Article VI Except as otherwise provided by statute, any action which might have been taken by a vine of -5- the stockholders at a meeting thereof may be taken with the written consent of such of the holders of stock who would have beat entitled to vote upon the action if a meeting were held as have not less than the minimum percentage of the total outstanding voting power required for the proposed corporate action by statute, this Restated Certificate of Incorporation or die by-laws of the Corporation, as may be applicable, but in the case of the election of a director or directors, not less than a majority in voting power of the outstanding stock of the Corporation entitled to vote thereon; provided that prompt notice of the taking of such corporate action without a meeting shall be given, as required by law, to those stockholders who did not so consent in writing. Alfote..yil (1) From time to time any of the provisions of this Restated Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at that time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of toe Corporation by this Restated Certificate of Incorporation are granted subject to the provisions of said laws. (2) 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 and empowered, without toe assent or vote of the stockholders, to make, alter, amend and repeal the by-laws of the Corporation, in any manner not inconsistent with toe laws of the State of Delaware or this Restated Certificate of Incorporation of the Corporation. Article VII? A director of the Corporation shall not be liable to toe Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under toe General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. Any repeal or modification of the preceding sentence shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such repeal or modification. -6- IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of Incorporation to be duly executed as of theday ofT^^ . 1996. The Dyson-Kissner-Moran Corporation Bv: Title: *7- <Ifie first State PAGE 1 I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE DYSON-KISSNER-MORAN CORPORATION", FILED IN THIS OFFICE ON THE TWENTY-SIXTH DAY OF JUNE, A.D. 1998, AT 9 O'CLOCK A.M. 0558820 8100 091013314 You may verity this certificate oruine at cort>. dalawaro.aav/authmr. sktml STATS OF DELAWARE SECRETARY OF STATE DIVISION OP CORPORATIONS FILED OS:00 AN 06/26/1998 981251158 - 0558820 Certificate ofAmendment of Restated Certificate of Incorporation of Tbs Dyson-Kissner^Moran Corporation Hie Dyson-Kissncr-Morau Corporation, a corporation organized under and by virtue ofthe General Corporation Law of the State of Delaware (the "Corporation") docs hereby certify as follows: FIRST; The Certificate of Incorporation of the Corporation was originally filed in the Office of the Secretary of State of Delaware on October 28,1960 (under the name The Dyson Company, Inc") and aRestated Certificate of Incorporationwas filed indie Office of the Secretary of State of Delaware on April 18,1996, SECOND: The Restated Certificate of incorporation of the Corporation is hereby amended by striking Article IV (1)(a) in its entirety and substituting in lieu thereof the following: (1) Antbprfrffi QlBPaLSwk (a) The total number of shares of all classes of stock which the Corporation is authorized to issue is 720,000, consisting of: (i) 10,000 shares of Class A Voting Common Stock, par value $0.10 per share (die "Class A VotingCommon Stock"); (jo) 500,000 shares of Class A Non-VotingCommon Stock, parvalue $0.10 per share (the 'Gass A Non-Voting Common Stock"); (iii) 200,000 shares of Class B Common Stock, parvalue $0,10 per share (the "Gass B Common Stock"); and (iv) 10,000 shares of Preferred Stock, par value $0.10 per share (the "Preferred Stock"). The Gass A Voting Common Stock and the Gass A Non-Voting Common Stock shall hereaftertogether be referred to as the "Gass A Common Stock". The Class A Common Stock and the Gass B Common Stock shall hereafter together be referred to as the "Common Stock THIRD: The above amendment to the Restated Certificate of Incorporation of the Corporation has been duly adopted fay the Board of Directors and all of the stockholders of the Corporation entitled to vote thereon in accordance with the General Corporation Lew of die State of Delaware pursuant to See. 242. IN"WITNESS WHEREOF, the Corporation has caused its corporate seal to he hereunto affixed and this Certificate to be signed by its officers thereto duly authorized Dated: May 5,1998 Attest: Secretary Huiec DJ7yJso;unm-iKuissunieui'-riMuvo4rauni ^wrpi^onrautwioun LaByr:. ftRobert RDyfon \| Chairman of the Board and Chief Executive Officer l CT lien Solutions Search Results Deliver To: Visit wtmv.iLienonUne.coim and view itour results electronically. ATTN: PAMELA OLSEN JENNIFER VILLA From: KAZAN,MCCLAIN,ABRAMS,FERNA CT LIEN SOLUTIONS SACRAMENTO NDEZ,LYONS,FARISSE 1232 Q STREET & GREENWOOD A PROF. LAW SACRAMENTO CA 95811 CORP Ph: 8003442382 Ex: 0221 171 TWELFTH ST., THIRD FL. Fax: 8007804795 OAKLAND,CA 94607 Email: udssorders@uccdtrect.com Ref: RONALD BLATT Date: Client #: Subject: Jurisdiction: Search Type: 13-Nov-2009 12:30PM 251397 INTERLINE BRANDS, INC. - 3790835 DE Secretary of State Order#: 20896958 Certified Charter Documents with All Amendments/Mergers Item #: 4 Through Date: 12-Nov-2009 Results: Certified Copies Attached Comments: Disclaimer: CT Lien Solutions provides the best copies available from the jurisdiction. This report contains information compiled from sources which CT Lien Solutions considers reliable but does not control. CT Lien Solutions in no way undertakes or assumes any part of the customer's business, legal or similar risks, and does not guarantee the accuracy, completion or timeliness of the information provided, and shall not be liable for any losses or injuries whatever resulting from any contingency beyond its control, or from negligence, regardless of the cause._______ ___ _________________ `Delaware PAGE 1 (lhe first State I, JEFFREY W. BOLLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "INTERLINE BRANDS, INC. " AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SEVENTH DAY OF MAY, A.D. 2004, AT 11:11 O'CLOCK A.M. RESTATED CERTIFICATE, FILED THE SIXTEENTH DAY OF DECEMBER, A.D. 2004, AT 5:52 O'CLOCK P.M. CERTIFICATE OF DESIGNATION, FILED THE TWENTY-THIRD DAY OF MARCH, A.D. 2009, AT 9:03 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, "INTERLINE BRANDS, INC. 3790835 8100H 091010963 JTou may verify this certificate online at coip,delawaxa.gov/authver.abtml Skate of Delaware Secretary of State Division of Corporations Delivered 11:11 M 05/27/2004 FILED 11:11 m 05/27/2004 SRV 040394432 - 3790835 FILE CERTIFICATE OF INCORPORATION of INTERLINE BRANDS, INC. The undersigned incoiporatoi, in order to form a corporation under the General Corporation Law ofthe State of Delaware (the "General Corporation Law"), certifies as follows: 1. Name. The name ofthe corporation is '`Interline Brands, Inc." (the "Corporation"). 2. MdTWtLBfiBBtarfffl Qffiftftjpd Aaffltf. The address ofthe Corporation's registered office is 615 South DuPont Highway, City ofDover, County of Kent, State ofDelaware 19901; and toe name ofits registered agent at such address is National Corporate Research, Ltd, 3. Purposes. The purpose ofthe Corporation is to engage in any lawful act or activity for which corporations may he organized under the General Corporation Law. 4. Number ofShares. The total number ofshares ofstock that the Corporation shall have authority to issue is: One Hundred (100), all ofwhich shall be shares ofCommon Stock oftoe par value ofOne Cent ($0.01) each. Soc*VYfe7.mjs.t 2 5. Name and Mutiny Address oflocoroofgtor. the name and mailing address offixe incorporator are: Sidney Nicholas Hockens, Paul, Weiss, Rifldnd, Wharton & Garrison, LLP, 1285 Avenue ofthe Americas, New York, New York 10019 6004. 6, Election ofDirectors. Unless and except to the extent that the By laws ofdie Corporation (the "By-laws") shall so require, the election ofdirectors ofthe Corporation need not be by written ballot. 7. Limitation ofLiability. To the fullest extent permitted under the General Corporation Law, as amended from time to time, no director ofthe Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach offiduciary duty as a director. Any amendment, repeal ormodification ofthe foregoing provision shall not adversely affect any right or protection of a director ofthe Corporation hereunder in respect ofany act or omission occurring prior to the time ofsuch amendment, repeal or modification. -1 Rialit to Indemnification The Corporation shall indemnify and hold harmless, to the fhilest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a "Covered Person") who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or piooeoding, Dm *HYSrf4MM.i 3 whether civil, criminal, administrative or investigative (a 'Proceeding"), by reason ofthe fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer ofthe Corporation, ie or was serving at the request ofthe Corporation as a director, officer, employee cor agent of another corporation or ofa partnership,joint venture, trust, enterprise or nonprofit entity (an "Other Entity"), including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such Covered Person, Notwithstanding the preceding sentence, except as otherwise provided in Section 8,3, the Corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only ifthe commencement ofsuch Proceeding (or part thereof) by the Covered Person was authorized by die Board ofDirectors ofthe Corporation (the "Board"). 8,2 Prepayment ofExpenses. The Corporation shall pay the expenses (including attorneys* fees) incurred by a Covered Person in defending any Proceeding in advance of ita final disposition, provided, however, that, to the extent required by applicable law, such payment ofexpenses in advance ofdie final disposition offlie Proceeding shall be made only upon receipt ofan undertaking by the Covered Person to repay all amounts advanced ifit should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article 8 or otherwise. PwlNWiWHJU 4 8.3 claims. Ifa claim for indemnification or advancement of expenses under this Article 8 is not paid in Ml within 30 days after a written claim thereforby the Covered Person has been received by the Corporation, tee Covered Person may file suit to recover tee unpaid amount ofsuch claim and, if successful in whole or in part, shall be entitled to be paid the expense ofprosecuting such claim, In any such action the Corporation shall have tee burden ofproving teat the Covered Person is not entitled to the requested indemnification or advancement ofexpenses under applicable law, 8.4 M^ncjc^vitvnfRiyhta. The rights conferred on any Covered Person by this Article 8 shall notbe exclusive ofany other rights that such Covered Person may have or hereafter acquire ureter any statute, provision ofthis Certificate of Incorporation, the By-laws, agreement, vote ofstockholders or disinterested directors or otherwise. 8.3 Other Sources, The Corporation's obligation, ifany, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of an Other Entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such Other Entity. 8.6 Amendment or Repeal. Any repeal or modification ofthe foregoing provisions ofthis Article 8 shall not adversely affect any right or protection DoaWJYSiWMSS.l 5 hereunder of any Covered Persoo in respect ofany act or omission occurring prior to the time ofsuch repeal or modification. 8.7 OthgrlDdemgifloation.and Prepayment ofjeswn&w. This Artiole 8 shall not limit file right oftie Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expanses to persons other than Covered Persons when and as authorized by appropriate corporate action. 9. At Amendment and/or Repeal ofBy-Laws, In furtherance and not in limitation ofthe powers conferred by the laws ofthe State ofDelaware, the Board is expressly authorized to make, alter and repeal the By-laws, subject to the power ofthe stockholders ofthe Corporation to alter or repeal any By-law whether adopted by them or otherwise. 10. Powers oflncorooratora, The powers ofthe incorporators are to terminate upon the filing ofthis Certificate ofIncorporation with the Secretary ofState of the State ofDelaware. The name and mailing address ofthe persons who are to serve as the initial directors ofthe Corporation, or until his their successors are duly elected and qualified, are: Michael J, Grebe 801W. Bay Street Jacksonville, Florida 32204 "William E. Sanford 801 w. Bay Street Jacksonville, Florida 32204 6 ii- Gfftjfia&A ftBgQtg. The Corporation reserves (he right at any time, end from time to tune, to amend, alter, change or repeal any provision contained in this Certificate oflncorporaticm, and other provisions authorized by the laws offile State ofDelaware at (he time in force may be added or inserted, in foe manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges ofwhatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate ofIncorporation in its present form or as hereafter amended are granted subject to the rights reserved in this article. WITNESS the signature ofthis Certificate ofIncorporation this 27th day ofMay, 2004. Title; Incorporator Doo#iWYfr.741M.l AMENDED AND RESTATED State of Delaware Secretary of State Division of Corporations Delivered 05:52 PM 12/16/2004 FILED 05:52 PM 12/16/2004 SPV 040914581 - 3750955 FOE CERTIFICATE OF INCORPORATION of INTERLINE BRANDS, INC. Interline Brands, Inc., a corporation duly incorporated under the laws of the State of Delaware, hereby certifies as follows: FIRST: The name ofthe corporation is Interline Brands, Inc. (the "Corporation"). The original Certificate of Incorporation of the Corporation was filed with the Secretary of State ofthe State of Delaware on the 27th day ofMay 2004. SECOND: This Amended and Restated Certificate of Incorporation has been duly adopted in accordance with Sections 242 and 245 ofthe Delaware General Corporation Law (the "General Corporation Law") and by the written consent of stockholders in accordance with Section 228 of the General Corporation Law. THIRD: This Amended and Restated Certificate ofIncorporation restates and further amends the Certificate of Incorporation ofthe Corporation to read as follows: 1. Name. The name of the corporation is "Interline Brands, Inc." (the "Corporation"). 2. Address: Registered Office and Agent. The address ofthe Corporation's registered office is National Corporate Research, Ltd., 615 South Dupont Highway, Dover Delaware 19901, Kent County, and the name of its registered agent at such address is National Corporate Research, Ltd. Hoc JfcNY&730B6a.t 2 3, Purposes. The purpose of the Corporation is lo engage in any lawful act or activity for which corporations may be organized under the General Corporation Law, 4. Number of Shares. The total number of shares of stock that the Corporation shall have authority to issue is: one hundred and twenty million (120,000,000) divided as follows: twenty million (20,000,000) shares ofPreferred Stock, of the par value of $0.01 per share (the "Preferred Stock"), and one hundred million (100,000,000) shares of Common Stock, of the par value of $0.01 per share (the "Common Stock"). 4.1 The designation, relative rights, preferences and limitations of the shares of each class are as follows: 4,1.1 The shares ofPreferred Stock may be issued from time to time in one or more series of any number of shares, provided that the aggregate number of shares issued and not retired of any and all such series shall not exceed the total number of shares of Preferred Stock hereinabove authorized, and with such powers, including voting powers, if any, and the designations, preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, all as shall hereafter be stated and expressed in the resolution or resolutions providing for the designation and issue of such shares of Preferred Stock from time to time adopted by the Board of Directors of the Corporation (the "Board") pursuant to authority so to do which is hereby expressly vested in the Board. The powers, including voting powers, if any, Cot fcNVS:130968.6 3 preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, ifany, may differ from those of any and all other series at any time outstanding. Each series of shares of Preferred Stock: (a) may have such voting rights or powers, foil or limited, if any; (b) may be subject to redemption at such time or times and at such prices, if any, (c) may be entitled to receive dividends (which may be cumulative or non-cumulative) at such rate or rates, on such conditions and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or series ofstock, if any; (d) may have such rights upon the voluntary or involuntary liquidation, winding up or dissolution of, upon any distribution of the assets of, or in the event of any merger, sale or consolidation of, the Corporation, if any, (e) may be made convertible into or exchangeable for, shares of any other class or classes or of any other series ofthe same or any other class or classes of stock of the Corporation (or any other securities of the Corporation or any other person) at such price or prices or at such rates of exchange and with such adjustments, ifany; (f) may be entitled to the benefit of a sinking fluid to be applied to the purchase or redemption of shares of such series in such amount or amounts, ifany, (g) may be entitled to the benefit of conditions and restrictions upon the creation of indebtedness of the Corporation or any subsidiary, upon the issue of any additional shares (including additional shares of such series or of any other series) and upon foe payment ofdividends or the making of other distributions on, acid the purchase, redemption or other acquisition by the Corporation or any subsidiary of any outstanding shares of the Corporation, if any; (h) may be subject to restrictions on transfer or registration of transfer, or on the amount of shares that may be owned by any person or DOC *NYfc73Q&6&.6 4 group ofpersons; and (i) may have such other relative, participating, optional or other special rights, qualifications, limitations oi restrictions thereof, if any; all as shall be stated in said resolution or resolutions of the Board providing for the designation and issue of such shares ofPreferred Stock. 4.1.2 Except as otherwise provided by law or by this Certificate of Incorporation and subject to the express terms of any series of shares of Preferred Stock, the holders of outstanding shares of Common Stock shall exclusively possess voting power for the election of Directors and for all other purposes, each holder of record of shares of Common Stock being entitled to one vote for each share of Common Stock standing in his or her name on the books of the Corporation. Except as otherwise provided by law or by this Certificate of Incorporation and subject to the express terms of any series of shares ofPreferred Stock, the holders of shares of Common Stock shall be entitled, to the exclusion ofthe holders of shares of Preferred Stock of any and all series, to receive such dividends as from time to time may be declared by the Board. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, subject to the rights, if any, ofthe holders ofany outstanding series of Preferred Stock, the holders ofshares ofCommon Stock shall be entitled to share ratably according to the number of shares of Common Stock held by than in all remaining assets of the Corporation available for distribution to its stockholders. 4.1.3 Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, toe number of authorized shares of any class or classes of stock may be increased or decreased (but not below the number of shares thereof then DocftNYS:?8S8.6 5 outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(bX2) of the General Corporation Law or any corresponding provision hereinafter enacted. 5. Board of Directors. , 5.1 Number of Directors. The business and affaire ofthe Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the By-laws of the Corporation, as amended (the "By-laws"), shall so require, the election of the Directors of the Corporation need not be by written ballot Except as otherwise provided for or fixed pursuant to the provisions ofArticle 4 ofthis Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall be not less than three nor more than fifteen, with the then-authorized number ofDirectors being fixed from time to time by the Board. During any period when the holders of any series ofPreferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Article 4 hereof, then upon commencement and for the duration of the period during which such right continues: (i) foe then otherwise total authorized number of Directors of the Corporation shall automatically be increased by such specified number of Directors, and the holders of such Preferred Stock shall be entitled to elect the additional Directors so provided for or fixed pursuant to said provisions, and (ii) each such additional Director shall serve until such Director's successor shall have been duly elected and qualified, or OwsitY6:118M.4 6 until such Director's right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional Directors elected by the holders of such stock, or elected to fill any vacancies resulting from fee death, resignation, disqualification or removal of such additional Directors, shall forthwith terminate and the total and authorized number of Directors of the Corporation shall be reduced accordingly. 5.2 Staggered Board. The Board (other than those Directors elected by the holders of any series of Preferred Stock, provided for or fixed pursuant to the provisions of Article 4 hereof (the "Preferred Stock Directors")) shall be divided into three classes, as nearly equal in number as possible, designated Class I, Class n and Class III. Class 1 Directors shall initially serve until the 2005 annual meeting of stockholders; Class IT Directors shall initially serve until the 2006 annual meeting of stockholders; and Class III Directors shall initially serve until the 2007 annual meeting of stockholders. Commencing with the annua] meeting of stockholders in 2005, Directors of each class the term of which shall then expire shall be elected to hold office tor a three-year term and until the election and qualification of their respective successors in office. In case of any increase or decrease, from time to time, in the number ofDirectors Doc *NY6;73G86ft.ft 7 (other than Preferred Stock Directors), the number ofDirectors in each class shall be apportioned as nearly equal as possible. 5,3 Vacancies and Newlv Created Directorships. Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of Directors or any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal from office or otter cause shall be filled solely by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board. Any Director so chosen shall hold office until the next election of the class for which such Director shall have been chosen and until his or her successor shall be elected and qualified. No decrease in the number of Directors shall shorten the term of any incumbent Director. 5.4 Removal ofDirectors. Except for such additional Directors, if any, as are elected by the holders of any series ofPreferred Stock as provided for or fixed pursuant to the provisions of Article 4 hereof, any Director, or the entire Board, may be removed from office at any time, but only for cause and only by the affirmative vote of at least 66-2/3% ofthe total voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election ofDirectors, voting together as a single class. 6. Limitation of Liability. To the fullest extent permitted under the General Corporation Law, as amended from time to time, no Director ofthe Corporation Doe NY6:73080$.$ 8 shall be personally liable to the Corporation or its stockholders for monetary damages fbr breach of fiduciary duty as a Director, provided that this provision shall not eliminate or limit the liability of a Director (a) fbr any breach ofthe Director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under section 174 of the General Corporation Law or (d) for any transaction from which the Director derived any improper personal benefits, Ifthe General Corporation Law is hereafter amended to authorize corporate action further eliminating or limiting the personal liability of Directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law, as so amended. Any amendment, repeal or modification of the foregoing provision shall not adversely affect any right or protection of a Director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, repeal or modification. 7. Indemnification. 7.1 Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a "Covered Person") who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding"), by reason ofthe fact that he or she, or a person for whom he or she is the legal representative, is or was a 9 Director or officer of the Corporation or, while a Director or officer of the Corporation, 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, enterprise or nonprofit entity (an "Other Entity*'), including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys* fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 7.3, the Corporation stall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized by the Board. 7.2 Prepayment of Expenses. The Corporation shall pay the expenses (including attorneys' fees) incurred by a Covered Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article 7 or otherwise. 7.3 Claims. If a claim for indemnification or advancement of expenses under this Article 7 is not paid in fell within 30 days after a written claim therefor by the Covered Person has been received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such Doc *NY*?308tt.6 10 action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement ofexpenses under applicable law. 7.4 Nonexclusivitv ofRights. The rights conferred on any Covered Person by this Article 7 shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the By-laws, agreement, vote of stockholders or disinterested Directors or otherwise. 7.5 Other Sources. The Corporation's obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a Director, officer, employee or agent of an Other Entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such Other Entity. 7.6 Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article 7 shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to die time of such repeal or modification. 7.7 Other Indemnification and Prepayment of Expenses. This Article 7 shall not limit die right ofthe Corporation, to die extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action. n 8. Adoption. Amendment and/or Repeal ofBv-Laws. In furtherance and not in limitation of the powers conferred by the laws of the State ofDelaware, the Board is expressly authorized to make, alter and repeal the By-laws, subject to the power of the Stockholders of the Corporation to alter or repeal any By-laws whether adopted by them or otherwise. Notwithstanding any other provisions ofthis Certificate of Incorporation or the By-laws {and notwithstanding the fact that a lesser percentage may be permitted by applicable law, this Certificate of Incorporation or the By-laws), but in addition to any affirmative vote of the holders of any particular class of stock of the Corporation required by applicable law or this Certificate of Incorporation, the affirmative vote of the holders of at least 66-2/3% ofthe voting power of the shares of the then outstanding voting stock ofthe Corporation, voting together as a single class, shall be required to adopt new By-laws or to alter, amend or repeal the By-laws, except with respect to Article 7 of the By-laws, which may be altered, amended or repealed by the affirmative vote of the holders of at least a majority ofthe voting power of the shares of the then outstanding voting stock of the Coiporation, voting together as a single class. 9. Certificate Amendments. The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at die time in force may be added or inserted, in the manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges ofwhatsoever nature conferred upon stockholders, Directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended Doc tf:NY6:7*O80i.6 12 are granted subject to tbe rights reserved in this article. Notwithstanding any other provisions of this Certificate of Incorporation or the By-laws (and notwithstanding the fact that a lesser percentage may be permitted by applicable law, this Certificate of Incorporation or the By-laws), but in addition to any affirmative vote of the holders of any particular class of stock of the Corporation required by applicable law or this Certificate ofIncorporation, the affirmative vote ofthe holders of at least 66-2/3% ofthe voting power of the shares ofthe then outstanding voting stock of the Coiporation, voting together as a single class, shall be required to amend or repeal, or adopt any provisions inconsistent with, Section 5.4 or Articles 8,9 or 10 of this Certificate of Incorporation. 10. Written Consent Prohibition. Except as otherwise provided for or fixed pursuant to the provisions of Article 4 of this Certificate of Incorporation relating to the rights of holders of any series of Preferred Stock, no action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by written consent of stockholders in lieu of a meeting of stockholders, unless the action to be effected by written consent of stockholders and the taking of such action by such written consent have expressly been approved in advance by the Board. 11. Section 203. The Corporation shall not be governed by Section 203 of the General Corporation Law. 13 WITNESS the signature of this Amended and Restated Certificate of Incorporation this 10th day of December 2004. INTERLINE BRANDS, Name: Title: rr7rrr.n1 VP General Counsel & Secretary Odc:NY:73086. State of Delavaxe Seaxmtoxy of State Division of Corporations Delivered 09:10 MS 03/23/2009 FILED 09:03 Ml 03/23/2009 SR/ 090289827 - 3790835 FIVE CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK OF INTERLINE BRANDS, INC. Pursuant to Section 151 of the Genera) Corporation Law of the State of Delaware We, the undersigned officers of Interim* Brands, Inc., a Delaware corporation (the "Corporation"1), pursuant to the provisions of Sections 103 and 1SI of (he General Corporation taw ofthe State of Delaware, do hereby state and certify that pursuant to the authority vested in the Board of Directors ofthe Corporation by the Amended and Restated Certificate of Incorporation of the Corporation, as amended, the Board of Directors on March 22,2009, duly adopted the following resolution creating a series of 50,000 shares of Preferred Stock designated as Series A Junior Participating Preferred Slock: RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of its Amended and Restated Certificate of Incorporation, as amended, a series of Preferred Stock of the Corporation be and it hereby is created, and that the designation and amount thereofand the voting powers, preferences and relative, participating, optional and other special rights of the shares of such series, and the qualifications, limitations or restrictions thereofarc as follows: 1 Designation and Amount. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" and the number of shares constituting such series shall be 59,000,2 2. Dividends and Distributions. (A) Subject to the prior and superior rights of the holders of any shares of any series of preferred stock tanking prior and superior to the Series A Junior Participating Preferred Slock with respect to dividends, the holders ofshares of Series A Junior Participating Preferred Stock, in preference to the shares of Common Stock, par value $0.01 per share, of the Corporation (the "Common Stock"), and any other stock of the Corporation junior to the Series A Junior Participating Preferred Slock with respect to dividends, shall be entitled to receive, when, as and if declared by the Board ofDirectors out of funds legally available for the purpose, quarterly dividends payable in cash on the first day of January, April, July and October in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Junior Participating Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) SO. 10 or (b) subject to the provision for adjustment hereinafter set forth, 1,000 times (he aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Slock (by reclassification or otherwise), declared on (he Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Junior Participating Preferred Stock. If (he Corporation shall at any time after March 22, 2009 (the ""Rights Declaration Date") (i) declare or pay any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock into a larger number ofshares, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of Sales A Junior Participating Preferred Stock were entitled immediately prior to such event under clause (b) ofthe preceding sentence shall be adjusted by multiplying such amount by a traction the numerator of which is the number of shares of Common Stock outstanding immediately after such event end the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (3) The Corporation shall declare a dividend or distribution on the Swiss A Junior Participating Preferred Stock as provided in Section 2(A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares ofCommon Stock); provided that, ifno dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the neat subsequent Quarterly Dividend Payment Dale, a dividend of SO. 10 per share on the Series A Junior Participating Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares ofSeries A Junior Participating Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in cither of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Junior Participating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable un such shares shall be allocated pro rata on a sharc-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination ofholders of shares of Series A Junior Participating Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall he no more than 60 days prior to the date fixed for the payment thereof.i i Voting Rights. In addition U> any other voting rights required by law. the holders of shares of Series A Junior Participating Preferred Stock shall have only the following voting rights: UK* tot (A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Junior Participating Prefared Stock shall entitle the holder thereofto 1,000 votes on all matters submitted to a vote ofthe stockholders of the Corporation, and each fractional share of Series A Junior Participating Preferred Stock shall entitle the holder thereof to a pro rata fractional vote. Ifthe Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock into a larger number of shares or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the number of votes per share 1o which holders of shares ofSeries A Junior Participating Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction the numerator of which is the number of shares ofCommon Stock outstanding immediately after such event and the denominator of which is the number of shares ofCommon Stock that were outstanding immediately prior to such event. (B) Except as otherwise provided herein or by law, the holders of shares of Series A Junior Participating Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation. (C) Except as set forth herein, holders of Series A Junior Participating P re1erred Stock shall have no special voting rights and their consent shall not be required (except to the extent they arc entitled to vote with holders ofCommon Stock as set forth herein) for taking any corporate action. A. Certain Restrictions. (A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Junior Participating Preferred Stock as provided in Section 2 arc in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have been paid in foil or set aside for payment, the Corporation shall not: (i) declare or pay dividertds on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior {either as to dividends or upon liquidation, dissolution or winding up) to ihc Series A Junior Participating Preferred Stock; (ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A Junior Participating Preferred Stock and ail such parity stock on which dividends are payabte or in arrears in proportion to the total amounts to which the holders of alt such shares arc then entitled; (in) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation. IAk/1 ini dissolution or winding up) with the Scries A Junior Participating Preferred Stock; provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock (a) in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Junior Participating Prefeired Stock or (h) held by employees of the Coiporation or a subsidiary of the Corporation upon the termination of their employment with the Corporation or a subsidiary of the Corporation; or (iv) purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms us the Board of Directors, after consideration ofthe respective annual dividend rales and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Coiporation shall not permit any subsidiary of the Coiporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under Section 4(A), purchase or otherwise acquire such shares at such time and in such manner. 5. Reacquired Shares. Any shares of Scries A Junior Participating Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall, upon their cancellation, become authorized but unissued shares of Preferred Stock and may be reissued as pan ofa new series of Prefeired Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth in the Amended and Restated Certificate of Incorporation. 6. Liquidation. Dissolution or Winding Up. (A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made to the holders ofshares of stock rankingjunior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating PrefciTed Stock unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shall have received an amount equal to SI,000 per share of Series A Junior Participating Preferred Stock, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment (the "Series A Liquidation Preference"). Following the payment of the full amount ofthe Series A Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the "Common Adjustment'') equal to the quotient obtained by dividing (i) the Scries A Iks;* I'M )) i'.riv, Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth in Section 6(C) below to reflect such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii), the '*Adjustment Number*'). following the payment of the full amount of the Series A Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series A Junior Participating Preferred Stock and Common Stock, respectively, holders of Series A Junior Participating Preferred Stock and holders ofshares ofCommon Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to one with respect tD such Preferred Stock and Common Stock, on a per share basis, respectively. {0) If, however, there are not sufficient assets available to permit payment in full of the Series A Liquidation Preference and the liquidation preferences of all other series of preferred stock, if any, that rank on a parity with the Series A Junior Participating Preferred Stock, then such remaining assets shall be distributed ratably to tlw holders of such parity shares in proportion to their respective liquidation preferences. Ii, however, Ihere arc not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. (C) If the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock into a larger number of shares or (iii) combine the outstanding Common Stock into a smaller number ofshares, through a reverse stock split of otherwise, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 7 Consolidation, Merger, etc. If the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash or any other property, then in any such case the shares ofScries A Junior Participating Preferred Stock shall at ihe same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of stock, securities, cash and any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. II' the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Slock, (ii) subdivide the outstanding Common Stock into a larger number of shares or (iii) combine the outstanding Common Stock into a smaller number ofshares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Junior Participating Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares ofCommon Stock outstanding immediately after such event and the denominator of which is the I Jm. `,'bJ Vi <t . i; 1 number of shares of Common Stock that were outstanding immediately prior to such event. 8 No Redemption. The shares of Series A Junior Participating Preferred Slock shall not be redeemable. <>. Rank. The Series A Junior Participating Preferred Stock shall rank junior with respect to payment of dividends and on liquidation to all other series of the Corporation's preferred stock outstanding on the date hereofand to all such other series that may be issued after the date hereof except to the extent that any such other series specifically provides that it shall rank junior to the Series A Junior Participating Preferred Stock. i 0. Amendment: The Amended and Restated Certificate of Incorporation of the Corporation shall not be amended in any manner that would materially alter or change the powers, preferences or special rights of the Series A Junior Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at leasl a majority of the outstanding shares of Series A Junior Participating Preferred Stock, voting separately as a class. 11. fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share that shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, to receive dividends thereon, and to participate in any distribution of assets and to have the benefit of all other rights of holders of Series A Junior Participating Preferred Stock. I SI > V U'l "f % ? IK WITNESS WHEREOF, Interline Brands, Inc. affirms the foregoing as true end has caused this Certificate to be duly executed by the authorized officers below as of this 23rd day ofMarch, 2009. INTERLINE BRANDS, INC. Attest: By: Name: Michael J. Grebe Title: Chairman, Chief Executive Officer and President CT Lien Solutions Search Results Deliver To: Visit imtrto.iLiewonfiwe.com and view your results electronically. ATTN: PAMELA OLSEN JENNIFER VILLA From: KAZAN,MCCLA1N,ABRAMS,FERNA CT LIEN SOLUTIONS SACRAMENTO NDEZ,LYONS,FARISSE 1232 Q STREET & GREENWOOD A PROF. LAW SACRAMENTO CA 9581V CORP Ph: 8003442382 Ex: 0221 171 TWELFTH ST., THIRD FL. Fax: 8007804795 OAKLAND,CA 94607 Email: udssorders@uccdlrect.com Ref: RONALD BLATT Date: Client #: Subject: Jurisdiction: Search Type: 13-Nov-200912:31PM 251397 INTERLINE BRANDS, INC. - 4259954 OE Secretary of State Order#: 20896958 Certified Charter Documents with All Amendments/Mergers Through Date: 12-Nov-2009 Item#: 5 Results: Certified Copies Attached Comments: Disclaimer: CT Lien Solutions provides the best copies available from the jurisdiction. This report contains information compiled from sources which CT Lien Solutions considers reliable but does not control. CT Lien Solutions in no way undertakes or assumes any part of the customer's business, legal or similar risks, and does not guarantee the accuracy, completion or timeliness of the information provided, and shall not be liable for any losses or injuries whatever resulting from any contingency beyond its control, or from negligence, regardless of the cause.___________________________ !Delaware PAGE 1 Ufte first State I, JEFFREY FT. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "INTERLINE BRANDS, INC. " AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF FOREIGN QUALIFICATION, FILED THE EIGHTH DAY OF NOVEMBER, A.D. 2006, AT 12:35 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-FIFTH DAY OF NOVEMBER, A.D. 2008, AT 10:56 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, "INTERLINE BRANDS, INC.". i may veriry cnia carcirxcace online coep.delawaxe.gov/authver.afttml State of Delaware Secretary of State Division or Oejpomfcions Delivered 12.-J5 Fti 11/08/2006 FILED 12:35 FH 11/08/2006 SRV 061022018 - 4259954 FOE STATE o/DELAWARE FOREIGN CORPORATION CERTIFICATE The Undersigned, a corporation duly organized and existing under the laws ofthe State of New Jersey ______ , in accordance with the provisions of Section 371 of Title 8 of the Delaware Code, does hereby certify: Find: That fawtiae Brands, Inc._______________ Is a corporation duly organized and existing under the laws ofdie State of Near Jersey and is filing herewith a certificate evidencing to corporate existence. Second: That the name and address of to Registered Agent in said State of Delaware upon whom service of process nay be bad is: The Corporation Treat Company,_______ Corporation Trust Center, 120$ Qwnge Street, Wilmingtoo, Delaware 19801_______ Third: That the assets of said corporation are $ 732,765,000 and the liabilities thereof arc S iQ5,ou,oqQ . The assets and liabilities indicated are as ofa date within six months prior to the filing date of this Certificate. Fourth: That the business which it proposes to do in the State of Delaware is as follows: Distribution and wholesale marketing ofmaintenance, repair and operations ("MKO") products, Fifth: That the business which it proposes to do in the state of Delaware is tile business it is authorized to do in the jurisdiction of its incorporation. In Witness Whereof, said corporation has caused this Certificate to be signed on to behalf this *7^ day of Novembert20 06 . TByttmQrim (Aufti icer) Name; Thomas J. Towavaincc, CFO (Typed or Printed) V' 'c pa STATE OFNEW JERSEY DEPARTMENT OF TREASURY SHORT FORM STANDING INTERUm BRANDS, INC. 0100077767 With the Previous or Alternate Name PROFESSIONAL SOLUTIONS, INC. (Alternate Name) WLMAJR SUPPLY CO* INC. (Previous Name) WllMAR INDUSTRIES, INC (Previous Name) COPPERmiD SUPPLY (Alternate Name) COPPERHELD (Alternate Name) COPPERHEW CHIMNEY SUPPLY (Alternate Name) I, the Treasurer of the State of New Jersey, do hereby certify that the above-named New Jersey Domestic Profit Corporation was registered by this office on December 26,1978. As cfthe date ofthis certificate, said business continues as an active business in good standing in the State ofNew Jersey, and its Annual Reports are current Ifurther certify that the registered agent and registered office are: Corporation Trust Company 820 Bear Tavern Road West Trenton, N] 08628 0000 Continued m next page... Corporate Headquarter 801 Wast Bay 8tre*t JactwonvHb, FL 32204 CONSIST TO USE OF NAME Dear Sir or Madam: Interline Brands, Inc., a corporation organized under die laws of the State of Delaware, hereby consents to the qualification of its wholly-owned subsidiary. Interline Brands, Inc., a corporation organized under the laws of the State of New Jersey, in the State of Delaware and its use of the name "Interline Brands, Inc." in the State of Delaware. IN WITNESS WHEREOF, die said Interline Brands, Inc., a Delaware corporation, has caused this consent to be executed by its ChiefFinancial Officer this SL day ofNovember, 2006. INTERLINE BRANDS, INC. a Delaware corporation By: jy Thomas J. Tossavainen ChiefFinancial Officer CERTIFICATE OF CHANGE AND SUBSTITUTION OF REGISTERS) AGENT OF interline Brands, Inc. It is herdby certified that: 1. The name of the corporation (hereinafter called the "corporation") is Interline Brands, Inc. 2. The corporation is incorporated under the laws ofNew Jersey. 3. The corporation was authorized to do business in the State ofDelaware on November 8,2006. 4. The name and address of the registered agent ofthe corporation within the State ofDelaware are hereby changed to: National Registered Agents, Inc. 160 Greentree Drive, Suite 101 Dover, Delaware 19904 County ofKent ` of Delaware are hereby revoked. Signed on September 11,2008. State of Delavaxe Secretary of State Division of Corporations Delivered 11:10 Mi 11/25/2008 mSD 10:56 Mi 11/25/2008 SRV 081143742 - 4259954 SHE lien Solutions Search Results Deliver To: Visit www.iLienonline.com and view your results electronically. ATTN: PAMELA OLSEN JENNIFER VILLA From: KAZAN,MCCLAIN,ABRAMS,FERNA CT LIEN SOLUTIONS SACRAMENTO NDEZ,LYONS, FARISSE 1232 Q STREET & GREENWOOD A PROF. LAW CORP SACRAMENTO CA 95811 Ph: 8003442382 Ex: 0221 171 TWELFTH ST., THIRD FL. Fax: 8007804795 OAKLAND,CA 94607 Email: udssorders@uccdirect.com Ref: RONALD BLATT Date: Client #: Subject: Jurisdiction: Search Type: 20-Nov-2009 04:18PM Order#: 20896958 251397 INTERLINE BRANDS, INC. FKA WILMAR INDUSTRIES NJ Secretary of State Certified Charter Documents with All Amendments/Mergers Item #: 6 Through Date: 19-Nov-2009 Results: Certified Copies Attached Comments: Disclaimer: CT Lien Solutions provides the best copies available from the jurisdiction. This report contains information compiled from sources which CT Lien Solutions considers reliable but does not control. CT Lien Solutions in no way undertakes or assumes any part of the customer's business, legal or similar risks, and does not guarantee the accuracy, completion or timeliness of the information provided, and shall not be liable for any losses or injuries whatever resulting from any contingency beyond its control, or from negligence, regardless of the cause.________________________________________________________________________ STATE OF NEWJERSEY DEPARTMENT OF TREASURY FILING CERTIFICATION (CERTIFIED COPY) INTERLINE BRANDS, INC. I, the Treasurer of the State ofNew Jersey, do hereby certify, that the above named business didfile and record in this department the below listed documents) and that theforegoing is a true copy of the Certificate OfMergers Restated Certificate Amendments Name Change And Correction as the same is takenfrom and compared with the original(s) filed in this office on the date set forth on each instrument and now remaining on file and of record in my office. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this 19th day ofNovember, 2009 Certificate Number: 115787513 Verify this certificate online at https://wwwl.state.nj.us/TYTR_StandingCert/JSP/Verfy_Cert.jsp R. David Rousseau State Treasurer Page 1 of 1 . CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF WILMAR INDUSTRIES, INC. frwC^ FILED To: The Secretary ofState State of New Jersey * . WAY 1 0 2000 State Treasurer Roland MachoM Pursuant to the provisions of Section 14A:9-2(4) and Section 14A;9-4(3) ofthe New Jersey Business Corporation Act, the undersigned corporation hereby executes die following Certificate of Amendment to its Certificate ofIncorporation: 1. The name of the corporation is Wilmar Industries, Inc. 2. The following amendment to the Certificate ofIncorporation was approved and adopted by unanimous written consent of the board of directors as ofthe 27* day of March, 2000: RESOLVED, that Article 4 of the Certificate oflncorporation ofthe Company be amended to read as follows: "4. The total number of shares of stock that the Corporation shall have authority to issue is Fifty-five Million One Hundred Sixty-Four Thousand Three Hundred Eighty-four (55,000,000) ofwhich Fifty Million (50,000,000) shall be Common Stock, no par value, and Five Million (5,000,000) ofwhich shall be Preferred Stock, par value one cent ($.01) per share. The Preferred Stock authorized by this Certificate oflncorporation may be issued from time to time in one or more series. Hie Board ofDirectors of the Corporation shall have the full authority permitted by law to establish one or more series and the number of shares constituting each such series and to fix by resolution full, limited, multiple or fractional, or no voting rights, and such designations, preferences, qualifications, privileges, limitations, restrictions, options, conversion rights and other special or relative rights of any series of the Preferred Stock that may be desired. Subject to the limitation on the total number of shares of Preferred Stock which the Corporation has authority to issue hereunder, the Board ofDirectors is also authorized to increase or decrease the number of shares of any series, subsequent to the issue of that series, but not below the number of shares of such series then outstanding. In case the number ofshares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption ofthe resolution originally fixing the number of shares of such series." l-PH/115591*.1 TOTAL P.02 / 3. The resolution attached hereto as Appendix "A" (the "Designating Resolution Amendment") amends tile resolution establishing and designatingA series ofshares and fixing and determining the relative rights and preferences thereof (which was originally adopted on March 6,1995). 4. The Certificate ofIncorporation ofthc corporation is hereby amended so that the designation and number of shares ofSeries A SeniorPreferred Stock, Series B Junior Preferred Stock and Class C Preferred Stock (the "Preferred Stock") described in the Designating Resolution Amendment, and the relative rights, preferences and limitations of such Preferred Stock, are as stated in the Designating Resolution Amendment. IN WITNESS WHEREOF, the undersigned corporation has caused this Certificate of Amendment to the Certificate of Incorporation to be executed in its name by the undersigned officer is of the 4!h day o F May, 2000. WILMAS. INDUSTRIES, INC . : -------i*Sjr35n;~ 1 William , Sanford II Senior Vice President and ChiefFinancial Officer zste ess ess BUI SOI -liSi-lpu! I riftY-09-2000 10:53 ML&B PRINCETON 16099196639 . _ APPENDIX A DESIGNATING RESOLUTION AMENDMENT WILMAR INDUSTRIES, INC. RESOLVED, that the number of Shares of the Company's authorized Preferred Stock designated "Series A Senior Preferred Stock" and "Series B Junior Preferred Stock" shall be reduced to zero as set forth in Exhibit "A" hereto; and it is further RESOLVED, that one hundred sixty-four thousand three hundred eighty-four (164,384) shares ofthe Company's authorized Preferred Stock shall be designated "Class C Preferred Stock," and that such Class C Preferred Stock shall have such voting rights, designations, preferences, qualifications, privileges, limitations, restrictions, options, conversion rights and other speciaLor relative rights as may be set forth in Exhibit "A" hereto. . . ' EXMBITA DESCRIPTION OF SERIES A SENIOR PREFERRED STOCK, SERIES B JUNIOR PREFERRED STOCK AND CLASS C PREFERRED STOCK A. SERIES A SENIOR PREFERRED STOfcK 1. Designation and Amount. The shares of such series ofPreferred Stock shall be designated as "Series A Senior Preferred Stock" (the "Series A Preferred Stock'*) and the number of shares constituting such series shall be zero. B. SERIES B JUNIOR PREFERRED STOCK 1. Designation and Amount. The shares of such series ofPreferred Stock shall be designated as "Series B Junior Prefeired Stock" (the "Series B Preferred Stock") and fee number o f shares constituting such series shall be zero. C. CLASS C PREFERRED STOCK 1. Designation and Amount. The shares of such series ofPreferred Stock shall be designated as "Class C Prefeired Stock" (the "Class C Preferred Stock") and the number of shares constituting such series shall be 164,384. 2. Dividends. If the Company's board of directors declares or the Company pays any dividends with respect to the Common Stock (whether payable in cash, securities or other property except for dividends payable solely in shares of Common Stock), the Company shall be deemed to have declared with respect to all shares of Class C Preferred Stock outstanding, and the Company shall pay to each holder of shares ofClass C Prefeired Stock, dividends in an amount equal to the product of (i) fee amount of dividends so declared or paid with respect to each share of Common Stock and (ii) the number of shares of Common Stock (including fractions thereof) issuable upon conversion ofthe shares of Class C Preferred Stock, at a rate of one share of Common Stock for one share of Class C Preferred Stock. 3. Optional Conversion. (a) Right to Convert Each share of Class C Preferred Stock shall be convertible, at fee option of fee holder thereof, at any time and from time to time, into fully paid and nonassessable shares of Common Stock at a rate of one share of Common Stock for one share of Class C Preferred Stock. Upon a Liquidation (as defined in Section C.4 below), fee conversion rights shall terminate at fee close ofbusiness on fee first full day preceding fee date fixed for the payment of any amounts distributable on Liquidation to the holders of shares of Class C Preferred Stock. i-w/iisssis.i 1 MAY-09-2000 10:53 ML8.B PRINCETON (b) -Mechanics of Conversion. (i) In order for a holder of shares of Class C Preferred Stock to convert shares of Class C Preferred Stock into shares of Common Stock, such holder shall surrender the certificate or certificates for such shares of Class C Preferred Stock at the office of the transfer agent for the shares of Class C Preferred Stock (or at the principal office of the Company if the Company serves as its own transfer agent), together with written notice that such holder elects to convert all or any number ofthe shares of the Class C Preferred Stock represented by such certificate or certificates. Such notice shall state such holder's name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Common Stock to be issued. Ifrequired by the Company, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments oftransfer, in form satisfactory to the Company, duly executed by the registered holder or his or its attorney-in-fact duly authorized in writing. The date of receipt of such certificates and notice by the transfer agent (or by flic Company if the Company serves as its own transfer agent) shall be the conversion date (the "Conversion Date"). The Company shall, as soon as practicable after the Conversion Date, issue and deliver to such holder of shares of Class C Preferred Stock, or to his or its nominees, a certificate or certificates for the number of shares of Common Stock to which such holder shall be entitled, together with cash in lieu of any fraction of a share. If the number of shares of Class C Preferred Stock represented by the certificates for the Class C Preferred Stock submitted for conversion shall be greater than the number of shares of Class C Preferred Stock being converted, the Company shall, when delivering the shares of Common Stock upon any such conversion, issue and deliver to the holder thereof a new certificate representing the number of shares of Class C Preferred Stock which shall not have been converted. Such conversion shall be deemed to have been made immediately prior to the close ofbusiness on the date of such surrender of the shares of Class C Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon, such conversion shall be treated for all purposes as file record holder or holders of such shares of Common Stock as of such date. (ii) The Company shall, at all times when the Class C Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued stock, for the pmpose of effecting the conversion of the shares of Class C Preferred Stock, such number of its duly authorized shares ofCommon Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Class C Preferred Stock. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of Class C Preferred Stock, in addition to such other remedies as shall be available to the holder of such shares of Class C Preferred Stock, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. (iii) Upon any such conversion, no payment shall be made of any declared and unpaid dividends on the shares of Class C Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion. i-vH/iisssifi.i 2 MAY-09-2000 10:53 ML&B PRINCETON 16099196639 P (Iv) All shares of Class C Preferred Stock that shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, ifany, to receive notices and to vote, shall immediately cease and terminate on the Conversion Date, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor. Any shares of Class C Preferred Stock so converted shall be retired and'canceled and shall not be reissued, and the Company may from time to time take such appropriate action as may be necessary to eliminate the authorized Class C Preferred Stock or reduce the authorized number thereofas may be appropriate accordingly. (c) No Impairment. The Company will not, by amendment of its Certificate of InCompany or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale ofsecurities or any other voluntary action, avoid or seek to avoid the observance or performance ofany ofthe terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out ofall the provisions of this Section C.3 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of the shares of Class C Preferred Stock against impairment. 4. Liquidation. In the event ofany liquidation, dissolution or winding-up of the Company, whether voluntarily or involuntarily (a "Liquidation"), before any distribution or payment may be made with respect to any Common Stock, holders of each share of Class C Preferred Stock shall be entitled to be paid out of the assets ofthe Company available for distribution to holders ofthe Company's capital stock of all classes, whether such assets are capital, surplus, or capital earnings, an amount in cash equal to S0.01 per share of Class C Preferred Stock (which amount shall be subject to equitable adjustment whenever there shall occur a stock split, combination, reclassification or other similar event involving the Class C Preferred Stock), plus all accrued and unpaid dividends thereon, whether or not declared, since the date of issuance up to and including the date full payment shall be tendered to the holders of the Class C Preferred Stock with respect to such Liquidation (the "Class C Liquidation Amount"). Ifupon any such Liquidation, the assets ofthe Company to be distributed among the holders ofdie Class C Preferred Stock are insufficient to permit payment to such holders of the aggregate amount which they are entitled to be paid, then the entire assets of the Company to be distributed to such holders will be distributed ratably among such holders in proportion to the number ofshares of Class C Preferred Stock owned by each holder. After the payment of the Class C Liquidation Amount shall have been made in full to the holders of the Class C Preferred Stock or funds necessary for such payment shall have been set aside by the Company in trust for the account of holders ofthe Class C Preferred Stock so as to be available for such payments, the holders of the Class C Preferred Stock shall be entitled to no fbrther participation in file distribution of the assets of the Company, and the remaining assets of 3 MAY-09-2000 10:54 ML8J3 PRINCETON 16099196639 P70B/09 the Company legally available for distribution to its stockholders shall be distributed among die holders of other classes of securities ofthe Company in accordance with their respective terms. (a) Treatment ofReorganizations. Any merger or consolidation ofthe Company with or into another corporation, or the sale of all or substantially all ofthe Company's properties and assets to any person or any transaction or series ofrelated transactions in which more than fifty percent (50%) of the outstanding voting securities ofthe Company is sold or assigned (any ofwhich events is herein referred to as a "Reorganization "), shall be regarded as a liquidation, dissolution or winding up ofthe affairs ofthe Company within the meaning of this Section 3 unless the holders of at least a majority ofthe then outstanding shares of Class C Preferred Stock elect to have such events not deemed to be a liquidation, dissolution or winding up of the Company by giving written notice thereof to the Company at least 10 days before the effective date of such event. 5. Voting Power. The holders of the Class C Preferred Stock shall be entitled to notice of all shareholders1 meetings in accordance with the Company's bylaws and shall be entitled to vote on all matters submitted to the shareholders for a vote together with the holders ofthe Common Stock and the other classes ofvoting stock entitled to vote thereon, voting together as a single class, with each share of Class C Preferred Stock entitled to one vote. 6. Notices of Record Date. In the event of (a) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereofwho are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right, or , (b) any capital reorganization ofthe Company, any reclassification or recapitalization of the capita] stock of the Company, any merger of the Company, or any transfer of all or substantially all of the assets of the Company to any other corporation, or any other entity or person, or (c) any voluntary or involuntary dissolution, liquidation or winding up ofthe Company, then and in each such event the Company shall mail or cause to be mailed to each holder of Class C Preferred Stock a notice specifying (I) the date on which any such record is to be taken for the purpose of such dividend, distribution or right and a description of such dividend, distribution or right, (ii) the date on which any such reorganization, reclassification, recapitalization, transfer, merger, dissolution, liquidation or winding up is expected to become effective and (iii) the time, if any, that is to be fixed, as to when the holders ofrecord of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such reorganization, reclassification, recapitalization, transfer, merger, dissolution, liquidation or winding up. Such notice shall be mailed at least ten (10) business days prior to the date specified in such notice on which such action is to be taken. 1-PH/11S591S.1 4 mY-03r2000 10*54 MLSB PRINCETON 1609915663$ ':" P.89/89 -~.Z 77 *k 7. No Reissuancc ofClass C Preferred Stock. No share or shares ofClass C Preferred Stock acquired by the Company by reason ofredemption, purchase, conversion or otherwise shah be reissued, and all such shares shall be cancelled, retired and eliminated from the shares which the Company shall be authorized to issue. The Company may from time to time take such appropriate corporate action as may be necessary to reduce the authorized number of shares ofthe Class C Preferred Stock accordingly. i-PH/iissm.i 5 TOTAL P.09 VlflY-15 2000 12:35 FR PUiRU8.G 212 373 2753 TO 815135003-160953 P. 02-'08 CERTIFICATE OF MERGER OF DP| G/ WM ACQUISITION, INC.; ___________ A New Jersey corporation V rlfcS? FIJJ' " )' WITH AND lOC --LALl.' J INTO WILMAR INDUSTRIES, INC, A New Jersey corporation M "/ 1 5 -''fT J77'7_7 To: The Department op Treasury State of New Jersey Slate Treasure? Roland Maeltold Pursuant to the provisions of Sections 14A:10-1 and 14A:10-4.1 ofthe New Jersey Business Corporation Act, the undersigned corporations hereby execute the following Certificate ofMerger. AKIICUSlOHE WM Acquisition, Inc., a corporation organized and existing under the laws of the State of New Jersey (Corporate No. 0100801855) (the "Merged Corporation") shall be merged with and into Wilmar Industries, Inc., a corporation organized and existing under the laws ofthe State ofNew Jersey (Corporate No. 0100077767), which is hereinafter designated as the "Surviving Corporation." The address ofthe Surviving Corporation's registered office in the State ofNew Jersey is 303 Harper Drive, Moorestown, New Jersey 08057, and the name of its registered agent at such address is Fred B. Gross. The Secretary of State is appointed as agent to accept service ofprocess and to forward the same to the address above. ARTICLE TWO The Amended and Restated Agreement and Plan ofMerger and Recapitalization (the "Plan of Merger") attached hereto as ExhibitA was approved by each of the undersigned corporations in the manner prescribed by the New Jersey Business Corporation Act. ARTICLE THREE The dates of approval by the shareholders of each corporation ofthe Plan of Merger are: WM Acquisition, Inc. Wilmar Industries, Inc. May 16,2000 May 15,2C00 ARTICLE FOUR The number ofshares ofcommon stock ofthe Surviving Corporation entitled to vote on the Plan ofMerger was 12,408,226 S' qswi ITMura4M d 5 T W <7 (H VS 1 S'f' 0/ooo^^i7 'MAY 15 2000 12:35 FR 'RJRU&G 212 373 2753 TO 815135003-160953 P.03/08 The number of shares of common stock ofthe Merged Corporation entitled to vote on the Plan ofMerger was 977,444. The shares of Senior Preferred Stock of the Merged Corporation were entitled to vote as a class on the Plan of Merger, and the number ofshares of such Senior Preferred Stock entitled to vote was 12,902,257. ARTICLE FIVE The number of shares voted for and against the Plan of Merger, respectively, in each class entitled to vote, were: Corporation WM Acquisition, Inc. WM Acquisition, Inc. Wilmar Industries, Inc. Tntal Shares Voted Fot 977,444 12,902,257 6,654,252 Total Shares Voted Against -0 -0 8,769 Class or Series Common Senior Preferred Common ARTICLE SIX Pursuant to the terms of the Plan ofMerger, the certificate of incorporation of the Surviving Corporation shall be the certificate of incorporation of the Merged Corporation, with the name of the corporation in such certificate of incorporation changed to "Wilmar Industries, Inc." ARTICLESEVEN This Certificate ofMerger shall become effective immediately upon filing. i-pR/uomu '2- IN WITNESS WHEREOF, each of the undersigned corporations has caused this Certificate of Merger to be executed in its respective name by its duly authorized officer as of the 16th day of May, 2000. WM ACQUISITION, INC. Print Name: Drew Sawyer Print Title: Vice President WILMAR INDUSTRIES, INC. Print N^me: Fred B. Gross Print Title: Vice President, Corporate Development 1-PR/I20844I.4 -3- Exhibit A Plan of Merger l-PR/1208441.4 AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER AND RECAPITALIZATION between WM ACQUISITION, INC. and WILMAR INDUSTRIES, INC. {PH/U96659.1 TABLE OF CONTENTS RECITALS....................................................................................... I ARTICLE 1THE MERGER.................. 2 Section 1.1 The Merger........................................................................................................ 2 Section 1.2 Closing......... -..................................................................................................2 Section 1.3 "Effective Time.................................................................................................... 2 Section 1.4 The Certificate of Incorporation........................................................................2 Section 1.5 The By-Laws......................................................................................................3 Section 1.6 Directors of Surviving Corporation............................................................. ...3 Section 1.7 Officers of Surviving Corporation.................................................................... 3 CONVERSION OR CANCELLATION OF SHARESIN THE MERGER AND THE RECAPITALIZATION EXCHANGE....................................................................................... 3 Section 2.1 Conversion or Cancellation of Shares and the Recapitalization Exchange.. 3 Section 2.2 Payment for Shares........................................................................................... 4 Section 2.3 Transfer of Shares After the Effective Time......... .........................................5 Section 2.4 Stock Options......... ........................ 5 ARTICLE 3REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................5 Section 3.1 Organization and Qualification; Subsidiaries................................................... 6 Section 3.2 Certificate of Incorporation and By-Laws.......................................... 6 Section 3.3 Capitalization.................... 7 Section 3.4 Authority................................................................................................. 8 Section 3.5 No Conflict.......................................... 8 Section 3.6 Required Filings and Consents......................................................................... 9 Section 3.7 Permits; Compliance with Law.................. 9 Section 3.8 SEC Filings; Financial Statements............ ........................ 10 Section 3.9 Absence of Certain Changes or Events.......................................................... 11 Section 3.10 Employee Benefit Plans; Labor Matters................................. 12 Section 3.11 Contracts; Debt Instruments...........................................................................14 Section 3.12 Litigation.......................................................................................................... 15 Section 3.13 Environmental Matters...................................................................................15 Section 3.14 Intellectual Property....................................................................................... 15 -i - Section 3.15 Section 3.16 Section 3.17 Section 3. IS Section 3.19 Section 3.20 Section 3.21 Section 3.22 Taxes................................................................................................................. 17 Non-Competition Agreements........................................... 17 Assets.............. ..................................................................................................17 Opinion ofFinancial Advisor......................................... ...............................18 Brokers................................ 18 Certain Statutes............................................................................................... 18 Information.......................................................................................................18 Vote Required.............................. 18 ARTICLE 4REPRESENTATIONS AND WARRANTIESOF MERGER SUB........................... 19 Section 4.1 Organization.................................................................................................... 19 Section 4.2 Binding Obligation..............................................................................................19 Section 4.3 No Authorization or Consents Required......................................................19 Section 4.4 Financing Commitments....................................................................................20 Section 4.5 No Conflict.........................................................................................................20 Section 4.6 Information........................................................................................................20 Section 4.7 Brokers............................................................................................................. 21 ARTICLE 5COVENANTS........ .............. ..................................................................... .....................21 Section 5.1 Conduct ofBusiness of the Company................. 21 Section 5.2 Other Actions.................................................................................................... 23 Section 5.3 " Notification of Certain Matters..................................................................... 23 Section 5.4 Proxy Statement............................................................... ...............................24 Section 5.5 Stockholders' Meeting......................................................................................25 Section 5.6 Access to Information; Confidentiality........................................................... 26 Section 5.7 No Solicitation.................... 26 Section 5.8 Directors'and Officers'Indemnification and Insurance...............................28 Section 5.9 Reasonable Best Efforts...........................,......................................................29 Section 5.10 Consents; Filings; Further Action.................................................................... 29 Section 5.11 Public Announcements..................................................................................... 30 Section 5.12 Stock Exchange Listings and De-Listings.......................................................30 Section 5.13 Expenses........................................................................................................... 30 Section 5.14 Takeover Statutes............................................................................................. 30 Section 5.15 Employee Benefit Arrangements..................................................................... 31 Section5.16 Issuance of Class C Preferred Stock..............................................................31 Section 5.17 Solvency Matters.............................................................................................. 31 l-PH/n9MS.l - ii - ARTICLE 6C0NDITI0NS.......................................................,........................................................ 32 Section 6.1 Conditions to Each. Party's Obligation to Effect the Merger.......................32 (a) Stockholder Approval..................... ............... ............................................................32 (b) Governmental Consents................................................................................................32 (c) Litigation.............................................................................................................. 32 Section 6.2 Conditions to Obligations ofMerger Sub...................................................... 32 (a) Representations and Warranties............................ 32 (b) Performance of Obligations ofthe Company............................................................. 33 (c) Material Adverse Effect.......................... -33 (d) Finandng......................................................... 33 (e) Consents Under Agreements.......................................................................................33 (f) Company Voting Agreement.......................................................................................33 Section 6.3 Conditions to Obligation ofthe Company.....................................................33 (a) Representations and Warranties.................................................................................. 33 (b) Performance of Obligations ofMerger Sub................................................................34 (c) Material Adverse Effect................ 34 (d) Consents Under Agreements..................................... 34 ARTICLE 7TERM3NATION................................................................................................ 34 Section 7.1 Termination.........................................................................................................34 Section 7.2 Effect of Termination........................................................................................ 36 Section 7.3 Amendment........................................................................................................ 36 Section 7.4 Waiver................................................................................................................. 36 Section 7.5 Expenses following Termination............................................... 36 ARTICLE 8MISCELLANEOUS.........................................................................................................38 Section 8.1 Certain Definitions............................................................................................. 3 8 Section 8.2 Non-Survival ofRepresentations, Warranties and Agreements................... 39 Section 8.3 Counterparts........................................................................................ 39 Section 8.4 Governing Law and Venue; Waiver ofJury Trial.......................................... 39 Section 8.5 Notices............................................................. 40 Section 8.6 Entire Agreement................................................................................. -........ 41 Section 8.7 No Third Party Beneficiaries............................................................................ 41 Section 8.8 Severability.............................. 42 Section 8.9 Interpretation..................................................... 42 Section 8.10 Assignment.............. ........................................................................... 42 l-PK/U966S9'l - iii INDEX OF DEFINED TERMS Term Acquisition Agreement.............. ............................................. affiliate............................................................... ....... ............... Agreement......................... ........................................................ Benefit Plan............................................................................... business day.................. .............*............................................... Certificate ofMerger............................................................... Class C Preferred Stock........................................................... Claims............ ............................ .............................................. Closing.................. .................................................................... Closing Date.............................................................................. COBRA................... ................................................................ Common Stock......................................................................... Company................................................................................... Company Benefit Plan............................................................ Company Charter Documents................................................ Company Disclosure Letter..................................................... Company Financial Advisor.................................................... Company Permits.................... ................................................ Company Principal.................................................................... Company SEC Reports............................................................ Company Stockholders Meeting............................................ Company Subsidiaries.............................................................. Company Voting Agreement............................ ...................... Confidentiality Agreement...................................................... control........ ............................................................................... controlled by.............................................................................. controlling................................................................................. Debt Financing Commitments................................................. Effective Time......................................... ................................. Employee..................... ........................................... .............. Environmental Law.................................................................. Section 5.7(e)(ii) 8.1(a) Title 3.10(a) 8.1(b) 1.3 Recitals 3.12 1.2 1.2 3.10(a) Recitals Title 3.10(a) 3.2 Article 3 (introduction) 3.18 3.7 Recitals 3.8(a) 5.4 3.1(a) Recitals 5.6 8.1(a) 8.1(a) ...... 8.1(a) _ 4.4 1.3 3.10(a) 3.13 1-PH/U9fi659.1 vi - Term Section Equity Financing Commitments........... .................................. 4.4 ERISA........................................................................... ............ 3.10(a) Exchange Act............................................................................ 3.6 Expenses................................................................................... 7.5(a) GAAP........................................................................................ 3.8(b) Governmental Entity................................................................ 3.6 group............................. ."........................................................... 8.1(e) Hazardous Substance............................................................... 3.13 HSR Act.................................................................................... 3.6 including...................................................................... .............. 8.1(c) Indemnified Parties........... ....................................................... 5.8(a) Intellectual Property................................................................ 3.14(a) knowledge...............r................................................................. 8.1(d) Law.................................... ........................................................ 3.5(a)(ii) Liens.......................................................... ............................... 3.3 Material Adverse Effect on the Company.............................. 3.1(a) Material Assets............................................ ........................... . 3.17(a) Merger...................................................................................... Recitals Merger Consideration......................................... .................... 2.1(a) Merger Sub............... ............................................................... Title Merger Sub Material Adverse Effect...................................... 4.1 NASD........................................................................................ 5.4(a) NJBC......................................................................................... Recitals Option........................................................................................ 2.4 Option Plans.............................................................................. 2.4 Other Filings......................................... .................................... 5.4(a) Paying Agent............................................................................ 2.2 PBGC......................................................................................... 3.10(a) Permitted Liens......................................................................... 3.17 person........................................................................................ 8.1(e) Preferred Stock...................................................... ............... 3.3(a) Proxy Statement....................................................................... 5.4(a) Representatives......................................................................... 5.6 1-PK/U96GS9.1 - vii - Xsm Requisite Company Vote......................................................... Retiree Welfare Plan.................................... ........................... SEC............................................................................................. Securities Act............. ......... .................................................... Senior Preferred Stock............................................. ............... Shares.......... ....................................... ................................ . Software........................ ......................................................... subsidiary....................................................................... .......... subsidiaries.......................... .................... ........... ...... ............. Superior Proposal;............ .............................. ........................ Surviving By-Laws........ .......................................................... Surviving Charter................................. .................................. Surviving Corporation.......... ........ ......................................... Systems................. .............. ................. ................................ . Takeover Proposal................................ .................................. Takeover Statute...................... .......... ....... ...... ............... Taxes................... .......................... ............................................ Technology............................................................................ . Terminating Company Breach................................................. Terminating Merger Sub Breach.................... .................... . Termination Amount...................... ........................................ . under common control with.......... ............................... ...... . Welfare Plan.............................................................................. Year 2000 Compliant........... ....................................... ............ Section 3.4(a) ......................... 3.10(a) 3,8 3.8 2.1(b) .................. 2.1(a) 3.14(a) 8.1(f) 8.1(f) S.7(e)(i) l.S 1.4 ....... 1.1 3.14(c) 5.7(a) 3.20 3.15 3.14(a) 7.1(f) ............... _ 7.1(g) 7.5(b) 8.1(a) 3.10(a) ....... . ............ 3.14(c) viii AMENDED AND RESTATED AGREEMENT AND PLAN OP MERGER AND RECAPITALIZATION AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER AND RECAPITALIZATION (the "Agreements, dated as ofMarch 27,2000 by and between WM Acquisition, Inc., a New Jersey corporation (the "Merger Sub"). and Wilmar Industries, Inc., a New Jersey corporation (the "Company"). RECITALS: WHEREAS, Merger Sub and the Company have previously entered into an Agreement and Plan ofMerger and Recapitalization, dated December 22, 1999 (the "Original Agreement"). . WHEREAS, the respective boards of directors ofeach ofthe Merger Sub and the Company each have approved this Agreement pursuant to which, among other things. Merger Sub will be merged with and into the Company (the "Merger") on the terms and conditions contained herein and in accordance with the New Jersey Business Corporation Act (the "NJBC") WHEREAS, concurrently with the execution ofthe Original Agreement, as a condition to the willingness ofMerger Sub to enter into the Original Agreement, (i) Mr. William Green (the "Company Principal") entered into a Voting and Exchange Agreement with Merger Sub and the Company (the "Company Voting Agreement"), which provided for, among other things, the agreement ofthe Company Principal to vote all shares of the Company's common stock, no par value (the "Common Stock"), beneficially owned by him on the date thereofin favor of approval and adoption ofthe Original Agreement and the Merger, and to exchange certain shares of Common Stock owned by him for newly issued shares of Class C Preferred Stock, par value $.10 per share, ofthe Company (the "Class C Preferred Stock") prior to the Merger, and (E) the Company Principal delivered to the Merger Sub an irrevocable proxy to vote such shares as described above. X-PH/U966S9.1 WHEREAS, Merger Sub and the Company wish to amend and restate the Original Agreement as provided herein in order to reflect the statutory requirement of shareholder approval necessary for the Merger. WHEREAS, certain terms used in this Agreement which are not capitalized have the meanings specified in Section 8.1. WHEREAS, the Company and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement. NOW,"THEREFORE, in consideration of the premises, and ofthe representations, warranties, covenants and agreements contained in this Agreement, the parties agree as follows: ARTICLE 1 THE MERGER Section 1.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.3), Merger Sub shall be merged with and into the Company and the separate corporate existence ofMerger Sub shall cease. The Company shall be the surviving corporation in the Merger (sometimes referred to as the "Surviving Corporation"'! and shall continue to be governed by the laws ofNew Jersey, and the separate corporate existence ofthe Company with all its rights, privileges, immunities, powers, purposes and franchises, both public and private, shall continue unaffected by the Merger. The Merger shall have the effects set forth in Section 14A: 10-6 ofthe NJBC. Section 1J2 Closing. The closing ofthe Merger (the "Closing") shall take place (a) at the offices ofPaul, Weiss, Rifldnd, Wharton & Garrison, New York, New York at 10:00 a.m. on the third business day after the last to be fulfilled or waived ofthe conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver ofthose conditions) shall be satisfied or waived in accordance with this Agreement or (b) at such other place and time and/or on such other date as the Company and the Merger Sub may agree in writing (the "Closing Date"). Section 1.3 Effective Time. As soon as practicable following the Closing, the Company and Merger Sub will cause a Certificate ofMerger (the "Certificate of Merger") to be l-PH/U 95659.1 signed, acknowledged and delivered for filing with the Secretary ofthe State ofNew Jersey as provided in Section 14A:10-4.1 oftheNJBC. The Merger shall become effective at the time when a Certificate ofMerger has been duly filed with the Secretary of State ofthe State ofNew Jersey or such other time as shall be agreed upon by the parties and set forth in the Certificate of Merger (the "Effective Time"! Section 1.4 The Certificate of Incorporation. The certificate ofincorporation ofthe Surviving Corporation shall be amended and restated in the form of the certificate of incorporation ofMerger Sub in effect immediately prior to the Effective Time (the "Surviving Charter"1), until duly amended as provided in the Surviving Charter or by applicable law, except that, as ofthe Effective Time, Article I of such certificate ofincorporation shall be amended to read as follows: "The name of the corporation is Wilmar Industries, Inc." Section 1.5 The By-Laws. The by-laws ofthe Surviving Corporation shall be amended and restated in the form ofthe by-laws ofMerger Sub in effect at the Effective Time (the "Surviving Bv-Laws"). until duly amended as provided in the Surviving By-Laws or by applicablelaw. Section 1.6 Directors of Surviving Corporation. The directors ofMerger Sub at the Effective Time shall, from and after the Effective Time, be the directors ofthe Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Surviving Charter and the Surviving By-Laws. , Section 1.7 Officers of Surviving Corporation. The officers of the Company at the Effective Time shall, from and after the Effective Time, be the officers ofthe Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Surviving Charter and the Surviving By-Laws. ARTICLE 2 CONVERSION OR CANCELLATION OF SHARES IN THE MERGER AND THE RECAPITALIZATION EXCHANGE 1-PH/1196659.I 3- Section 2.1 Conversion or Cancellation of Shares and the Recapitalization Exchange. The manner ofconverting, retaining or canceling shares ofthe Company and Merger Sub in the Merger shall be as follows: (1) At the Effective Time, except as otherwise provided in Section 2.1(c), each share ofCommon Stock issued and outstanding immediately prior to the Effective Time (other than Shares owned by Merger Sub, collectively, the "Shares"! shall by virtue ofthe Merger and without any action on the part ofthe holder thereof be converted into the right to receive, without Merest, an amount in cash (the "Merger Consideration"! equal to $18.25. All such Shares, by virtue ofthe Merger and without any action on the part ofthe holders thereof) shall no longer be outstanding and shall be canceled and retired and shall cease to east, and each holder ofa certificate representing any such Shares shall thereafter cease to have any rights with respect to such Shares, except the right to receive the Merger Consideration for such Shares upon the surrender of such certificate in accordance with Section 2.2. (2) At the Effective Time, each share ofClass C Preferred Stock issued and outstanding immediately prior to the Effective Time shall, by virtue ofthe Merger and without any action on the part ofthe holder thereof) shall be converted into (i) .5486558 shares of Common Stock and (ii) 1.7701344 shares of Cumulative Senior Preferred Stock, par value $0.01 per share ofthe Company (the "Senior Preferred Stock"! (3) At the Effective Time, each share ofCommon Stock issued and outstanding at the Effective Time and owned by Merger Sub, and each Share issued and held in the Company's treasury at the Effective Time, shall, by virtue ofthe Merger and without any action on the part ofthe holder thereof cease to be outstanding, shall be canceled and retired without payment ofany consideration therefor and shall cease to exist. (4) At the Effective Time, (i) each share of common stock, no par value, ofMerger Sub issued and outstanding immediately prior to the Effective Time shall, by virtue ofthe Merger and without any action on the part ofMerger Sub or the holders of such shares, be converted into one share of Common Stock and (ii) each share ofpreferred stock, par value $0.01 per share, ofMerger Sub issued and outstanding immediately prior to the Effective Time shall, by virtue ofthe Merger and without any action on the part ofMerger Sub or the holders ofsuch shares, be converted into one share of Senior Preferred Stock. l-PH/3S9.t Section 22 Payment for Shares. The Surviving Corporation shall make available or cause to be made available to the paying agent appointed by Merger Sub with the Company's prior approval (the "Paving Agent"! amounts sufficient in the aggregate to provide all funds necessary for the Paying Agent to make payments pursuant to Section 2.1(a) hereof to holders of Shares issued and outstanding immediately prior to the Effective Time. At the Effective Time, the Surviving Corporation shall instruct the Paying Agent to promptly, and in any event not later than three business days following the Effective Time, mail to each person who was, at the Effective Time, a holder ofrecord (other than Merger Sub) ofissued and outstanding Shares a form (mutually agreed to by Merger Sub and the Company) ofletter oftransmittal and instructions for use in effecting the surrender ofthe certificates which, immediately prior to the Effective Time, represented any of such Shares in exchange for payment therefor. Upon surrender to the PayingAgent of such certificates, together with such letter oftransmittal, duly executed and completed in accordance with the instructions thereto, the Surviving Coiporation shall instruct the Paying Agent to promptly, and in any event not later than three business days following receipt ofproperly tendered certificates and letters oftransmittal, pay to the persons entitled thereto a check in the amount to which such persons are entitled, after giving effect to any required tax withholdings. No interest will be paid or will accrue on the amount payable upon the surrender ofany such certificate. Ifpayment is to be made to a person other than the registered holder ofthe certificate surrendered, it shall be a condition ofsuch payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such payment shall pay any transfer or other taxes required by reason ofthe payment to a person other than the registered holder ofthe certificate surrendered or establish to the satisfaction ofthe Surviving Corporation or the Paying Agent that such tax has been paid or is not applicable. One hundred and eighty days following the Effective Time, the Surviving Corporation shall be entitled to cause the Paying Agent to deliver to it any firnds (including any interest received with respect thereto) made available to the Paying Agent which have not been disbursed to holders of certificates formerly representing Shares outstanding on the Effective Time, and thereafter such holders shall be entitled to look to the Surviving Corporation only as general creditors thereofwith respect to the Merger Consideration payable upon due surrender of their certificates. Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be liable to any holder ofcertificates formerly representing Shares for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law. Section 2.3 Transfer of Shares After the Effective Time. No transfer of Shares shall be made on the stock transfer books ofthe Surviving Corporation at or after the Effective Time. l-PH/1196659,1 -5- Section 2.4 Stock Options. Immediately prior to the Effective Time, each outstanding option to purchase shares of Common Stock (an "Option"-) granted under the Company's Amended and Restated 1995 Stock Option Plan and any similar plan or arrangement providing for the issuance ofoptions (collectively, the "Option Plans"-), whether or not then exercisable or vested, shall become fully exercisable and vested. At the Effective Time (A) each Option which is then outstanding shall be canceled and (B) in consideration ofsuch cancellation, and except to the extent that Meiger Sub and the holder ofany such Option otherwise agree, immediately following consummation ofthe Offer, the Company shall pay to such holders of Options an amount in respect thereofequal to the product of (x) the excess ofthe Merger Consideration over the exercise price thereof ifany, and (y) the number ofshares of Common Stock subject thereto (such payment to be net oftaxes required by law to be withheld with respect thereto). No payment shall be made with respect to any Option having a per share exercise price, as in effect at the Effective Time, equal to or greater than the Merger Consideration. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to Merger Sub that, except as set forth in the corresponding sections ofthe Disclosure Letter delivered to Merger Sub by the Company prior to the execution ofthis Agreement (the "Company Disclosure Letter"-): Section 3.1 Organization and Qualification; Subsidiaries. (1) Each ofthe Company and each subsidiary ofthe Company (collectively, the "Company Subsidiaries"-) is a corporation duly incorporated, validly easting and in good standing under the laws ofthe jurisdiction ofits incorporation or organization, as the case may be, and has the requisite power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where the failure to be so organized, existing or in good standing or to have such power, authority and governmental approvals, individually or in the aggregate, have not resulted and could not reasonably be expected to result in a Material Adverse Effect on the Company. Each of the Company and each Company Subsidiary is duly qualified or licensed to do business, and is in good standing, in eachjurisdiction where the character ofthe properties owned, leased or 1PH/U9665.l - 6 - operated by it or the nature ofits business makes such qualification or licensing necessary, except for such feilures to be so qualified or licensed and in good standing that, individually or in the aggregate^ have not resulted and could not reasonably be expected to result in a Material Adverse Effect on the Company. For purposes ofthis Agreement, "Material Adverse Effect on the Company" means any change in or effect on the business, assets, properties, results ofoperations or condition (financial or otherwise) ofthe Company or any Company Subsidiary that is or could reasonably be expected to be materially adverse to the Company and the Company Subsidiaries, taken as a whole, or that could reasonably be expected to materially impair the ability ofthe Company to perform its obligations under this Agreement or consummate the Merger and the other transactions contemplated hereby. (2) The Company Disclosure Letter sets forth a complete and correct list of all ofthe Company Subsidiaries, their respective jurisdictions oforganization and percentage ownership by the Company. Neither the Company nor any Company Subsidiary holds any interest in any person other than the Company Subsidiaries so listed. Section 3,2 Certificate of Incorporation and By-Laws. The copies ofthe Company's certificate ofincorporation and by-laws, each as amended through the date ofthis Agreement (collectively, the "Company Charter Documents"') that are incorporated by reference in, as exhibits to the Company's annual report on Form 10-K for the year ended December 25, 1998 are complete and correct copies ofthose documents. The Company Charter Documents and all comparable corporate organizational documents ofthe Company Subsidiaries are in foil force and effect The Company is not in violation ofany ofthe provisions ofthe Company Charter Documents. Section 3.3 Capitalization. (1) The authorized capital stock ofthe Company consists of 50,000,000 shares ofCommon Stock, 5,000,000 shares ofPreferred Stock, par value $0.01 per share, 129,450 shares of Series A Senior Preferred Stock, par value $0.01 per share and 105,914 shares ofSeries B Senior Preferred Stock, par value $0.01 per share (collectively, the "Preferred Stock"'). As ofthe date ofthis Agreement, (i) 12,407,826 shares ofCommon Stock were issued and outstanding, all ofwhich were validly issued and are fully paid, nonassessable and not subject to preemptive rights, (ii) 1,000,000 shares ofCompany Common Stock were held in the treasury ofthe Company and (iii) 1,502,166 shares of Common Stock were reserved for issuance 1-PK/U96559.1 -7- upon exercise ofOptions that are outstanding or available for grant. As of the date ofthis Agreement, no shares ofPreferred Stock are issued and outstanding. (2) As ofthe date ofthis Agreement, an aggregate of 1,135,376 Options granted by the Company under the Option Plans are issued and outstanding. Except for the Options, there are no options, warrants, conversion rights, stock appreciation tights, redemption rights, repurchase rights or other rights, agreements, arrangements or commitments of any character to which the Company is a party or by which the Company is bound relating to the issued or unissued capital stock ofthe'Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to issue or sell any shares of capital stock of or other equity interests in, the Company or any Company Subsidiary. The Company Disclosure Letter sets forth, as ofthe date ofthis Agreement, (x) the persons to whom Options have been granted and (y) the exercise price for the Options held by each such person. No consent ofthe holder of any Options is required in connection with the cancellation thereofpursuant to Section 2.4. (3) All shares ofCommon Stock subject to issuance, upon issuance prior to the Effective Time on the terms and conditions specified in the instruments under which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and will not be subject to preemptive rights. There are no outstanding contractual obligations ofthe Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares ofCommon Stock or any capital stock of any Company Subsidiary. Each outstanding share ofcapital stock of each Company Subsidiary is duly authorized, validly issued, fully paid, nonassessable and not subject to preemptive rights and each such share owned by the Company or a Company Subsidiary is free and clear of all security interests, liens, claims, pledges, options, rights offirst refusal, agreements, limitations on the Company's or such other Company Subsidiary's voting rights, charges and other encumbrances or any nature whatsoever (collectively, "Liens"! There are no outstanding contractual obligations ofthe Company or any Company Subsidiary to provide funds to, or make any investment (in the form ofa loan, capital contribution or otherwise) in, any Company Subsidiary that is not wholly owned by the Company or in any other person. Section 3.4 Authority. (1) The Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the Merger and the other transactions contemplated by this Agreement to be consummated by the Company. The execution and delivery ofthis Agreement by the Company and the consummation by the Company of such transactions have been duly and validly authorized 1-PH/U96SS9.1 -8- by all necessary corporate action and no other corporate proceedings on the part ofthe Company are necessary to authorize this Agreement or to consummate such transactions, other than, with respect to the Merger, the adoption ofthis Agreement by the affirmative vote ofa majority ofthe votes cast by the holders of shares ofCommon Stock entitled to vote at the Company Stockholders Meeting (the "Requisite Company Vote"'). This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming that this Agreement constitutes a valid and binding obligation ofthe other party, constitutes a legal, valid and binding obligation ofthe Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors' rights generally and by equitable principles ofgeneral applicability. (2) The Special Committee ofthe Board ofDirectors ofthe Company and the full Board ofDirectors ofthe Company (0 has unanimously adopted the plan ofmerger set forth in Articles I and E ofthis Agreement and approved this Agreement and the other transactions contemplated by this Agreement and (ii) has unanimously agreed to recommend to the stockholders the approval ofthis Agreement, the Merger, and the other transactions contemplated hereby. Section 3.5 No Conflict. (1) The execution and delivery ofthis Agreement by the Company do not, and the performance ofthis Agreement by the Company will not: (1) conflict with or violate any provision ofany Company Charter Document or any equivalent organizational documents ofany Company Subsidiary; (2) assuming that all consents, approvals, authorizations and other actions described in Section 3.6 have been obtained and all filings and obligations described in Section 3.6 have been made, conflict with or violate any foreign or domestic law, statute, ordinance, rule, regulation, order, judgment or decree ("Law") applicable to the Company or any Company Subsidiary or by which any property or asset ofthe Company or any Company Subsidiary is or may be bound or affected, except for any such conflicts or violations that, individually or in the aggregate, have not resulted and could not reasonably be expected to result in a Material Adverse Effect on the Company; or 1~PH/1196$59.1 -9- (3) result in any breach of or constitute a default (or an event which with or without notice or lapse oftime or both would become a default) under, or give to others any right oftermination, amendment, acceleration or cancellation of or result in the creation ofa Lien on any property or asset ofthe Company or any Company Subsidiary under any note, bond, mortgage, indenture, contract, agreement, commitment, lease, license, permit, franchise or other instrument or obligation (collectively, "Contracts") to which the Company or any Company Subsidiary is a party or by which any ofthemor their assets or properties is or may be bound or affected, except for anysuch breaches, defaults, rights or Liens that, individually or in the aggregate, have not resulted and could not reasonably be expected to result in a Material Adverse Effect on the Company. (2) The Company Disclosure Letter sets forth a correct and complete list ofall material Contracts.to which the Company or any Company Subsidiaries are a party or by which they or their assets or properties is or may be bound or affected under which consents or waivers are or may be required prior to consummation ofthe transactions contemplated by this Agreement. Section 3.6 Required Filings and Consents. The execution and delivery of this Agreement by the Company do not, and the performance ofthis Agreement by the Company will not, require any consent, approval, authorization or permit of or filing with or notification to, any domestic or foreign national, federal, state, provincial or local governmental, regulatory or administrative authority, agency, commission, court, tribunal or arbitral body or self-regulated entity (each, a "Governmental Entity"'), other than (i) compliance with applicable requirements ofthe Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"V (ii) compliance with the pre-merger notification requirements ofthe Hart-Scott-Rodino Antitrust improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the "HSR Act"), (iii) the filing of a Certificate of Designation relating to the Series C Preferred Stock; (iv) the filing ofthe Certificate ofMerger in accordance with the NJBC; and (v) where the failure to obtain such consent, approval, authorization or permit, or to provide such notice or make such filing, individually or in the aggregate, has not and could not reasonably be expected to result in a Material Adverse Effect. Section 3.7 Permits; Compliance with Law. Each ofthe Company and the Company Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits. 1-PH/11966S9.1 - 10 - i:, TOY 15 2000 12:35 FR PWRW3.G 212 373 2753 TO B15135003-1S0953 P.06/08 CERTIFICATE REGARDING AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF WILMAR INDUSTRIES, INC. To: The Department ofTreasury State ofNew Jersey Pursuant to the provisions ofN.J.S.A. 14A:$>-5, the undersigned corporation hereby executes this certificate regarding the attached Amended and Restated Certificate ofIncorporation: 1, The name ofthe corporation is WILMAR INDUSTRIES, INC, 2, The attached Amended and Restated Certificate ofIncorporation was adopted by unanimous written consent ofthe board ofdirectors in lieu of a meeting on May 16,2000, and by unanimous written consent ofthe shareholders ofthe corporation holding all 13,193,238 shares of common stock ofthe corporation outstanding and all 1,067,634 shares of senior preferred stock outstanding entitled to vote on the Amended and Restated Certificate ofIncorporation on May 16,2000, IN WITNESS WHEREOF, the undersigned corporation has caused this certificate to be executed in its name by the undersigned officer as of this 16th day ofMay, 2000. WILMAR INDUSTRIES, INC. Name: 6-. Title: S0hkeA V(C. P/ZeZbejJf- Mb CfHP kFF{c{. AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF WILMAR INDUSTRIES, INC. FIRST. The name of the corporation is WILMAR INDUSTRIES, INC. SECOND. The registered office of the Corporation in the State of New Jersey is located at 303 Harper Drive, Moorestown, NJ 08057, and the name of its registered agent at such address is Fred B. Gross. The current Board of Directors of the Corporation (the "Board") consists of two members, Samantha Trotman and Drew Sawyer, the address of both of whom is: c/o Parthenon Capital, 200 State Street, Boston, MA 02109. THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the New Jersey Business Corporation Act. FOURTH. 1. Designation. The total number of shares of all classes of stock which the Corporation shall have authority to issue is 29,500,000; of which 2,500,000 shares, no par value per share, are to be of a class designated "Common Stock" (the "Common Stock") and 27,000,000 shares, par value $.01 per share, are to be of a class designated Senior Preferred Stock (the "Senior Preferred Stock"). The rights, preferences, privileges and restrictions granted to and imposed upon the Common Stock are set forth below in this ARTICLE FOURTH. The rights, preferences, privileges and restrictions granted to and imposed upon the Senior Preferred Stock are set forth in the attached Exhibit A. 2. Dividends on Common Stock. Dividends shall be paid on the Common Stock when, as and if declared by the Board. 3. Voting Power. Except as otherwise expressly provided herein, or as required by law, each holder of Common Stock shall be entitled to vote on all matters and shall be entitled to one vote for each share of Common Stock standing in his name on the books of the Corporation. 4. Actions of the Board of Directors: Extraordinary Transactions. The Board shall not take, approve or otherwise ratify any of the Following actions without the prior consent of the holders of at least sixty percent (60%) in aggregate amount of the then outstanding shares of Common Stock: (a) other than the issuance of any (i) shares of Common Stock or Senor Preferred Stock upon the exercise of any option, warrant or other right to Doc#.- NY3: 602987.7 2 subscribe for, purchase or acquire shares of Common Stock or Senior Preferred Stock, or (ii) stock options, or other rights to purchase or acquire shares of Common Stock, or "phantom" stock or stock appreciation rights, granted pursuant to any stock option plan or other plan adopted for the benefit of officers, directors and employees of the Corporation and its subsidiaries and approved by the Board, and shares of Common Stock or Senior Preferred Stock issued upon the exercise of such options or rights or otherwise issued pursuant to any such plan ("Exempt Issuances"), create, issue or agree to issue a class or series of any capital stock of the Corporation or its subsidiaries or rights of any kind convertible into or exchangeable for, any capital stock of the Corporation or its subsidiaries, or any option, warrant or other subscription or purchase right with respect to such capital stock of the Corporation or its subsidiaries, including, without limitation, pursuant to any public offering of the equity securities of the Corporation; (b) (i) any transaction of merger or consolidation of the Corporation or its Subsidiaries with one or more entities, (ii) any transaction of merger or consolidation of one or more entities into or with the Corporation or any of its subsidiaries or (iii) any recapitalization of the Corporation (other than, in the case of clauses (i) and (ii), mergers or consolidations of any wholly-owned subsidiaries of the Corporation with each other and mergers or consolidations of a wholly-owned subsidiary of the Corporation with and into the Corporation where the Corporation is the surviving entity); (c) any sale, conveyance, exchange or transfer of all or substantially all of the capital stock or assets of the Corporation or its subsidiaries (other than to the Corporation or any of its wholly-owned subsidiaries); (d) any transactions, or the amendment, modification or waiver of any existing transactions, with any shareholder of the Corporation or an affiliate thereof or any officer, director or member of management of the Corporation, other than any such transaction (or series of related transactions) which has an aggregate consideration of less than $5,000 and is on terms no less favorable to the Corporation taken as a whole than would be obtained in an arm's-length transaction with an unrelated third party (other than customary transactions with management and compensation or management fee arrangements between the Corporation and Parthenon Investors, L.P., a Delaware limited partnership, including the compensation and fees as set forth in the employment agreements between the Corporation and each of William S. Green, Michael T. Toomey, Michael J. Grebe and William E. Sanford (the "Management Shareholders") as in effect on the date this Amended and Restated Certificate of Incorporation is filed with the Department of Treasury of the State of New Jersey; (e) any declaration or making of dividend payments or other payment or distribution on account of, or any redemption or repurchase of, the capital Dec* NYS: 602967.7 3 stock of the Corporation (other than a pro-rata redemption of the then outstanding Senior Preferred Stock from all holders thereof); (f) any voluntary or involuntary liquidation under applicable bankruptcy or reorganization legislation, or any dissolution or winding up of, the Corporation or its subsidiaries; (g) incur, create or maintain any indebtedness in an aggregate principal amount outstanding in excess of $200 million; (h) assign any of its rights to purchase the shares of capital stock of the Corporation held by any Management Shareholder upon the termination of employment of such Management Shareholder to any entity other than the lenders under that certain Revolving Credit and Term Loan Agreement among the Corporation, the lenders named therein, Fleet National Bank, as administrative agent, and FleetBoston Robertson Stephens Inc., as manager, as amended; (i) enter into any business materially different in scope and character from the business in which the Corporation is engaged on the date this Amended and Restated Certificate of Incorporation is filed with the Department of Treasury of the State of New Jersey; or (j) any material amendment, modification or restatement of this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation, as amended. 5. Other Rights Reserved to Common Stock. Except for and subject to those rights expressly granted to the holders of the Senior Preferred Stock, or except as may be provided by the laws of the State of New Jersey, the holders of Common Stock shall have exclusively all other rights of stockholders. FIFTH. 1. Election ofDirectors. Members of the Board may be elected either by written ballot or by voice vote. 2, Limitation ofLiability. No director ofthe Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director (a) for any breach of the director's duty ofloyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation oflaw or (c) for any transaction from which the director derived any improper personal benefits. Dog* NYSi 602987.7 4 Any repeal or modification ofthe foregoing provision shall not adversely affect any right or protection ofa director ofthe Corporation existing at the time of such repeal or modification. 3. Indemnification. (a) To the extent not prohibited by law, the Corporation shall indemnify any person who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right ofthe Corporation to procure a judgment in its favor, by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a director or officer of the Corporation, or, at the request of the Corporation, is or was serving as a director or officer ofany other corporation or in a capacity with comparable authority or responsibilities for any partnership, joint venture, trust, employee benefit plan or other enterprise (an "Other Entity"), against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees, disbursements and other charges). Persons who are not directors or officers of the Corporation (or otherwise entitled to indemnification pursuant to the preceding sentence) may be similarly indemnified in respect ofservice to the Corporation or to an Other Entity at the request of the Corporation to the extent the Board at any time specifies that such persons are entitled to the benefits ofthis Section 3, (b) The Corporation shall, from time to time, reimburse or advance to any director or officer or other person entitled to indemnification hereunder the funds necessary for payment ofexpenses, including attorneys' fees and disbursements, incurred in connection with any Proceeding, in advance ofthe final disposition of such Proceeding; provided, however, that, if required by the laws ofthe State ofNew Jersey, such expenses incurred by or on behalf ofany director or officer or other person may be paid in advance ofthe final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalf of such director or officer (or other person indemnified hereunder), to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such director, officer or other person is not entitled to be indemnified for such expenses. (c) The rights to indemnification and reimbursement or advancement ofexpenses provided by, or granted pursuant to, this Section 3 shall not be deemed exclusive of any other rights to which a person seeking indemnification or reimbursement or advancement ofexpenses may have or hereafter be entitled under any statute, this Amended and Restated Certificate ofIncorporation, the By-laws of the Corporation, as amended (the "By-laws"), any agreement, any vote of shareholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. Doc#' NYJ: 6Q29S7.7 5 (d) The rights to indemnification and reimbursement or advancement ofexpenses provided by, or granted pursuant to, this Section 3 shall continue as to a person who has ceased to be a director or officer (or other person indemnified hereunder) and shall inure to the benefit ofthe executors, administrators, legatees and distributees of such person. (e) The Corporation shall have power to purchase and maintain insurance on behalfofany 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 an Other Entity, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Section 3, the By-laws or under the laws of the State ofNew Jersey or any other provision of law. (f) The provisions of this Section 3 shall be a contract between the Corporation, on the one hand, and each director and officer who serves in such capacity at any time while this Section 3 is in effect and any other person entitled to indemnification hereunder, on the other hand, pursuant to which the Corporation and each such director, officer, or other person intend to be, and shall be, legally bound. No repeal or modification ofthis Section 3 shall affect any rights or obligations with respect to any state of facts then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state offacts. (g) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 3 shall be enforceable by any person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. The burden of proving that such indemnification or reimbursement or advancement of expenses is not appropriate shall be on the Corporation. Neither the failure ofthe Corporation (including its Board, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Corporation (including its Board, its independent legal counsel and its stockholders) that such person is not entitled to such indemnification or reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that such person is not so entitled. Such a person shall also be indemnified for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding. (h) Any director or officer of the Corporation serving in any capacity of (i) another corporation ofwhich a majority ofthe shares entitled to vote in the election Eve*: NY5: 602987.7 6 ofits directors is held, directly or indirectly, by the Corporation or (ii) any employee benefit plan ofthe Corporation or any corporation referred to in clause (i) shall be deemed to be doing so at the request of the Corporation. (i) Any person entitled to be indemnified or to reimbursement or advancement ofexpenses as a matter of right pursuant to this Section 3 may elect to have the right to indemnification or reimbursement or advancement ofexpenses interpreted on the basis of the applicable law in effect at the time of the occurrence ofthe event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis ofthe applicable law in effect at the time such indemnification or reimbursement or advancement ofexpenses is sought, Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or advancement of expenses is sought; provided, however, that ifno such notice is given, the right to indemnification or reimbursement or advancement ofexpenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Doc* NYSi 602987.7 7 MAY 15 2000 12! 35 FR PURW8.G 212 373 2753 TO 815135003-160953 P.07/08 IN WITNESS WHEREOF, the undersigned Corporation has caused this Amended and Restated Certificate of Incorporation to be executed in. its name by the undersigned officer as of this 16th day of May, 2000. WILMAR INDUSTRIES, INC. Name: wfmAM Title: SCNUJ/?. V(CE (>.es/bfjr AM CfiFi/WtJcifit- cfftC Doc#; NTS: <$029*7.7 EXHIBIT A WILMAR INDUSTRIES, INC. CERTIFICATE OF DESIGNATION OF SENIOR PREFERRED STOCK, SETTING FORTH THE POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF SUCH SERIES OF PREFERRED STOCK WILMAR INDUSTRIES, INC., a New Jersey corporation (the "Corporation"), DOES HEREBY CERTIFY; That pursuant to authority conferred upon the Board ofDirectors ofthe Corporation (the "Board of Directors") by the Certificate of Incorporation ofthe Corporation (the "Certificate of Incorporation"), and pursuant to the provisions of Chapter 7 ofthe New Jersey Business Corporation Act, the Board ofDirectors, by unanimous written consent in lieu of meeting, adopted the following resolution creating one series of preferred stock, which resolution is as follows: WHEREAS, the Board ofDirectors is authorized, within the limitations and restrictions stated in the Certificate of Incorporation, to provide by resolution or resolutions for the issuance of shares ofpreferred stock, par value $0.01, of the Corporation (the "Preferred Stock"), in one or more series with such voting powers, full or limited, or without voting powers, and such other rights, preferences, privileges and restrictions as shall be stated and expressed in the resolution or resolutions providing for the issuance thereof adopted by the Board ofDirectors, and as are stated and expressed in the Certificate ofIncorporation, or any amendment thereto, including (but without limiting the generality of the foregoing) such provisions as may be desired concerning voting, redemption, dividends, dissolution or the distribution of assets and such other subjects or matters as may be fixed by resolution or resolutions of the Board of Directors under the New Jersey Business Corporation Act; and WHEREAS, it is the desire of the Board ofDirectors, pursuant to its authority as aforesaid, to authorize and fix the terms of one series ofPreferred Stock and the number of shares constituting such series; NOW, THEREFORE, BE IT RESOLVED. ARTICLE I. Senior Preferred Stock 1. Designation and Number of Shares. (a) There shall be hereby established a series of Preferred Stock designated as "Senior Preferred Stock" (the "Senior Preferred"), to consist of 27,000,000 shares, par value $0.01 per share. (b) Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Article II below. 2. Rank The Senior Preferred shall, with respect to dividend distributions, redemptions and distributions of assets and rights upon the liquidation, winding up and dissolution ofthe Corporation, whether voluntary or involuntary, rank senior to (a) all classes of common stock ofthe Corporation (including, without limitation, the common stock, no par value per share, of the Corporation (the "Common Stock")), and (b) each other class or series of Capital Stock of the Corporation hereafter created, each ofwhich shall expressly provide that it ranks junior to the Senior Preferred with respect to dividend distributions and distributions ofassets and rights upon the Doc*: NYS: <503087.7 2 liquidation, winding up and dissolution ofthe Corporation (such Capital Stock, together with the Common Stock, the "Junior Stock"). 3. Dividends- (a) Beginning on the date of issuance of the Senior Preferred, the holders ofthe outstanding shares of Senior Preferred shall be entitled to receive dividends payable in cash on each share of Senior Preferred (subject to equitable adjustment whenever there shall occur a stock split, combination, reclassification or similar event involving the Senior Preferred) at an annual rate equal to 14%. All dividends with respect to any share of Senior Preferred shall (i) begin to accrue on a daily basis, (ii) be cumulative, whether or not earned or declared, (iii) be compounded quarterly from the date of issuance of such share and (iv) shall be payable when declared by the Board ofDirectors. (b) All dividends accrued with respect to shares of Senior Preferred pursuant to Section 3(a) shall be accrued pro rata and in like manner to all of the holders entitled thereto, and shall be payable prior to the payment of any dividend on shares of any Junior Stock. No dividend may be paid on any securities ofthe Corporation rankingpari passu with the Senior Preferred unless such dividend is paid on a pro rata basis to holders ofthe Senior Preferred also. (c) Dividends accrued on the Senior Preferred for any period less than a year shall be computed on the basis of a 365 or 366-day year and the actual number of days elapsed in the period for which accruable. Doc*: NYS: 6G2987.7 3 4. Liquidation. (a) In the event ofany voluntary or involuntary liquidation, winding up or dissolution of the Corporation, the holders ofshares of Senior Preferred then outstanding shall be entitled to be paid for each share held, out of the assets of the Corporation legally available for distribution to its stockholders, an amount in cash equal to the sum of the Liquidation Value per share plus an amount in cash equal to all accumulated and unpaid dividends thereon to the date of such liquidation, winding up or dissolution, whether or not declared, before any payment shall be made or any assets distributed to the holders ofany shares of Junior Stock, Except as provided in the preceding sentence, holders of the Senior Preferred shall not be entitled to any distribution in the event of any liquidation, winding up or dissolution of the Corporation. (b) If, upon any liquidation, winding up or dissolution of the Corporation, the assets ofthe Corporation legally available for distribution to the holders of the Senior Preferred shall be insufficient to permit payment in full to such holders of the sums which such holders are entitled to receive in such case (including all accrued and unpaid dividends thereon), then all of the assets available for distribution to the holders of the Senior Preferred shall be distributed among and paid to the holders of Senior Preferred ratably in proportion to the respective amounts that would be payable to such holders if such assets were sufficient to permit payment in full. Not less than thirty (30) days prior to the payment date stated therein, the Corporation shall mail written notice of any such liquidation, winding up or dissolution to each record holder of Senior Preferred, setting forth in reasonable detail, to the extent known, the amount of proceeds DocM: NY$! 602W7.7 4 to be paid with respect to each share of Senior Preferred and the Junior Stock in connection with such liquidation, winding up or dissolution. (c) For the purposes ofthis Section 4, any transaction or series of transactions (as a result ofa tender offer, merger, consolidation or otherwise) that results in, or that is in connection with, (i) any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) acquiring "beneficial ownership" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 51% or more of the then issued and outstanding shares ofCommon Stock, without giving effect to the issuance of shares under any security convertible into, exchangeable for or evidencing the right to purchase or otherwise receive any shares ofCommon Stock, other than any such acquisition by, or by any such "group" that is controlled by, Parthenon, the Parthenon Affiliates or persons who are senior executive officers or former senior executive officers of the Corporation or any of its subsidiaries, or (ii) the sale, lease, exchange, conveyance, transfer or other disposition (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets ofthe Corporation to any Person or "group" (within the meaning of Section 13(d)(3) ofthe Exchange Act), other than any such sale, lease, exchange, conveyance, transfer or other disposition to, or to any such "group" that is controlled by, Parthenon, the Parthenon Affiliates or persons who are senior executive officers or former senior executive officers of the Corporation or any of its subsidiaries, shall be deemed to be a liquidation of the Corporation under Section 4(a) (which transaction or series oftransactions shall be referred to herein as a "Liquidation Event"), unless the holders of eighty percent (80%) of the then outstanding shares of T>ocM: NV5- 602987.7 5 Senior Preferred, voting separately as a single class, elect not to treat any of the foregoing transactions as a Liquidation Event by giving written notice thereof to the Corporation. 5. Optional Redemption. The Corporation may redeem all or any portion of the shares of Senior Preferred outstanding at any time, except for shares of Senior Preferred received by any holder in exchange for shares of Class C Preferred Stock of the Corporation previously held by any such holder ("Exchange Shares"), upon a vote of the majority ofthe Board ofDirectors; provided that the Corporation may not redeem any shares of Senior Preferred owned by CB Capital Investors, LLC or any of its Affiliates or permitted transferees (the "Chase Shareholders"), Sterling Investment Partners, L.P. or any of its Affiliates or permitted transferees (the "Sterling Shareholders"), or Parthenon or any Parthenon Affiliate or any oftheir permitted transferees (the "Parthenon Shareholders"), if such Chase Shareholder, Sterling Shareholder or Parthenon Shareholder, as applicable, reasonably determines that such redemption may be taxable as a distribution pursuant to Section 301(a) ofthe Internal Revenue Code of 1986, as amended (the "Code"), by reason of Section 302 ofthe Code; and provided further that if less than all of such outstanding shares of Senior Preferred (other than Exchange Shares) are to be redeemed pursuant to this Section 5, such shares shall be redeemed pro rata among the holders of Senior Preferred (other than holders of Exchange Shares) whose shares are being redeemed, based on the number of shares of Senior Preferred held by such holders. Except as otherwise provided herein, the Corporation shall mail written notice of each redemption of any Senior Preferred to each record holder thereof not more than sixty (60) nor less than thirty (30) days prior to the date on which such redemption is to be made. In case fewer than the total number of JW* NY5; 6Q2M7.7 6 shares of Senior Preferred represented by any certificate are redeemed, a new certificate representing the number of unredeemed shares of Senior Preferred shall be issued to the holder thereof without cost to such holder within five (5) business days after surrender of the certificate representing the redeemed shares of Senior Preferred, The Corporation shall redeem each share of Senior Preferred to be redeemed in cash at a price per share equal to the sum of the Liquidation Value per share plus all accumulated and unpaid dividends thereon to the date ofmailing ofthe redemption notice, whether or not declared. 6. Voting Rights. The holders of Senior Preferred shall not be entitled or permitted to vote on any matter required or permitted to be voted upon by the stockholders ofthe Corporation, except as otherwise required under New Jersey law and as follows: (i) in connection with any proposal that the Corporation shall authorize or issue additional shares of Senior Preferred or additional classes or series of preferred stock; (ii) any changes to the rights ofthe Senior Preferred relating to voting, redemption, dividends, dissolution or the distribution of Corporation assets and any amendment to this Certificate ofDesignation; and (iii) in connection with such other subjects or matters that adversely affect the holders of Senior Preferred. In any of the foregoing cases, the affirmative vote of the holders ofat least sixty percent (60%) of the then outstanding Senior Preferred voting separately as a class shall be required; provided that, any amendment to Section 5 limiting the rights of the Parthenon Shareholders thereunder shall also require the prior written consent ofParthenon, any amendment to Section 5 limiting the rights of the Chase Shareholders thereunder shall also require the prior written consent ofCB Capital Investors, LLC, and any amendment to Section 5 limiting Doc#} NY5: 602987.7 7 the rights ofthe Sterling Shareholders thereunder shall also require the prior written consent of Sterling Investment Partners, L.P. 7. No Reissuance of Senior Preferred. Shares of Senior Preferred that have been redeemed or otherwise acquired by the Corporation shall be retired and canceled, shall resume the status of authorized and unissued shares of Preferred Stock and shall not be reissued, sold or transferred. 8. Business Dav. If any payment or redemption shall be required by the terms hereofto be made on a day that is not a Business Day, such payment or redemption shall be made on the immediately succeeding Business Day. ARTICLE II. Definitions As used in this Certificate ofDesignation, the following terms shall have the following meanings (with terms defined in the singular having comparable meanings when used in the plural and vice versa), unless the context otherwise requires: "Affiliate" means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person. For the purposes ofthis definition, "control," when used with respect to any specified Person, means the power to direct or cause the direction ofthe management and policies ofsuch Person, whether through the ownership ofvoting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative ofthe foregoing. "Board ofDirectors" has the meaning set forth in the preamble hereto, "Business Dav" means any day except a Saturday, a Sunday, or any day on which banking institutions in New York, New York are required or authorized by law or other governmental action to be closed. "Capital Stock" means, with respect to any Person, any and all shares, interests, participations, rights in, or other equivalents (however designated and whether voting or non-voting) of, such Person's capital stock and any and all rights, warrants or Doc* NYS; 602987.7 8 options exchangeable for or convertible into such capital stock (but excluding any debt security that is exchangeable for or convertible into such capital stock). hereto. "Certificate of Incorporation'1 has the meaning set forth in the preamble "Chase Shareholders" has the meaning set forth in Section 5 hereof "Code" has the meaning set forth in Section 5 hereof. "Common Stock" has the meaning set forth in Section 2 hereof. "Corporation" has the meaning set forth in the preamble hereto. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exchange Shares" has the meaning set forth in Section hereof. "Junior Stock" has the meaning set forth in Section 2 hereof. "Liquidation Event" has the meaning set forth in Section 4(c) hereof. "Liquidation Value" means, with respect to each share of Senior Preferred, the sum of$10. "Parthenon" means Parthenon Investors, L.P., a Delaware corporation, and its successors. "Parthenon Affiliates" means any Person directly or indirectly controlled by, or under common control with, Parthenon, including, without limitation, any partnerships or coinvestment entities established by Parthenon, any direct or indirect partners of any of the foregoing, and any directors, officers and employees ofParthenon and any ofthe foregoing Persons. "Parthenon Shareholders" has the meaning set forth in Section 5 hereof. "Person" means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, estate, unincorporated organization, governmental or regulatory body or other entity. "Preferred Stock" has the meaning set forth in the preamble hereto. "Senior Preferred" has the meaning set forth in Section 1(a) hereof "Sterling Shareholders" has the meaning set forth in Section 5 hereof Doc*' NY5: 602987.7 9 MOV 15 2000 12=35 FR PURW&G 212 373 2753 TO 815135003-160953 P.08/08 "Votina Stock" of any Person means shares of Capital Stock entitled (without regard to the occurrence ofany contingency) to vote for the election of members ofthe board of directors or similar management body of such Person. IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed by its duiy authorized officer this 16th day of May, 2000. WILMAR INDUSTRIES, INC. Name: Uj\LL^/(M * Title: SEni*/?. vYC Pstl>GiJT WP Docft NYSl 0019*7.1 10 ** TOTAL PAGE.0S ** 15:40 DEC 26; 2000 #81371 PAGE: 2/13 - (FRIJ12.22'00 12:02/ST. 11:53/NO. 4861390891 P 47 execution copy /afi(r' FILED CERTIFICATE OF MERGER or USL HOLDINGS, LLC DEC 17 m State Treasurer Roland Machnfrf INTO WiLMAR INDUSTRIES, INC. Pursuant to Section 14A; 10-5.1 ofthe Business Corporation Act ofthe State ofNew Jersey The undersigned DO HEREBY CERTIFY: FIRST: The name ofthe foreign constituent coloration, which is being merged into the surviving constituent corporation, is USL Holdings, LLC ("UL")> which is a limited liability company organized under the laws ofthe State ofNorth Carolina. SECOND; The name ofthe domestic constituent corporation, which is the surviving constituent corporation, is Wiimar Industries, Inc. ("W'itff&T)- THIRD: The Board ofDirectors ofWiimar has duly adopted a Plan of Merger, attached as Exhibit A, setting forth the terms and conditions of the merger of said corporations, . FOURTH: The number ofoutstanding equity interests ofUSL, all of which are owned by Wiimar, is 100 units. FIFTH: The number ofoutstanding shares of Wiimar, which are both preferred stock and common stock, are as follows; (a) 23,619,888 shares ofpreferred stock; (b) 1,795,063 shares of common stock. S d&s&:: /('>87SShf ({ag'?ss~: ~ ( ' Dixti NY$: *45763.1 Bio oo n'vifo n IS:43 CEC z&> 2000 SOM * --- #81371 PAGE; 3/J3 12:0VSt 11:53/WO. 4fi6i39089J P 48 % >^MAJlINDUSTiaS5, INC. vf. v a.Po USLHOUWOS.U.C By:. Si m. 0**MtimXLi 4 =< ssre-eos-B&a *H>0 OP B1 *0 ** TOTAL PfiGe.05 #* 15*45 DEC 26, 2000' FBOM . #81371 PAGE* 4/13 . ^ . _1FRU12.`22'0Q 12; Q5/ST/;Ui53/IQ, 4861390891 P 49 EXHIBIT A PLAN OF MERGER. FOR USL HOLDINGS, LLC INTO WILMAR INDUSTRIES, INC. IT IS HEREBY certified that; 1. Wilmar Industries, Inc. (the "Corporation") is a business corporation ofthe State ofNew Jersey. 2. The Corporation is the owner of sdl ofthe outstanding equity iulwcsta urUSL IlolUhigs, LLC ("USL"), which is a Ihiulcd liability company organized under the laws ofthe State of North Carolina. 3. On December 20,2000, the Board ofDirectors ofthe Corporation adopted the following resolutions to merge USL into the Corporation: RESOLVED, that, pursuant to Section 14A:I0-5.1 ofthe Business Corporation Act ofthe State ofNew Jersey, the Corporation and USL, which is a whollyowned subsidiary ofthe Corporation, shall be merged on the following terms and conditions (the "Metfeer"): (a) The Corporation shall continue to be incorporated and duly organized under the laws ofthe State ofNew Jersey. USL shall be the merged corporation and its separate existence shall thereupon cease. (b) The effective date ofthe Merger (the "Effective Time") shall be December 29, 2000. _____ , . ............... . (c) The issued equity interests ofUSL shall not be converted in any manner, but each said equity interest which is issued as ofthe Effective Time shall be surrendered and extinguished. (d) At the Effective Time, the Certificate ofIncorporation of lire Corporation, as in effect immediately prior to the Effective Time, shall be the Certificate ofIncorporation ofthe Corporation, as the surviving corporation, until thereafter restated or amended in accordance with applicable law Doc#: NYS; mm.l 15;48 DEC 26, 2000 " FROM ' 81371 PAGE: 5/13 (FRI) 12. 22'00 12:03/ST. 11:53/NO. 48613908^1 P 50 Certificate ofIncorporation ofthe Corporation, as the surviving corporation, until thereafter restated or amended in accordance with applicable law. (c) The By-laws ofthe Corporation, as in effect immediately prior to the Effective Time, shall from and after the Effective Time become and remain the By-laws of the Corporation, as the surviving corporation, until thereafter amended or restated as provided therein, (f) The officers and directors ofthe Corporation in office on the Effective Time shall remain in the same capacities as officers and directors ofthe Corporation, as Ihe surviving corporation, until their successors have been duly elected and qualified. (g) At the Effective Time, the Corporation, as the surviving corporation, shall assume all of the rights, privileges, powers, franchises, duties, liabilities and obligations ofUSL and the Corporation. (h) Any officer ofthe Corporation shall be, and each ofthem hereby is, authorized to execute, and the Secretary or Assistant Secretary ofthe Corporation is hereby authorized to attest to the execution of, a Han ofMerger ofthe Corporation and USL, and any officer ofthe Corporation shall be, and each ofthem hereby is, authorized to cause the Plan ofMerger to be filed with the Secretary of State of the State ofNew Jersey. (i) Anything herein or elsewhere to the contrary notwithstanding, the terms and conditions ofthe Merger may be amended, and the Merger may be terminated and abandoned, to the fullest extent permitted by law, by the Board ofDirectors ofthe Corporation at any time prior to the date offiling ofthe Plan of Merger with the Secretary of State ofthe State nfNew Tersey RBSOT.VED, that any officer ofthe Corporation be, and each ofthem hereby is, authorized and empowered, in the name and on behalf ofthe Corporation or its subsidiaries, to take any action (including, without limitation, the payment ofexpenses) and to execute (by manual or facsimile signature) and deliver all such further documents, contracts, letters, agreements, instruments, drafts, receipts or other writings that such officer or officers may in their sole discretion deem necessary or appropriate to cany out, comply with and effectuate the purposes ofthe foregoing resolutions and the transactions contemplated thereby and that the authority ofsuch officers to execute and deliver any of such documents and instruments, including without limitation any modification, extension or expansion, and to take any such other action, shall he conclusively evidenced by their execution and delivery thereofor their taking thereof FROM DEC 2&> `2000 \L ' . ' ` * 4f%.V "ft'*** *>VWV *1 **'* II* * **--*>* 81371 PAGE* 6^13 (FRI) 12JO0JX:^SUL^mM11MJ p 51 Executed on Dcecmbet$^2000 -v 13*30 DEC 26/ 2000 FROM ` v #01362 PAGE: 3/23 (FRI) 12.22' 00 12:00/ST.J1[^3JW.J9^^9! P 37 CERTIFICATE OF MERGER OF ACE MAINTENANCE MART USA, INC. INTO WILMAR INDUSTRIES, INC. fAfUr FILED DEC 2 7 2000 . State Treasurer Roland Machold Pursuant to Section 14A: 10-5,1 of the Business Corporation Act ofthe State ofNew Jersey The undersigned DO HEREBY CERTIFY: v FIRST: The name ofthe foreign constituent corporation, which is being merged into the surviving constituent corporation, is Ace Maintenance Mart USA, Inc. ('"Ace"), which is a business corporation incorporated under the laws of the State of California. -- --- - SECOND: The name ofthe domestic constituent corporation, which is the surviving constituent corporation, is Wilmar Industries, Inc. ("WUmaf'T THIRD: The Board ofDirectors ofWilmar has duly adopted a Plan ofMerger, attached as Exhibit A, setting forth the terms and conditions ofthe merger of said corporations. FOURTH: The number ofoutstanding shares ofAce, ail ofwhich are common stock, is 1,000 shares. FIFTH: The number ofoutstanding shares ofWilmar, which are both preferred stock and common stock, are as follows: (a) 23,619,888 shares ofpreferred stock; (b) 1,795,063 shares ofcommon stock. 26/ 2000 tec is 2000 1V`-W> v-K vwwsi* #81362 PfiSE-_ 4^23_ (Fiy^Oi2^^ii^ML3J089^ P 38 ,; -2 SIXTH: The effective date ofthe merger hefrin certified, fewfir at the provisions pfthe Business Corponttfoo Act ofthe State oFNew Jersey govern such effective date, shot! be the^Jday ofDecember, 2000. Signed on December 2000. WILMAR INDUSTRIES, INC. By.. Name: Vt/, Lju A ys n tJFcH.0 Title: to., tf.f, * CFo Cg(:WtttfnA.L 13533 DEC 26, 2000. FROM #ai3sa page: 5/23 * (FRI} 12.22' 00 !2:00/ST.'i 1:53/N^6lJ908J 1 P 39 * PLAN OF MERGER FOR ACE MAINTENANCE MART USA, INC. P INTO WELMAR INDUSTRIES, INC. IT IS HEREBY certified that: 1. WiJmar Industries, Inc. (the ''Corporation*^ is a business corporation of the State ofNew Jersey. 2. The Corporation is the owner ofall of the outstanding shares of Aoe Maintenance Mart USA, Inc, f"Acc")t which is a business corporation incorporated under the laws ofthe State ofCalifornia. 3. On Dcocinbcr 20,2000, tho Board ofDirectors ofthe Corporation adopted the following resolutions to merge Ace into the Corporation: RESOLVED, that, pursuant to Section 14A: 10-5.1 ofthe Business Corporation Act ofthe State ofNew Jersey, the Corporation and Ace, which is a whollyowned subsidiary ofthe Corporation, shall be merged on the following terms and conditions (the "Merger^- (a) The Corporation shall continue to be incorporated and duly organized under the laws ofthe State ofNew Jersey. Ace shall be the merged corporation and its separate existence shall thereupon cease. (b) The effective date ofthe Merger (the "Effective Time11) shall be December 29,2000. . (c) The issued shares ofAce shall not be converted in any manner, but each said share which is issued as ofthe Effective Time shall be surrendered and extinguished. (d) At the Effective Time, the Certificate ofIncorporation of the Corporation, as in effect immediately prior to the Effective Time, shall be the Certificate ofIncorporation of the Corporation, as the surviving corporation, until thereafter restated or amended in accordance with applicable law. Doe#: NYJ: *45756.1 13:35 DEC 26/ 2000. ROM ' ' ' #81362 PAGE: 6/23 {FRim 22'00 12:OJ/ST. J lT-53/A'P. 48613908J1 P 40 (e) The By-laws ofthe Corporation, as in effect immediately prior to the Effective Time, shall from and after the Effective Time become and remain the By-laws ofthe Corporation, as the surviving corporation, until thereafter amended or restated as provided therein, (f) The officers and directors ofthe Corporation in office on the Effective Time shall remain In the same capacities as officers and directors ofthe Corporation, as the surviving corporation, until their successors have been duly elected and qualified. (g) At the Effective Time, the Corporation, as the surviving corporation, shall assume all ofthe rights, privileges, powers, franchises, duties; liabilities and obligations of Ace and the Corporation, (h) Any officer ofthe Corporation shall be, and each ofthem hereby is, authorized to execute, and the Secretary or Assistant Secretary ofthe Corporation is hereby authorized to attest to the execution of, a Plan ofMerger ofthe Corporation and Ace, and any officer ofthe Corporation shall be, and each ofthem hereby is, authorized to cause the Plan ofMerger to be filed with the Secretary of State of the State ofNew Jersey. (0 Anything herein or elsewhere to the contrary notwithstanding, the terms and conditions ofthe Merger may be amended, and the Merger may be terminated and abandoned, to the fullest extent permitted by law, by the Board ofDirectors ofthe Corporation at any time prior to the date offiling ofthe Plan of Merger with the Secretary of State ofthe State ofNew Jersey RESOLVED, that any officer ofthe Corporation be, and each ofthem hereby is, authorized and empowered, in the name and on behalfof the Corporation or its subsidiaries, to take any action (including, without limitation, the payment of expenses) and to execute (by manual or facsimile signature) and deliver all such further documents, contracts, letters, agreements, instruments, drafts, receipts or other writings that such officer or officers may in their sole discretion deem necessary or appropriate to carry out, comply with and effectuate the purposes ofthe foregoing resolutions and the transactions contemplated thereby and that the authority of such officers to execute and deliver any of such documents and instruments, including without limitation any modification, extension or expansion, and to take any such other action, shall be conclusively evidenced by their execution and delivety thereofor their taking thereof, Doaf: NY5: 84J756.1 ^13=37 DEC 25/ 2000 -' FROM ' , DEC' 15 2099 1750S FR PWRWWi #81362 PAGE! 7/23 f 41 3 flSs^L T TF7TILT EITD\V CERTIFICATE OF MERGER J-A. SBXAUBR, INC., TRAYCO OF S.C,, INC., MANAGEMENT SUPPLY COMPANY. AND ONE SOURCE SUPPLY, INC. INTO WILMAR INDUSTRIES, INC, DEC 2 7 2000 State Treasurer ttnW Machojd Pursuant to Section 14A: 10-5.1 ofthe Business Corporation Act ofthe State ofNew Jersey The undersigned DO HEREBY CERTIFY; FIRST: The names ofthe foreign constituent corporations, which tire being merged into the surviving constituent corporation, are as follows: J.A. Scxauer, Inc. ("Scxaucr") and Trayco ofS.C., Inc. ("Trayco"), which arc business corporations incorporated under the laws ofthe State of Delaware; Management Supply Company ("Management Supply"), which is a business corporation incorporated under the laws of the State ofMichigan; and One Source Supply, Inc. ("One Source") (collectively, the "Subsidiaries"), which, is a business corporation incorporated under the laws oftlic State ofFlorida. ' --- -- SECOND: The name ofthe domestic constituent corporation, which is the surviving constituent corporation, is Wilmor Industries, Inc. ("Wihnar"). THIRD: The Board ofDirectors of Wihnar has duly adopted u Plan ofMerger, attached as Exhibit A, setting forth the terms and conditions ofthe merger of said corporations. FOURTH; As to the following Subsidiaries, the number of outstanding shares, all ofwhich arc common shares and owned by Wilmar, is as follows: a) Sexauer has 2,000 outstanding shares; b) Trayco has ! ,000 outstanding shores; c) One Source has 100 outstanding shares. 0/20 'd -JQKXjjL HOSH 31V3Qtl8Q0 1VHQI1WI Wd 01UQ G3M 0002-iL2-03<[ 14:51 DEC 26, 2000 FROM , #81362 PRGE-- 19/23 (FRI) 12.22' 00 12:04/ST. 11:53/NO. 48613908^1 P 53 <) One Source has 100 outstanding shares. FIFTH: The number ofoutstanding shares ofManagement Supply, which are both preferred stock and two classes ofcommon stock and are all owned by Wilmar, are as follows: (a) 300,000 shares ofpreferred stock; (b) 5,000 shares of Class A Voting Common Stock; and (c) 45,000 shares ofClass B Non-voting Common Stock. SIXTH: The number ofoutstanding shares ofWilmar, which are both preferred stock and common stock, are as follows: (a) 23,619,888 shares ofpreferred stock; (b) 1,79S,063 shares ofcommon stock. [Remainder ofPage Left Intentionally Blank] Dot#; NYJ; 840999.6 15:00 DEC 26/ 2000 FROM, t .. . *31362 PfiGE: 21/23 -- -{FRI)1Z22'00 12:04/ST.n:53/Kyjpj)5Jl P 55 PLAN OF MERGER FOR J.A, SEXAUER, INC., TRAYCO OF S.C., INC., BARNET! INC., U.S. LOCK CORPORATION, MANAGEMENT SUPPLY COMPANY, AND ONE SOURCE SUPPLY, INC INTO WILMAR INDUSTRIES, INC. IT 1$ HEREBY certified that: 1. Wilmar Industries, Inc, (the "Corporation"') is a business corporation ofthe State ofNew Jersey. 2. The Corporation is the owner of all ofthe outstanding shares of J.A. Sexauer, Inc. ("Sexier"), Trayco of S.C., Inc. ("Traycp"). Barnett Inc. CSsCQStO and U.S, Lock Corporation rU.S. Lock"), which are business corporations incorporated under the laws ofthe State ofDelaware; Management Supply Company (`Management Supply"!, winch is a business corporation incorporated under the laws ofthe State of Michigan; and One Source Supply, Inc. ("One Source") (collectively, the "Subsidiaries"), which is a business corporation incorporated under the laws ofthe State ofFlorida. 3 On December 20,2000, the Board ofDirectors ofthe Corporation adopted the following resolutions to merge the Subsidiaries into the Corporation: RESOLVED, that, pursuant to Section 14A: 10-5.1 ofthe Business Corporation Act ofthe State ofNew Jersey, the Corporation and the Subsidiaries, which is a wholly-owned subsidiary ofthe Corporation, shall be merged on the following terms and conditions (the "Merger"!: (a) The Corporation shall continue to be incorporated and duly organized under the laws ofthe State ofNew Jersey. The Subsidiaries shall be the merged corporations and their separate existence shall thereupon cease. (b) The effective date ofthe Merger (the "Effective TifflS") shall be December 29,2000. (c) The issued shares ofthe Subsidiaries shall not be converted in any manner, but each said share which is issued as ofthe Effective Time shall be surrendered and extinguished. Doe#; NY5: 840999.S 15:06 DEC 26, .2000 FROM . *31362 PflSE: 22/23 (FRI) 12. 22' 00 12;04/ST. 11153/NQ. 4B61390SJ1 ? .56 (d) At the Effective Time, the Certificate ofIncorporation of the Corporation, as in effect immediately prior to the Effective Time, shall be the Certificate ofIncorporation ofthe Corporation, as the surviving corporation, until thereafter restated or amended in accordance with applicable law. (e) The By-laws ofthe Corporation, as in effect immediately prior to the Effective Time, shall from and after the Effective Time become and remain the By-laws ofthe Corporation, as the surviving corporation, until thereafter amended or restated as provided therein. (f) The officers and directors ofthe Corporation in office on the Effective Time shall remain in the same capacities as officers and directors ofthe Corporation, as the surviving corporation, until their successors have been duly elected and qualified. (g) At the Effective Time, the Corporation, as the surviving coiporation, shall assume all ofthe rights, privileges, powers, franchises, duties, liabilities and obligations ofthe Subsidiaries and the Corporation. (h) Any officer ofthe Corporation shall be, and each ofthem hereby is, authorized to execute, and the Secretary or Assistant Secretary of the Corporation is hereby authorized to attest to the execution of a Plan ofMerger ofthe Corporation and the Subsidiaries, and any officer ofthe Corporation shall be, and each of them hereby is, authorized to cause the Plan ofMerger to be filed with the Secretary of State of the State ofNew Jersey. (i) Anything herein or elsewhere to the contrary notwithstanding, the terras and conditions ofthe Merger may be amended, and the Merger may be terminated and abandoned, to the fullest extent permitted by law, by tbe Board of Directors of the Corporation at any time prior to the date offiling of the Plan of Merger with the Secretary of State ofthe State ofNew Jersey. RESOLVED, that any officer ofthe Corporation be, and each ofthem hereby is, authorized and empowered, in the name and on behalfofthe Corporation or its subsidiaries, to take any action (including, without limitation, tho payment of expenses) and to execute (by manual or facsimile signature) and deliver all such further documents, contracts, letters, agreements, instruments, drafts, receipts or other writings that such officer or officers may in their sole discretion deem necessary or appropriate to carry out, comply with and effectuate the purposes ofthe foregoing resolutions and the transactions contemplated thereby and that the authority ofsuch officers to execute and deliver any of such documents and instruments, including without limitation any modification, extension or expansion, and to take any such other action, shall be conclusively evidenced by their execution and delivery thereofor their taking thereof [Remainder ofthis page left intentionally blank] Doc*: NY5 840950.6 15:11 DEC 26. 2080' FROM r , ULW AW MMW U*w rn < #81362 PflG2; 23/2? 390891 f 57..U 4 Executed qd Dcocmber`^^2000 WILMAK INDUSTRIES, INC, /O By: Nirtis: VI c uU ft M Till*: 4 (L k V, P- C-f=t> 1 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF WILMAR INDUSTRIES, INC. Pursuant to Section I4A:9-2 of the Business Corporation Act of the State ofNew Jersey JUN 2 2 2001 J STATE TREASURER Wilmar Industries, Inc., a New Jersey corporation (the "Corporation"), does hereby certify as follows: 1. Article 1 ofthe Corporation's Certificate of Incorporation is hereby amended to read in its entirety as set forth below: "FIRST. The name ofthe corporation is INTERLINE BRANDS, INC." 2. Article 4, Section 1 of the Corporation's Certificate of Incorporation is hereby amended to read in its entirety as set forth below: "1. Designation. The total number ofshares of all classes of stock which the Corporation shall have authority to issue is 34,500,000; of which 7,500,000 shares, no par value per share, are to be ofa class designated "Common Stock" (the "Common Stock") and 27,000,000 shares, par value $.01 per share, are to be ofa class designated Senior Preferred Stock (the "Senior Preferred Stock"). The rights, preferences, privileges and restrictions granted to and imposed upon the Common Stock are set forth below in this ARTICLE FOURTH. The rights, preferences, privileges and restrictions granted to and imposed upon the Senior Preferred Stock are set forth in the attached Exhibit A." it 3, The amendment ofthe certificate ofincorporation herein certified has been duly adopted and written consent has been given in accordance with the Coc*Ny5:9Ul.l Of0.00 7?7i?7 2 provisions ofSections 14A:6-7.1 and I4A5*<5(2) ofthe Business Corporation Act ofthe State ofNew Jersey. [Rest ofpage left intentionally blank] \t 3 IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed in its corporate name this SUL day of^nC- . 2001. WILMAR INDUSTRIES, INC. Name! Title: Dae#: NYS:962J91.1 i. G>/*~ FILED JUL 1 8 2001 New Jersey Department of the Treasury Division of Commercial Recording STATE TREASURER CERTIFICATE OF CORRECTION OF WILMAR INDUSTRIES, INC. (NOW KNOWN AS INTERLINE BRANDS, INC.) Corporation Number: 0100077767 (Pursuant to Title 14A:l-6 (5) of the New Jersey Business Corporation Act) The undersigned hereby submits for filing a Certificate of Correction executed on behalf of the above named Corporation, pursuant to the provisions of the appropriate Statute, referred to above, of the New Jersey Statutes. 2. The Certificate to be corrected is the Certificate of Merger of J.A. Sexauer, Inc., Trayco of S.C., Inc., Barnett Inc., U.S. Lock Corporation, Management Supply Company, and One Source Supply, Inc. into Wilmar Industries, Inc., filed as of December 27, 2000. 2. The inaccuracy in the Certificate is the omission ofBarnett Inc. and U.S. Lock Corporation from the first page of the Certificate of Merger. 3. The Certificate of Correction hereby reads as follows: See EXHIBIT A WILMAR INDUSTRIES, INC. Name: William E. Sanford Title: Senior Vice President Date: June jl_, 2001 EXHIBIT A CORRECTED FIRST PAGE OF CERTIFICATE OF MERGER EXECUTION COPY CERTIFICATE OF MERGER OF J.A. SEXAUER, INC., TRAYCO OF S.C., INC., BARNETT INC., U.S. LOCK CORPORATION, MANAGEMENT SUPPLY COMPANY, AND ONE SOURCE SUPPLY, INC. INTO WILMAR INDUSTRIES, INC. Pursuant to Section 14A:10-5,1 of the Business Corporation Act of the State of New Jersey The undersigned DO HEREBY CERTIFY: FIRST: The names of the foreign constituent corporations, which are being merged into the surviving constituent corporation, are as follows: J.A. Sexauer, Inc. ("Sexauer"!. Trayco of S.C., Inc. ("Travco'T. Barnett Inc. ("Barnett"! and U.S. Lock Corporation ("U.S. Lock"!, which are business corporations incorporated under the laws of the State of Delaware; Management Supply Company ("Management Supply"!, which is a business corporation incorporated under the laws of the State of Michigan; and One Source Supply, Inc. ("One Source"! (collectively, the "Subsidiaries"!, which is a business corporation incorporated under the laws of the State of Florida. SECOND: The name of the domestic constituent corporation, which is the surviving constituent corporation, is Wilmar Industries, Inc. ("Wilmar"!. THIRD: The Board of Directors of Wilmar has duly adopted a Plan of Merger, attached as Exhibit A, setting forth the terms and conditions of the merger of said corporations. FOURTH: As to the following Subsidiaries, the number of outstanding shares, all of which are common shares and owned by Wilmar, is as follows: (a) Sexauer has 2,000 outstanding shares; (b) Trayco has 1,000 outstanding shares; (c) Barnett has 100 outstanding shares; (d) U.S. Lock has 1,000 outstanding shares; and Doc#: NY5: 840999.6 05/22/2003 14:44 FAX 7324381971 ' MAY 22 2003 tl01 PR PUR & G KIR $02 212 373 2788 TO 8162230021212564 P.02/04 fj/nt- C-102A Rev 12/93 New Jersey Department of the Treasury Division of Revenue Certificate of Amendment to Certificate of Incorporation (For Use by Domestic Profit Corporations) FILED NAY 22 2085! g ty Funuent to thsprovtxlooi of Section IMS-2 (4) end Section 14AS-4 (3). Copcnttau. Genual of the New lertey Sanaa, the imdenijncC corporation execute! the following Ceraflcete of Amendment to its Certificate of toewporetion: 1. The nemo T the oorpoaticn U; Interline Brands, Inc. ' Z The following unendmes to the Oertifinite of bcorpontion wa> approved by the director* and thereafter duly adopted by the iharcholden ofthe aupanhan on the 7th day of May, 2003: Reaalved. that Article 1 of Exhibit A of the CarttScmenf tncorporatlon be amended to add tha following wttence UnmedUtely after the Ktud *totCnce of Section 4(c) thereof: "Notwithstanding the foregoing, for so long as aay of the Corporation's 11 Vb % senior subordinated notes (the "Senior Subordinated Notes") to be issued under on Indenture to be entered into by the Corporation, Wilmsr Holdings, Inc., Wilmar Financial, Inc., Glenwood Acquisition LLC and the Bank of New York, si trustee (as supplemented or amended the "Indenture"), remain outstanding until the first anniversary of the Stated Maturity (as defined in the Indenture) ofthe Senior Subordinated Notes (the "Senior Subordinated Notes Period"), no event described in Section 4(a), 4(c)(i) or 4 (c)(it) above shall be deemed to be a voluntary or involuntary liquidation, winding up, a dissolution or other "Liquidation Event" entitling holders ofthe Senior Preferred to any amounts under Section 4(a) or 4(b) above, unless such event shall also constitute t "Change in Controt" as defined in the Indenture. Furthermore, during the Senior Subordinated Notes Period, holders ofthe Senior Preferred shall not be entitled to any amounts under Section 4(a) or 4(b) above on account of an event described in Section 4(a), 4(c)(5) or 4(c)(ii) above occurring and such Sections shall not be operative, unless and until all covenants and other terms of the Senior Subordinated Notes and the Indenture have first been fully complied with, including without limitation the making of a "Change of Control Offer" as defined in the Indenture and the purchase of any Senior Subordinated Notes tendered pursuant to such offer." 3. The number ef iberi ounumttrg a tile time of the adoption of the xmendroHir war. Common Stock, no par value ("Common Stock"): 5,385,189 Senior Preferred Stock, par value $.01 per ahare ("Senior Preferred Stock"); 23,619,888 The Iota) numbs of ilurej entitled to vote thereon wu: Common Stock: 5,385,189 Senior lYu*cired Stock; 23,619,888 Doifc>(Y<`4ViW).i MAY 22 2003 14:48 Q/OO&m&T 7324381971 PAGE.02 05/22/2003 14:44 FAX 7324381971 ' MAY 22 2003 11:01 FR PUR 8. G I< KIR @03 212 373 2780 TO 0162230221212554 P.03/04 If tha shsnu of my class erieriea of shares ere entitled to vote thereon u a clan. net forth below the designation and nurabarof 1 outstanding shut i cndUcd to vote tfenmnoefeach such dan nr aeries. (Oiallif not applicable). Senior Preferred Stock; 23,619,888 4. The number of shares sodas tor10(1 against such amendment it as fbHo*l; (Ifthe abate* Of any elisa or scrim an cadtlat to vote u a class, set forth the number of lhaaes or each such class and sarfss voting fcr and again* the smsndronnt. mipeatvaly). Number of Shares Vnrinv Hnr Amandmani Numbtlf (ifStltn* Vflfihg AgUllVt Atmimottt t Common: 3,972,033 Common: 0 Senior Preferred: 16,729,155 Senior Profaned; 0 5. B the amendment provides for an exchange, leeluatfieation or cancellation ofIssued ah area, act ftxth a statement of the | manner (n which the sama riuli he aflboed. (Omit if iretsppiitable). N/A 6. 0that provision.; lOrnlt if not applicable}. N/A [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.] ! i I f i i l f MflV 22 2003 14:40 7324381971 PAGE.03  05/22/2003 14:44 FAX 7324381971 ' MOV 22 2003 11:02 FR PUR 2 G ua/iwuuj i:ii rAi KIR @04 212 373 2708 TO B162232021212364 P. W^04 Pawifta *_ i*y ofMay, 2003 Newt Wfflitm B. SKtfiTrf Tiu* Executive Vies FtotUmt May U* mew** fcy tht ChltnaBl <fdw Bond,SK Ub hwtteat SC aVtoBate* f fl* C*poctas> MRV 22 2003 14:43 7324381371 PAGE.04 UMC-2 11/03 New Jersey Division of Revenue Certificate of Merger/Consoildatlon (Profit Corporations) FILED DEC 1 7 2004 STATE TREASURER This Tom* may he uaed to record the merger of consolidalion of corporation with or into mother business entity or entities, pursuent to NJ5A 14A. Applicant* mot Insure strict compliance with (he requlremetrts ofState law end insure thst ail Sling requirements are met This form is intended to simplify riling with the State Treasurer. Applicants are advised to seek, out private legal advice before submitting filings to the Department of the Treasury, Division or Revenue*! office. 1. Type ofFiling (check one): * Merger __Consolidation 2. Name of Surviving Business Entity: Interline Brands, Inc. (A New Jersey Corporation) 3. Name(i)/Jurisdietion($) of AU Participating Business Entities: Interline brands, Inc.. Interline Brands, Inc. Interline Subsidiary, Inc. 4. Date MergerAConscildBtlon adapted: November 24,2004 fitfawwe - New Jersey New Jersey Identification 1 Assigned by Treasurer (Ifapplicable) 010007776? 0100930496 <''' 5. Voting: (all corporations Involved; attach additional sheets if necessary! a Ccoorp. Name Interline Brands, Inc. (A Daetlaware Corporation) Outstanding Shares 100 - Ifapplicable, set fonh the number and designation of any class or series of ihares entitled to vote. 100 aharssoTcommon stock, par valus VQ1 par ahara sit' Merger/consulidallon plan was adopted by the unanimous written consent ofthe shareholders without a meeting (check: ** -b corp.Nsme Interline Brands, Inc. (A New Jersey Corporation) outstanding Shares 28,999.297 If applicable, set forth the number and designation ofany class or series ofshares emitted to vole. 5499,649 shsrsa ofcommon atock. par valua lot par ehara 23.S9S.648 shores of tanlor preferred atock, par valua 9.04 parchare Common stock: 3497,OSS Voting For Senior profaned elodc It,605,934 Volina Aaainst 0 ! OR Merger/consolidation plan was adapted by (he unanimous written consent of the shareholders without e meeting (check). o corp, Name Interline Subsidiary, Inc. (A New Jersey Corporation) outstanding shares 1 u ifapplicable, set forth the number and designation ofany class or sertwofshares entitled to vote. 1 eharedt common tt&k. par value SOI per share I 6. Service ofProcess Address (For use if the surviving business entity is not authorized or registered by the State Treasurer The surviving business entity agrees that it may be served with process in this State in any action, suit or proceeding tor the enforcement ofmy obligation of any domestic or foreign corporation, previoualy amenable to suit in fhta State, which is a party to this mergtr/consolidaiion, and in any proceeding for the enforcement ofthe rights ofa dissenting shareholder ofsuch domestic corporation against die surviving corporation. The Treasurer is hereby appointed as agent to accept service ofprocess in any such action, suit, or proceeding which shall be forwarded to the surviving business entity at the Service of Process address stated above, The Surviving Business Entity also agrees that it wilt promptly pay to the dissenting shareholders of any such domestic corporation the amount, ifany, to which they may be entitled under the provisions ofTitle 14A. Certificate of Merger/Consolidadon UMC-2 Page 2 ?. Effective Date (see inst.): December 21, 2004 Nome Midtael J. Grebe Midiael J. Grebe Michael J. Grebe Title Dale ' FraUM art CCO. MAa Irartt, Inc. ia BWaw, CmnScnl 12/16/04 Pm+UrtmiCa,M*la*8mnH.lnc. 13/-14/0-4. St^iaHanUoaJi*u*nw>CCoEpOo,WnXhaCmil_S_o_bo_tfVY. In* 1.2 /.I .fiyLQA: `Remember to attach: 1) the plan ofmerger or consolidation; and 2) Ifthe surviving or resulting business is not a registered nr authorized domestic or foreign corporation, a Tex Clearance Certificate for each participating corporation. NJ Division of Revenue, PO Box 208, Trenton NJ 08625 AGREEMENT AND PLAN OF MERGER AMKEX t, This AGREEMENT AND PLAN OF MERGER is dated as ofDecember 10,2004 (this "Agreement"!, by and among Interline Brands, Inc., a New Jersey corporation ("Interline NJ'1. Interline Brands, Inc., a Delaware corporation ("Holdco"). and Interline Subsidiary, Inc., a New Jersey corporation ("Subco"!. WHEREAS, as of the date hereof, Holdco is a direct wholly-owned subsidiary ofInterline NJ and Subco is a direct wholly-owned subsidiary of Holdco; WHEREAS, Interline NJ and Subco desire to engage in a transaction consisting ofthe merger ofInterline NJ with and into Subco with Interline NJ as the surviving coiporation (the "Merger"!, pursuant to the terms and conditions of this Agreement and in accordance with Section 14A:10-1 of the New Jersey Business Corporation Act, as amended (the "NJBCA"!: WHEREAS, the respective boards ofdirectors of Interline NJ, Holdco and Subco have determined that die Merger, structured in the manner contemplated herein, is desirable and in the best interests oftheir respective shareholders and, by resolutions duly adopted, have approved and adopted this Agreement; WHEREAS, Interline NJ has formed Holdco in connection with die initial public offering (the "IPO"! of shares ofcommon stock of Holdco, par value $0.01 per share (the "Holdco Common'*!, in order to have a Delaware bolding company issuer for the IPO; WHEREAS, Holdco, the sole shareholder of Subco, and Interline NJ, the sole shareholder ofHoldco, have each adopted and approved this Agreement in accordance with Section 14A:10-3 ofthe NJBCA; WHEREAS, for U.S. federal income tax purposes die parties intend that, so long as former shareholders of Interline NJ exchange an amount of stock in Interline NJ which constitutes "control" ofInterline NJ (within the meaning of Section 368(a)(2)(E) ofthe Internal Revenue Code of 1986, as amended (the "Code")), the Merger will qualify as a reorganization within the meaning ofSection 368(a) ofthe Code and the rules and regulations promulgated thereunder (the "Regulations"); that this Agreement constitutes a plan ofreorganization within the meaning ofRegulation Section i.368-2(g); and the Merger will be treated as part ofa transaction that qualifies under Section 351 of the Code and the Regulations thereunder; and WHEREAS, Interline NJ, Holdco and Subco desire to make certain representations, warranties, covenants and agreements, each to the other, in connection with the Merger and also to prescribe various conditions to the Merger. DoaD.NY:7425.3& NOW, THEREFORE, in consideration of the premises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I THE MERGER 1.1 The Merger. Subject to the terms and conditions hereof. Interline NJ shall merge with and into Subco as soon as practicable following the satisfaction or waiver ofthe conditions set forth in Section 4.1 hereof. Interline NJ shall be the surviving corporation in the Merger (the "Surviving Corporation"-), and, at the Effective Time (as defined in Section 1.21. the separate existence ofSubco shall cease. The corporate existence ofInterline NJ, with its purposes, powers and objects, shall continue unaffected and unimpaired by the Merger, and as the Surviving Corporation it shall succeed to all rights, assets, liabilities and obligations of Subco as and to the extent provided in Section 14A: 10-6 of the NJBCA. 1.2 Effective Time. The Merger shall become effective (the "Effective Time") upon the filing by Interline NJ ofa certificate ofmerger (the "Certificate of Merger"! with the Secretary of State of the State ofNew Jersey, or such later time as may be set forth in the Certificate of Merger, pursuant to Sections 14A:l-6 and 14A:10-4.1(2) ofthe NJBCA. 1.3 Certificate of Incorporation. The Certificate of Incorporation of Interline NJ, as amended and restated at the Effective Time to read in its entirety as set forth on Exhibit A, shall be the Second Amended and Restated Certificate of Incorporation of the Surviving Cotporation (the "Restated Charter"), until duly amended or repealed in accordance with the provisions thereof and of applicable law. . 1.4 Bv-Laws. The Bylaws oflhterline NJ, as amended and restated in its entirety at the Effective Time, shall be the Second Amended and Restated By-laws of the Surviving Corporation (the "Restated Bv-Laws") until duly amended or repealed in accordance with the provisions thereofand ofapplicable law. 1.5 Officers and Directors. At the Effective Time, the directors and officers of Interline NJ immediately prior to the Effective Time shall be and constitute the directors and officers of the Surviving Corporation until their successors shall have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Restated Charter and By-Laws. 0oe#HY6:74IMMS 2 ARTICLE II CONVERSION OF SECURITIES 2.1 Effect ofthe Merger on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part ofInterline NJ, Holdco, Subco, or the holder ofany shares ofcapital stock ofInterline NJ, Holdco or Subco: (a) Conversion ofSubco Capital Stock. Each share of common stock, without par value, ofSubco (the "Subco Common"! issued and outstanding immediately prior to the Effective Time shall be converted into and become the right to receive (i) one hundred (200) shares ofcommon stock, without par value, of the Surviving Corporation and (ii) one share ofSenior Preferred Stock, par value $0.01 per share, ofthe Surviving Corporation, each of which shall be fully paid and non assessable. (b) Cancellation ofHoldco Stock. Each share of stock of Holdco owned by Interline NJ immediately prior to the Effective Time shall be automatically cancelled and shall cease to exist without being converted into any stock or other consideration whatsoever. (c> Cancellation oflnterline NJ Treasurv Stock. Each share of stock of Interline NJ owned by Interline NJ immediately prior to the Effective Time shall be automatically cancelled and shall cease to exist without being converted into any stock or other consideration whatsoever. (d) Effect of Merger on Common Stock and Preferred Stock of Interline NJ. Each share ofcommon stock, without par value, of Interline NJ (the "Interline NJ Common**) and each share ofSenior Preferred Stock, par value $0.01 per share, of Interline NJ, (the "Interline NJ Preferred*''! issued and outstanding immediately prior to the Effective Time, shall be converted into die following (the "Merger Consideration"): (i) Interline Common Stock. Each issued and outstanding share of Interline NJ Common shall be converted into the right to receive that number ofnewly issued, fully paid and non-assessable shares of Holdco Common equal to the Common Stock Equity Consideration Per Share without interest, subject to the fractional share provisions in Section 2.2(c). Each share of Interline NJ Common that has been converted into the right to receive shares of Holdco Common as provided in this subsection 2.1(d)(i) shall be canceled in accordance with Section 2.2 and shall cease to exist, and the holder of certificates which immediately prior to the Effective Time represented those shares (the "Interline NJ Common Certificates") shall cease to have any rights with respect to those shares, other than toe right to receive certificates representing shares of Holdco Stock ("Holdco Certificates") upon surrender oftoe Interline NJ Common Certificates in accordance with Section 2.2. Doc #;NY6:74265.20 3 (ii) Interline Preferred Stock. Each issued and outstanding share of Interline NJ Preferred shall be converted into the right to receive (a) cash in an amount equal to the Preferred Stock Cash Consideration Per Share without interest and (b) that number ofshares ofHoldco Common equal to the Preferred Stock Equity Consideration Per Share, subject to the fractional share provisions in Section 2.2(cV Each share ofInterline NJ Preferred that has been converted into the right to receive shares ofHoldco Common and cash as provided in this subsection 2. l(d)(ii) shall be cancelled in accordance with Section 2.2 and shall cease to exist, and the holder ofcertificates which immediately prior to the Effective Time represented those shares (the "Interline NJ Preferred Certificates"! shall cease to have any rights with respect to those shares, other than the right to receive Holdco Certificates and the Preferred Stock Cash Consideration Per Share upon surrender of the Interline NJ Preferred Certificates in accordance with Section 2.2. (iii) Interline Potions. Upon the consummation ofthe Merger, each option to purchase shares ofInterline Common outstanding immediately prior to the Effective Time (each, an "Interline NJ Option" and collectively, the "Interline NJ Options**! shall by virtue of Section 5 of the Wilmar Industries, Inc. 2000 Stock Award Plan (the "Stock Plan"! pursuant to which it was granted, and without any action by the holder ofeach such Interline NJ Option, be adjusted and deemed to be an option (each, an "Exchange Option"! such that the holder ofthe Exchange Option shall have an option to purchase that number of shares of Holdco Common equal to the number of shares of Interline NJ Common underlying such Interline NJ Option multiplied by the Common Stock Equity Consideration Per Share. Each Exchange Option shall have an exercise price equal to the exercise price of the corresponding Interline NJ Option prior to such adjustment divided by the Common Stock Equity Consideration Per Share. The Exchange Options shall be administered by the board ofdirectors ofHoldco or such committee thereofas shall be designated from time to time by such board, and shall continue to be subject to the other terms and conditions to which the corresponding Interline NJ Option was subject immediately prior to the Effective Time. For the avoidance ofdoubt, other than as provided in this paragraph, the Exchange Option will be governed by the Stock Plan and the award agreement entered into thereunder. In connection with the issuance ofthe Exchange Options, Holdco shall reserve for issuance the number ofshares ofHoldco Common that will become subject to the Exchange Options pursuant to this Section 2.1fl>Viift. For purposes of this Section 2; "Common Stock Equity Consideration Per Share" means the Common Stock Equity Consideration Share Number divided by the Interline NJ Common Share Number. "Common Stock Equity Consideration Share Number*' means an amount equal to the greater of (a) the Total Existing Equity Value less the Preferred Stock Equity Consideration Value and (b) the Total Existing Common Minimum Equity Consideration Amount, in each case divided by the IPO Price Per Share. "Existing Common Minimum Equity Consideration" means $1,000,000. Doc #:NY6:742659.26 4 "Existing Holdco Common Share Number*' means the aggregate number ofshares of Holdco Common to be outstanding immediately after the IPO, legs the number ofshares ofHoldco Common to be issued in the IPO, in each case as set forth in the Prospectus. "Interline NJ Common Share Number*' means the aggregate number ofshares ofInterline NJ Common issued and outstanding immediately prior to the Effective Time plus the aggregate number of shares ofInterline NJ Common issuable upon exercise ofthe Interline NJ Warrants issued and outstanding immediately prior to the Effective Time. "Interline NJ Warrantmeans each outstanding warrant to purchase shares ofInterline NJ Common pursuant to the Warrant Agreement between Wilmar Industries, Inc. (a prcdccessor-in-interest to Interline NJ) and Fleet Corporate Finance, Inc. and Allied Capital Corporation, dated as of May 16,2000, as amended September 29, 2000. "IPO Price Per Share" means the price to the public ofeach share ofHoldco Common to be issued and sold in connection with die IPO, as set forth in the Prospectus. "Preferred Stock Cash Consideration Per Share" means an amount, calculated as to each share ofInterline NJ Preferred, equal to the Preferred Stock Cash Consideration multiplied by a fraction, the numerator ofwhich is (a) the Liquidation Value per share of Interline NJ Preferred of $10, plus an amount equal to all accrued and unpaid dividends thereon as of the Effective Time, and denominator ofwhich is (b) the Preferred Stock Liquidation Value. "Preferred Stock Cash Consideration'' means an amount equal to (a) $55,000,000 (or such lesser amount as may be authorized by resolution ofthe Board ofDirectors adopted prior to the Effective Time based upon the advice ofthe underwriters in the IPO regarding market conditions) plus (b) an amount equal to the excess of the price to the public of shares in the IPO over $200,600,000 (or such lesser amount as may be authorized by resolution ofthe Board ofDirectors adopted prior to the Effective Time based upon the advice ofthe underwriters in the IPO regarding market conditions) (after deducting underwriters' discounts and commissions on such excess amount); provided, that that in no event shall the Preferred Stock Cash Consideration be less than $25,000,000. "Preferred StockEquity Consideration Per Share" means an amount, calculated as to each share of Interline NJ Preferred, equal to the Preferred Stock Equity Consideration Share Number multiplied by a fraction, the numerator ofwhich is (a) the Liquidation Value per share ofInterline NJ Preferred of$10, plus an amount equal to all accrued and unpaid dividends thereon as of the Effective Time, and denominator ofwhich is (b) the Preferred Stock Liquidation Value. "Preferred Stock Equity Consideration Value" means the Preferred Stock Equity Consideration Share Number multiplied by the IPO Price Per Share. "Preferred Stock Equity Consideration Share Numbed' means an amount equal to the lesser of(a) the Preferred Stock Liquidation Value less the Preferred Stock Cash D0CftNY:7426jr.3 5 Consideration and (b) Total Existing Equity Value less the Existing Common Minimum Equity Consideration, in each case divided by the IPO Price Per Share. "Preferred Stock Liquidation Value" means the aggregate Liquidation Value (as defined in the Certificate of Incorporation ofInterline NJ) plus an amount equal to all accumulated and unpaid dividends on the Interline NJ Preferred as ofthe Effective Time. "Prospectus" means the prospectus relating to the IPO containing the IPO Price Per Share. "Total Existing Equity Value" means the IPO Price Per Share multiplied by the Existing Holdco Common Share Number. 22 Exchange Procedures. (a) Prior to or promptly after the Effective Time, Interline NJ shall cause to be mailed or otherwise delivered to each holder ofrecord ofan Interline NJ Common Certificate or an Interline NJ Preferred Certificate immediately prior to the Effective Time (the "Certificates"!. (i) a letter oftransmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery ofthe Certificates to Holdco (or such exchange agent as shall be designated thereby, hereinafter the "Exchange Agent**! and shall be in a form and have other such provisions as Holdco may reasonably specify and (ii) instructions for use in effecting the surrender of the Certificates for cancellation in exchange for the Merger Consideration. Upon surrender ofa Certificate for cancellation to Holdco or the Exchange Agent together with such letter oftransmittal, duly executed, and such other documents as may reasonably be required by Holdco or the Exchange Agent, the holder ofsuch Certificate shall be entitled to receive in exchange therefor, and Holdco or die Exchange Agent shall promptly deliver, the Merger Consideration for each share of Interline NJ stock formerly evidenced by such Certificate, and such Certificate shall thereupon be cancelled. (b) Ifpayment ofthe Merger Consideration is to be made to a person other than the person in whose name the surrendered Certificate is registered on the stock transfer books ofInterline NJ, it shall be a condition of payment to the holder of a Certificate that it be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason offoe payment offoe Merger Consideration to a person other than the registered holder or shall have established to the satisfaction ofHoldco that such taxes are not applicable. Until surrendered as contemplated by this Section 2.2(al. each Certificate shall be deemed at any time after foe Effective Time to represent only the right to receive upon such surrender the Merger Consideration, without interest, into which foe shares theretofore represented by such Certificate shall have been converted pursuant to Article n ofthis Agreement. (c) Delivery ofMerger Consideration to Interline NJ Shareholders Without Certificates. Promptly after foe Effective Time, Holdco or foe Doc#:NV:J4J*.2S 6 Exchange Agent shall cause the Merger Consideration to be mailed or otherwise delivered to each holder ofrecord of Interline NJ stock who, as ofthe Effective Time, had not yet been issued a Certificate representing such Interline NJ stock. (d) No Fractional Shares. No certificates or script representing fractional shares ofHoldco Common shall be issued as a result ofany conversion provided for in this Article II. All fractional shares shall be rounded to the nearest whole number, with 0.5 rounded up. Ifmore than one Certificate shall be surrendered for the account ofthe same holder, the number ofshares ofInterline NJ for which Certificates have been surrendered shall be computed on the basis ofthe aggregate number ofshares (on an as-converted to Holdco Common basis) represented by the Certificates so surrendered. No cash shall be paid in lieu of fractional shares. (e) Withholding. Interline NJ, the Surviving Corporation and Holdco shall be entitled to deduct and withhold from any Merger Consideration payable under this Agreement such amounts as may be required to be deducted or withheld therefrom under any applicable federal, state, local or foreign tax laws. To the extent such amounts are so deducted and withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the parson in respect ofwhich such deduction and withholding was made. 2.3 No Appraisal Rights. No appraisal rights shall be available to the holders of Interline Common or Interline Preferred in connection wife fee Merger. 2.4 Tax Treatment. Each of fee parties hereto agrees that it shall take such action, and refrain from taking any action, as may be necessary to cause fee Merger to qualify as a reorganization within fee meaning of Section 368(a) of fee Code and the Regulations thereunder so long as former shareholders of Interline NJ exchange an amount of stock in Interline NJ which constitutes control of Interline NJ (within fee meaning ofSection 368(a)(2)(E) ofthe Code); shall take such action, and refrain from taking any action, as may be necessary to cause fee Merger to be treated as part ofa transaction under Section 351 of fee Code and fee Regulations thereunder, and shall not take any position inconsistent therewith for U.S. federal income tax purposes, unless required to do so by a change in law or final determination in proper proceedings. ARTICLE in REPRESENTATIONS AND WARRANTIES 3.1 Representations and Warranties ofInterline NJ. Interline NJ hereby represents and warrants to Holdco and Subco that Interline NJ (i) is a corporation duly incorporated, validly existing and in good standing under fee laws of the State of New Jersey; (ii) has obtained fee approval ofits Board of Directors to execute and deliver this Agreement and to consummate fee transactions contemplated hereby, including to effect fee Merger, (iii) subject only to the adoption ofthis Agreement by fee Requisite Shareholder Vote (as defined in Section 4.1(al below), has frill corporate power and authority to execute, deliver and perform this Agreement and to consummate fee Do#:NY;742M9. 7 transactions contemplated hereby; (iv) has adopted and approved this Agreement in accordance with the NJBCA; (v) the execution of this Agreement and the consummation ofthe transactions contemplated hereby do not violate any provisions of its organizational documents or any agreements or instruments to which it is a party, except as could not be reasonably expected to materially impair or delay its ability to consummate die transactions contemplated hereby; and (vi) this Agreement has been duly and validly executed and delivered by Interline NJ and constitutes a legal, valid and binding agreement ofInterline NJ, enforceable against Interline NJ in accordance with its terms (except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors' rights generally or by the principles governing the availability ofequitable remedies (the "Enforceability Exceptions"!!. 3.2 Representations and Warranties ofHoldco. Holdco hereby represents and warrants to Interline NJ and Subco as follows: (a) Holdco (i) is a corporation duly incorporated, validly existing and in good standing under the laws ofthe State ofDelaware; (ii) has full corporate power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby; (iii) has adopted and approved this Agreement in accordance with the Delaware General Corporation Law, (iv) the execution ofthis Agreement and the consummation ofthe transactions contemplated hereby do not violate any provisions of its organizational documents or any agreements or instruments to which it is a party, except as could not be reasonably expected to materially impair or delay its ability to consummate the transactions contemplated hereby; and (v) this Agreement has been duly and validly executed and delivered by Holdco and constitutes a legal, valid and binding agreement of Holdco enforceable against Holdco in accordance with its terms (except as enforceability may be limited by the Enforceability Exceptions). (b) As ofthe Effective Time, the authorized capital stock of Holdco will consist of 100,000,000 shares ofHoldco Common and 20,000,000 shares of preferred stock ofHoldco, par value $0.01 per share. Upon consummation of the Merger, each share of Holdco Common issued as part ofthe Merger Consideration will be duly authorized, validly issued, fully paid and non-assessable, and each share ofHoldco Common to be issued upon exercise ofthe Exchange Options will be duly authorized, validly issued, fully paid and non-assessabie when issued. 3.3 Representations and Warranties of Subco. Subco hereby represents and warrants to Interline NJ and Holdco as follows: (a) Subco (i) is a corporation duly incorporated, validly existing and in good standing under the laws ofthe State ofNew Jersey; (ii) has obtained the approval ofits Board of Directors and Holdco, its sole shareholder, to execute and deliver this Agreement and to consummate the transactions contemplated hereby, including to effect the Merger, (iii) has fiiU corporate power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby; (iv) has adopted and approved this Agreement in accordance with die NJBCA; (v) the execution ofthis Agreement and the consummation ofthe transactions Doc*NYKM3<$.26 8 contemplated hereby do not violate any provisions of its organizational documents or any agreements or instruments to which it is a party, except as could not be reasonably expected to materially impair or delay its ability to consummate die transactions contemplated hereby; and (vi) this Agreement has been duly and validly executed and delivered by Subco and constitutes a legal, valid and binding agreement of Subco enforceable against Subco in accordance with its terms (except as enforceability may be limited by the Enforceability Exceptions). (b) As ofthe date of this Agreement and the Effective Time, the authorized capital stock ofSubco consists solely ofone share of Subco Common, which share is issued and outstanding and is held by Hoidco. Such issued and outstanding share of Subco has been duly authorized and validly issued and is fully paid and non assessable. (c) Subco has been formed solely for the purpose of effectuating the Merger, and has never held any assets or had any liabilities, and has never been engaged in any trade or business, or investment activities. ARTICLE IV CONDITIONS, AMENDMENT AND TERMINATION 4.1 Conditions to Effect the Merger, The obligations ofthe parties hereto to consummate the transactions contemplated hereby, including to effect the Merger, shall be subject to the fulfillment or waiver at or prior to the Effective Time of the following conditions: (a) In accordance with Section 14A: 10-3 of the NJBCA, this Agreement shall have been approved by the Requisite Shareholder Vote ofInterline NJ. The "Requisite Shareholder Vote" means the adoption ofthis Agreement by (i) the shareholders ofInterline NJ holding at least sixty percent (60%) ofthe Interline NJ Common entitled to vote thereon, (ii) the shareholders ofInter!ine bolding at least sixty percent (60%) ofthe outstanding shares of Interline NJ Preferred entitled to vote thereon and (iii) a majority ofshareholders ofInterline NJ entitled to vote thereon. (b) The representations and warranties contained in Article HI hereofshall be true and correct in all material respects on and as ofthe Effective Time as ifmade on and as ofsuch date. 4.2 Amendments. At any time prior to the Effective Time, this Agreement may be amended, modified or supplemented by the parties hereto, so long as (a) no amendment that requires shareholder approval under applicable laws shall be made without such required approval and (b) such amendment, modification or supplement has been duly approved by the board ofdirectors ofeach of the parties hereto. 4.3 Waiver. At any time prior to the Effective Time, the parties hereto by action taken by their respective boards ofdirectors may (a) waive any inaccuracies in Doc #;NY6:74265W6 9 the representations and warranties contained herein or in any document delivered pursuant hereto and (b) waive compliance with any ofthe agreements or conditions contained herein; provided, however, that the parties may not waive compliance with the conditions set forth in Section 4.1fa! hereof Any agreement on the part ofa party hereto to any such extension or waiver shall be valid only ifset forth in an instrument in writing signed on behalfofsuch party. 4.4 Termination. This Agreement may be terminated at any time prior to the Effective Time, notwithstanding the approval by the shareholders ofany or all of Interline NJ, Holdco or Subco, (a) by mutual consent ofthe respective boards ofdirectors of Interline NJ, Holdco and Subco or (b) by any ofInterline NJ, Holdco or Subco ifthe Merger shall not have been consummated on or before January 31,2005 (or such later date as may be agreed to by interline NJTHoldco ahd Subco in writing). In the event of the termination ofthis Agreement in accordance with the previous sentence, this Agreement shall thereafter become void and have no effect and no party hereto shall have any liability to the other parties hereto or its shareholders or directors or officers in respect thereof. ARTICLE V MISCELLANEOUS PROVISIONS 5.1 Non-Survival ofRepresentations and Warranties. All representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall not survive the Effective Time. 5.2 Further Assurances. Each of the parties agrees to execute such documents and instruments and to take whatever action may be necessary or desirable to consummate the transactions contemplated hereby, including to effect the Merger. 5.3 Governing Law. This Agreement shall be construed under and in accordance with the laws ofthe State ofNew Jersey applicable to contracts to be fully performed in such State, without giving effect to choice of law principles. 5.4 Binding Effect Successors and Assigns. This Agreement may not be assigned by any party without the written consent ofeach ofthe other parties hereto. This Agreement shall be binding upon and inure to the benefit ofthe respective successors and permitted assigns of the parties hereto. 5.5 No Other Agreement or Understandings. This Agreement embodies all ofthe agreements and understanding in relation to die subject matter of this Agreement, and no covenants, understandings or agreements in relation to this Agreement exist among die parties, except as expressly set forth in this Agreement. 5.6 No Third Party Benefit. Nothing expressed or implied in this Agreement shall be construed to confer upon or give to any person, firm or limited Doe #:NY6:742699.2tf 10 liability company, other than a party to this Agreement, any rights or remedies under or by reason of this Agreement. 5.7 Severability. Ifany one or more ofthe provisions contained herein, or the application thereofin any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and ofthe remaining provisions hereofshall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits ofthe remaining provisions hereof. 5.8 Rules of Construction. Unless the context otherwise requires, references to sections or subsections refer to sections or subsections of this Agreement. Any ambiguities or interpretations ofthe provisions ofthis Agreement shall be made in good faith by the Board ofDirectors of Holdco, and shall be binding and determinative on all parties. 5.9 Counterparts. This Agreement may be executed in separate counterparts, each ofwhich, when so executed, shall be deemed to be an original, and such counterparts when taken together shall constitute but one and the same instrument. [Remainder ofpage intentionally left blank] . Doc ftNY6:?42659J4 u m WITNESS WHEREOF, Interline NJ, HoJdco and Subco have caused this Agreement to be signed by their respective officers thereunto duty authorized as of the day Erst written above. Interline Brands, Inc., a New Jersey Corporation: INTERLINE BRANDS, INC. By; Name; William E. Sanford Title: Executive Vice President and ChiefOperating Officer Interline Brands, Inc,, a Delaware Corporation: INTERXJNEJpjRANDS, INC. s-\ Name: William E. Sanford Title: Executive Vice President and ChiefOperating Officer Interline Subsidiary, Inc., a New JerseyCorporation INTERLINE SUBSIDIARY, INC. By. Name: William E. Sanford Title: Executive Vice President and ChiefOperating Officer 12 Dw EXHIBIT A SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF INTERLINE BRANDS, INC. FIRST. The name of the corporation is INTERLINE BRANDS, INC. (the "SE3&2B''). SECOND. The registered office ofthe Corporation in the State ofNew Jersey is located at 14 Scenic Drive Dayton, NJ 08810, and the name of its registered agent at such address is National Corporate Research, Ltd. The names and addresses ofthe current members ofthe Board ofDirectors of the Corporation (the "Board"! are set forth on Schedule A attached hereto. THIRD. The purpose of the Corporation is to engage in any lawfbl act or activity for which corporations may be organized under the New Jersey Business Corporation Act. FOURTH. 1. Designation. The total number of shares of all classes of stock which the Corporation shall have authority to issue is 101; of which 100 shares, no par value per share, are to be of a class designated "Common Stock" (the "Common Stock**! and one share, par value $0.01 per share, is to be ofa class designated Senior Preferred Stock (the "Senior Preferred 3122k")' The rights, preferences, privileges and restrictions granted to and imposed upon the Common Stock are set forth below in this ARTICLE FOURTH. Hie rights, preferences, privileges and restrictions granted to and imposed upon the Senior Preferred Stock are set forth in the attached Attachment A. 2. Dividends on Common Stock. Dividends shall be paid on the Common Stock what, as and ifdeclared by the Board. 3. , Voting Power. Except as otherwise expressly provided herein, or as required by law, each holder of Common Stock shall be entitled to vote on all matters and shall be entitled to one vote for each share ofCommon Stock standing in his name on the books ofthe Corporation. 4. other Rights Reserved to Cppmnn Stock. Except for and subject to those rights expressly granted to the holder ofthe Senior Preferred Stock, or except as may be provided by the laws ofthe State of New Jersey, the holders of Common Stock shall have exclusively all other rights of stockholders. FIFTH. 1. Election ofPirectors. Members of the Board may be elected either by written ballot or by voice vote, Doc NY6,75J0O.7 Ex. A-l 2. Limitation ofLiability. No director ofthe Corporation shall be personaUy liable to the Corporation or its stockholders for monetary damages far breach offiduciary duty as a director, provided that this provision shall not eliminate ot limit the liability ofa director (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or (c) for any transaction from which the director derived any improper personal benefits. Any repeal or modification ofthe foregoing provision shall not adversely affect any right or protection of a director ofthe Corporation existing at the time ofsuch repeal or modification. 3. Indemnification. (a) To the extent not prohibited by law, the Corporation shall indemnify any person who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a "Proceeding"!, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason ofthe fact that such person, or a person ofwhom such person is the legal representative, is or was a director or officer ofthe Corporation, or, at the request ofthe Corporation, is or was serving as a director or officer ofany other corporation or in a capacity with comparable authority or responsibilities for any partnership, joint venture, trust, employee benefit plan or other enterprise (an "Other Entity"), againstjudgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees, disbursements and other charges). Persons who are not directors or officers of the Corporation (or otherwise entitled to indemnification pursuant to the preceding sentence) may be similarly indemnified in respect ofservice to (he Corporation or to an Other Entity at the request of the Corporation to the extent the Board at any time specifies that such persons are entitled to the benefits of this Section 3 of this ARTICLE FIFTH. (b) The Corporation shall, from time to time, reimburse or advance to any director or officer or other person entitled to indemnification hereunder the fluids necessary for payment ofexpenses, including attorneys' fees and disbursements, incurred in connection with any Proceeding, in advance ofthe final disposition ofsuch Proceeding; provided, however, that, ifrequired by the laws ofthe State ofNew Jersey, such expenses incurred by or on behalfofany director or officer or other person may be paid in advance of foe final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalfof such director or officer (or other person indemnified hereunder), to repay any such amount so advanced ifit shall ultimately be determined by final judicial decision from which there is no further right of appeal that such director, officer or other person is not entitled to be indemnified for such expenses. (c) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 3 of this ARTICLE FIFTH shall not be deemed exclusive of any other rights to which a person seeking indemnification or reimbursement or advancement ofexpenses may have or hereafter be entitled under any statute, this Certificate of Incorporation, the By-laws ofthe Corporation, as amended (the "By-laws"!. Det*rNY*7S30K.7 ExiA-2 arty agreement, any vote ofshareholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. (d) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 3 ofthis ARTICLE FIFTH shall continue as to a person who has ceased to be a director or officer (or other person indemnified hereunder) and shall inure to the benefit ofthe executors, administrators, legatees and distributees ofsuch person. (e) The Corporation shall have power to purchase and maintain insurance on behalfofany person who is or was a director, officer, employee or agent ofthe Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent ofan Other Entity, against any liability asserted against such person and incurred by such person in any such capacity, or arising out ofsuch person's status as such, whether or not the Corporation would have the power to indemnify such parson against such liability under the provisions of this Section 3 of this ARTICLE FIFTH, (he By-laws or under the laws ofthe State ofNew Jersey or any other provision oflaw. (f) The provisions ofthis Section 3 ofthis ARTICLE FIFTH shall be a contract between the Corporation, on the one hand, and each director and officer who serves in such capacity at any time while this Section 3 ofthis ARTICLE FIFTH is in effect and any other person entitled to indemnification hereunder, on the other hand, pursuant to which the Corporation and each such director, officer, or other person intend to be, and shall be, legally bound. No repeal or modification ofthis Section 3 ofthis ARTICLE FIFTH shall affect any rights or obligations with respect to any state offsets then or theretofore existing or thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts. (g) The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 3 ofthis ARTICLE FIFTH shall be enforceable by any person entitled to such indemnification or reimbursement or advancement of expenses in any court ofcompetentjurisdiction. The burden of proving that such indemnification or reimbursement or advancement ofexpenses is not appropriate shall be on the Corporation. Neither the failure of die Corporation (including its Board, its independent legal counsel and its stockholders) to have made a determination prior to the commencement ofsuch action that such indemnification or reimbursement or advancement ofexpenses is proper in the circumstances nor an actual determination by the Corporation (including its Board, its independent legal counsel and its stockholders) that such person is not entitled to such indemnification or reimbursement or advancement ofexpenses shall constitute a defense to tire action or create a presumption that such person is not so entitled. Such a person shall also be indemnified for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement ofexpenses, in whole or in part, in any such proceeding. (h) Any director or officer of the Corporation serving in any capacity of (i) another corporation ofwhich a majority ofthe shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (ii) any employee benefit plan of Doc*KV4f7JJ007 Ex. A-3 the Corporation or any corporation referred to in clause (i) shall be deemed to be doing so at the request ofthe Corporation. (i) Any person entitled to be indemnified or to reimbursement or advancement ofexpenses as a matter ofright pursuant to this Section 3 ofthis ARTICLE FIFTH may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis ofthe applicable law in effect at the time ofthe occurrence of die event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basts ofthe applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought. Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or advancement ofexpenses is sought; provided, however, that ifno such notice is given, the right to indemnification or reimbursement or advancement ofexpenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought {REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Doc :NY6:7S10<W.7 Ex.A-4 Name: Michael J. Grebe Gideon Argov Christopher Behrens Barry Goldstein Ernest K. Jacquet John J. Gavin Stephen V. McKenna Charles W, Santoro Drew T, Sawyer SCHEDULEA fewti pfPirated Address: c/o interline Brands, Inc. 801 W. Bay Street Jacksonville, Florida 32204 c/o Interline Brands, Etc. 801 W. Bay Street Jacksonville, Florida 32204 c/o Interline Brands, Inc. 801 W. Bay Street Jacksonville, Florida 32204 c/o Interline Brands, Inc. 801 W. Bay Street Jacksonville, Florida 32204 c/o Interline Brands, Inc. 801 W. Bay Street Jacksonville, Florida 32204 c/o Interline Brands, Inc. 801 W. Bay Street Jacksonville, Florida 32204 , c/o Interline Brands, Inc. 801 W. Bay Street Jacksonville, Florida 32204 c/o Interline Brands, Inc. 801 W, Bay Street Jacksonville, Florida 32204 c/o Interline Brands, Inc. 801 W. Bay Street Jacksonville, Florida 32204 DoelWY;?j3006.y Sch. A-l ATTACHMENT A INTERLINE BRANDS, INC. CERTIFICATE OF DESIGNATION OF ' SENIOR PREFERRED STOCK, SETTING FORTH THE POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF SUCH SERIES OF PREFERRED STOCK INTERLINE BRANDS, INC., a New Jersey corporation (the "Corporation"!. DOES HEREBY CERTIFY: That pursuant to authority conferred upon (he Board ofDirectors ofthe Corporation (the "Board ofDirectors"! by the Second Amended and Restated Certificate of Incorporation ofthe Corporation (the "Certificate of Incorporation"!, and pursuant to the provisions ofChapter 7 ofthe New Jersey Business Corporation Act, the Board ofDirectors, by unanimous written consent in lieu ofmeeting, adopted the following resolution creating one series of preferred stock, which resolution is as follows: , WHEREAS, fire Board of Directors is authorized, within the limitations and restrictions stated in the Certificate ofIncorporation, to provide by resolution or resolutions for the issuance of one share ofpreferred stock, par value $0.01, of the Corporation (the "Preferred Stock"!, with such voting powers, full or limited, or without voting powers, and such other rights, preferences, privileges and restrictions as shall be stated and expressed in the resolution or resolutions providing for the issuance thereof adopted by the Board ofDirectors, and as are stated and expressed in the Certificate ofIncorporation, or any amendment thereto, including (but without limiting the generality of die foregoing) such provisions as may be desired concerning voting, redemption, dividends, dissolution or the distribution ofassets and such Dck*NV:75M0&? Attach. A-1 other subjects or matters as may be fixed by resolution or resolutions ofthe Board ofDirectors under the New Jersey Business Corporation Act; and WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to authorize and fix the terms ofone series ofPreferred Stock and the number of shares constituting such series. NOW, THEREFORE, BE IT RESOLVED: ARTICLE i. Senior Preferred Stock 1. Designation and Number of Shares. (a) There shall be hereby established a series ofPreferred Stock designated as "Senior Preferred Stock" (the "Senior Preferred**!, to consist of one share, par value $0.01 per share. (b) Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Article D below. 2. Rank. The Senior Preferred shall, with respect to dividend distributions, redemptions and distributions of assets and rights upon the liquidation, winding up and dissolution of the Corporation, whether voluntary or involuntary, rank senior to (a) all classes of common stock ofthe Corporation (including, without limitation, the common stock, no par value per share, ofthe Corporation (the "Common Stock"V>. and (b) each other class or series of Capital Stock ofthe Corporation hereafter created, each of which shall expressly provide that it ranks junior to the Senior Preferred with respect to dividend distributions and distributions of assets and rights upon the liquidation, winding up and dissolution of the Corporation (such Capital Stock, together with the Common Stock, the "Junior Stock"!. DM#.'HY(:7SJ006.? Attach. A-2 3. Dividends. (a) Beginning on the date of issuance ofthe Senior Preferred, the holder of the outstanding share of Senior Preferred shall be entitled to receive dividends payable in cash on such share ofSenior Preferred (subject to equitable adjustment whenever there shall occur a stock split, combination, reclassification or similar event involving the Senior Preferred) at an annual rate equal to 14%. All dividends with respect to such share of Senior Preferred shall (i) begin to accrue on a daily basis, (ii) be cumulative, whether or not earned or declared, (iii) be compounded quarterly from the date ofissuance ofsuch share and (ivj shall be payable when declared by the Board of Directors. (b) AH dividends accrued with respect to the share ofSenior Preferred pursuant to Section 3(a) shall be payable prior to the payment of any dividend on shams of any Junior Stock. No dividend may be paid on any securities ofthe Corporation rankingparipassu with the Senior Preferred unless such dividend is paid to the holder ofthe Senior Preferred also. (c) Dividends accrued on the Senior Preferred for any period less than a year shall be computed on the basis ofa 36S or 366-day year and the actual number ofdays elapsed in die period for which accruable. 4. JUquitiatian(a) In the event of any voluntary or involuntary liquidation, winding up or dissolution of the Corporation, the holder of the share ofSenior Preferred then outstanding shall be entitled to be paid for such share held, out ofthe assets ofthe Corporation legally available for distribution to its stockholders, an amount in cash equal to the sum of the Liquidation Value plus an amount in cash equal to all accumulated and unpaid dividends thereon to the date ofsuch liquidation, winding up or dissolution, whether or not declared. DoefcNY&insM.? Attach. A-3 before any payment shall be made or any assets distributed to the holders ofany shares ofJunior Stock. Except as provided in the preceding sentence, the holder ofthe Senior Preferred shall not be entitled to any distribution in the event ofany liquidation, winding up or dissolution ofthe Corporation. (b) Not less than thirty (30) days prior to the payment date stated therein, the Corporation shall mail written notice of any such liquidation, winding up or dissolution to the record holder ofthe Senior Preferred, setting forth in reasonable detail, to the extent known, the amount ofproceeds to be paid with respect to such share of Senior Preferred and the Junior Stock in connection with such liquidation, winding up or dissolution. (c) For the purposes of this Section 4, any transaction or series of transactions (as a result ofa tender offer, merger, consolidation or otherwise) that results in, or that is in connection with, (i) any Person or "group" (within the meaning of Section 13(dX3) of the Exchange Act) acquiring "beneficial ownership" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 51% or more ofthe then issued and outstanding shares ofCommon Stock, without giving effect to the issuance of shares under any security convertible into, exchangeable for or evidencing the right to purchase or otherwise receive any shares of Common Stock or (ii) the sale, lease, exchange, conveyance, transfer or other disposition (for cash, shares of stock, securities or other consideration) of all or substantially all ofthe property or assets of the Corporation to any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act), shall be deemed to be a liquidation ofthe Corporation under Section 4(a) (which transaction or series oftransactions shall be referred to herein as a "liquidation Event"!. Notwithstanding the foregoing, for so long as any ofthe Corporation's 1154 % senior subordinated notes (the "Senior Subordinated Notes") issued under an Indenture entered into by Doc.!NY6:T5J00fc7 Attach. A-4 the Corporation, Wilmar Holdings, Inc., Wilmar Financial, Inc., Glenwood Acquisition LLC and the Bank ofNew York, as trustee (as supplemented or amended the `indenture"!, remain outstanding until the first anniversary ofthe Stated Maturity (as defined in the Indenture) of the Senior Subordinated Notes (the "Senior Subordinated Notes Period"), no event described in Section 4(a), 4(c)(i) or 4{c)(ii) above shall be deemed to be a voluntary or involuntary liquidation, winding up, a dissolution or other Liquidation Event entitling holders ofthe Senior Preferred to any amounts under Section 4(a) above, unless such event shall also constitute a "Change in Control'' as defined in the Indenture. Furthermore, during the Senior Subordinated Notes Period, holders of the Senior Preferred shall not be entitled to any amounts under Section 4(a) above on account of an event described in Section 4(a), 4(e)(i) or 4(cX) above occurring and such Sections shall not be operative, unless and until all covenants and other terms ofthe Senior Subordinated Notes and the indenture have first been fully complied with, including without limitation, the making of a "Change ofControl Offer" as defined in the Indenture and the purchase of any Senior Subordinated Notes tendered pursuant to such offer. 5. Optional Redemption. The Corporation may redeem the share ofSenior Preferred outstanding at any time, upon a vote of the majority of the Board ofDirectors. Except as otherwise provided herein, the Cotporation shall mail written notice of the redemption ofthe Senior Preferred to the record bolder thereofnot more than sixty (60) nor less than thirty (30) days prior to the date on which such redemption is to be made. The Corporation shall redeem the share ofSenior Preferred in cash at a price per share equal to the sum ofthe Liquidation Value plus all accumulated and unpaid dividends thereon to the date ofmailing ofthe redemption notice, whether or not declared. ! j i I j ; ; I . ' ; ! ' . . Attach. A-5 6. Voting Rights. The holder ofthe share of Senior Preferred shall not be entitled orpermitted to vote on any matter required or permitted to be voted upon by the stockholders of the Corporation, except as otherwise required under New Jersey law and as follows: (i) in connection with any proposal that the Corporation shall authorize or issue additional shares of Senior Preferred or additional classes or series ofpreferred stock; (ii) any changes to the rights of the Senior Preferred relating to voting, redemption, dividends, dissolution or the distribution ofCorporation assets and any amendment to this Certificate of Designation; and (iii) in connection with such other subjects or matters that adversely affect tbe holder of Senior Preferred. 7. No Reissuance ofSenior Preferred. Any share ofSenior Preferred that has been redeemed or otherwise acquired by the Corporation shall be retired and canceled, shall resume the status of authorized and unissued shares of Preferred Stock and shall not be reissued, sold or transferred. 8. Business Dav. Ifany payment or redemption shall be required by the ' terms hereofto be made on a day that is not a Business Day, such payment or redemption shall be made on the immediately succeeding Business Day. ARTICLE II. Definitions As used in this Certificate of Designation, the following terms shall have the following meanings (with terms defined in the singular having comparable meanings when used in the plural and vice versa!, unless the context otherwise requires: "Affiliate" means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person. For the purposes ofthis definition, "control," when used with respect to any specified Person, means the power to direct or cause the direction ofthe management and DMftHYS.MlOac.7 Attach. A-6 policies ofsuch Person, whether through the ownership ofvoting securities, by contract or otherwise; and the tenns "controlling" and "controlled" have meanings correlative ofthe foregoing. "Business Day** means any day except a Saturday, a Sunday, or any day on which banking institutions in New York, New York are required or authorized by law or other governmental action to be closed "Capital Stock" means, with respect to any Person, any and all shares, interests, participations, rights in, or other equivalents (however designated and whether voting or non voting) of, such Person's capital stock and any and all rights, warrants or options exchangeable for or convertible into such capital stock (but excluding any debt security that is exchangeable for or convertible into such capital stock). "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Liquidation Value'* means, with reject to the share ofSenior Preferred, $379,917,082. "Person" means any individual, corporation, limited liability company, partnership, firm, joint venture, association,joint-stock company, trust, estate, unincorporated organization, governmental or regulatory body or other entity. "Voting Stock" of any Person means shares ofCapital Stock entitled (without regard to the occurrence ofany contingency) to vote for the election ofmembers ofrite board of directors or similar management body ofsuch Person. IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed by its duly authorized officer this 1 Oth day ofDecember, 2004. VP General Counsel& Secretary One :NYfc7S3006.7 Attach. A-7 t > FILED New Jersey Division of Revenue Certificate of Merger/Consoiidation DEC 3 0 2005 (Profit Corporations) STATE TREASURER This form may be uaed to record-the mergeror consolidation ofa corporation with or into anotherbusiness entity orentities, pursuant to NJSA ]4A. Applicants must insure strict compliance with the requirementsofState taw and insure that alt tilingrequirements are met This form j| intended tosimplify filing with the State Tlcasurer. Applicants are advised to seek out private legal advice before submitting filings to the Department ofthe Treasury, Division ofRevenue's office. 1. Type of Filing (check one): fKi.Mcrger I-; Consolidation 2. Name ofSurviving Business Entity; Interline Brands, Inc. (A New Jersey Corporation) 3. Nnmc(*yjuri*diction(s) ofAll Participating Business Entities*, Name Jurisdiction Identification # Assigned by Treasurer(ifapplicable) Interline Brands, Inc. CCS Enterprises. Inc. New Jersey Delaware - 0100077767 4. Date Merger/Consolidalion adopted: J2/21/05 5. Voting: (alt corporations involved; attach additional sheets ifnecessary) -a Carp. Name Interline Brands, Inc, Outstanding Share* 100 Ifexplicable, set forth the number and designation ofany class or series ofshares entitled to vote. Not applicable; see NJ. Stat $14A:10-5.I (ZOOS), Voting For Votina Against : OR Merger/consolfdatfon plan was adopted by the unanimout written consent ofthe iharebofdere without a meeting (check),! , b Coip.Nsmo CCS Enterprises, Inc. Outstanding Shares 1.037,18! Ifapplicable, sol forth the number and designation ofany class or series ofshares entitled to vote. Not applicable; see NJ. Stat S14A:10-S.l (2005). Voting For Voting Against : OR Mceger/eonsoUdatim plan was adopted by the unanimous written consent ofthe shareholders without a mooting (check).!-/. *c Cotp.Namo OutstauSngShares Ifapplicable, set forth the number and designationofany class or redes ofshare* entitled to vote. Voting For Voting Agahut : OR . Merger/consolidation plan was adopted by the unanimous written consent ofthe shareholder* without a meeting(check),! . 6. Service ofProcess Address (For use ifthe surviving business entity is not authorized or registered by the State Treasurer; Hie surviving business entity agrees that it may be served with process in tills State in eny action, suit or proceeding for the enforcement ofany obligation ofany domestic orforeign corporation, previously amenable to suit in tills State, which is a parly to fob mcrger/consolidatlon, and in any proceeding for the enforcement ofthe rights ofa dissenting shareholder ofsuch domestic corporation against the surviving corporation. , The Treasurer is hereby appointed as agent to accept service ofprocess in any such action, suit, or proceeding which shall be forwarded to the surviving business entity at the Service of Process address stated above. The Surviving Business Entity also agrees that it win promptly pay to the dissenting shareholders ofany such domestic corporation the amount, ifany, to which they may be entitled under the provisions ofTitie 14A. r Itwia O' Q)000'7r?'?cn Certificate of Merger/Consolidation UMC-2 Page 2 7. Effective Date (seefast): 12:01 *.., New York City time, on December 31, 2005. TKJe Vioe President, Caaasl Covnwl ml Smwfy. fatcriimiBimitl. Inc. (A Nw Jmey Capoatkn) VicePierldeiit M Antrust 5ecwtttr.CCSBatotpifoCT.liw. (A WwnwCorporation) Remember to attach: I) the-pfen of mergeror coniolfcUtion; and 2) ifthe surviving orresulting business is note registered or authorized domestic or foreign corporation, a Tax Clearance Certificate for each participating corporation. Ml Division ofRevenue, PG Box 303, Trenton NJ 03640 AGREEMENT AND PLAN OF MERGER This is an Agreement and Plan ofMerger (the "Plan ofMerger"), dated as of December 21,2005, by and among Interline Brands, Inc., a New Jersey corporation ('"biterline NJ"), and CCS Enterprises, be., a Delaware corporation and a wholly-owned subsidiary of Interline NJ ("CCS"). NOW, THEREFORE, in consideration ofthe premises and ofthe mutual agreement of the parties hereto, the parties hereby prescribe the terms and conditions ofthe merger and the mode of carrying the same into effect as fbllows: 1. Merger of CCS with and bto Interfere NJ. At the Effective Time (as such term is defined in Section 7 hereof), CCS will merge wife and into bteriine NJ (the "Merger"), and fee separate existence ofCCS will cease, bteriine NJ, which is sometimes hereinafter referred to as fee "Surviving Company." will be the surviving company from and after fee Effective Time (as hereinafter defined) offee Merger, and shall continue to exist as said Surviving Company pursuant to the provisions ofthe New Jersey Business Corporation Act. As a result offee Merger, all ofthe assets, properties and rights, and all ofthe debts, obligations and liens, ofCCS shall be vested in the Surviving Company, and the effects offee Merger shall be as provided in fee applicable state laws. 2. Approval of Mercer. The Plan ofMerger has been authorized and approved by resolutions offee Board of Directors of bteriine NJ, adopted by written consent dated as offee date hereof, in accordance wife applicable state laws. 3. Certificate of Incorporation. At fee Effective Time, fee Certificate of bcorporation of bteriine NJ shall he fee Certificate ofbcorporation ofthe Surviving Company, until thereafter changed as provided therein and by applicable law. 4. Directors and Officers. The directors and officers of bteriine NJ immediately prior to the Effective Time ofthe Merger shall be the directors and officers, respectively, offee Surviving Company from and after fee effective time of the Merger until their successors have been duly elected, appointed or qualified or until fee earlier oftheir death, resignation or removal in accordance wife the Certificate ofbcorporation and Bylaws ofthe Surviving Company. 5. Bylaws. At the Effective Time, fee Bylaws of bterlbe NJ shall be fee Bylaws of fee Surviving Company, until thereafter amended as provided therein and by law. 6. Shares. At fee Effective Time, and by virtue ofthe Merger, each then issued and outstanding share of the capital stock, and each share held in the treasury, of CCS shall be cancelled. No shares or other securities or other obligations ofbteriine NJ or any other entity shall be issued b consideration for fee cancellation offee shares of CCS. Each issued and outstanding share offee capital stock of fee bterlbe NJ shall remab issued and outstanding and shall not be affected by fee Merger. 12J9411S.3JBU3INESS 7. Filing. Effective Time. Ifthis Plan ofMerger has not been earlier terminated pursuant to Section 8 hereof (i) the parties will cause to be executed and filed and recorded any document or documents prescribed by applicable state laws, includingbut not limited to the appropriate statutory merger filings; (ii) will cause to be performed all necessary acts within the States ofNew Jersey and Delaware and elsewhere to effectuate the Merger herein provided for; and (iii) this Plan of Merger shall become effective as of 12:01 a.tn., New York City time, on December 31,2005. The effective time referred to in this subsection (iii) is referred to herein as the "Effective Time." It is understood that the parties hereto intend that the Effective Time shall occur as ofthe date ofthis Plan of Merger or as soon thereafter as practicable. 8. Termination. This Plan ofMerger may be terminated and the Merger abandoned by the Board ofDirectors of Interline NJ at any time prior to the Effective Time. Signature Page Follows 12194115.3.BUSINESS IN WITNESS WHEREOF, the parties hereto have caused this duly approved Agreement and Plan ofMerger to be executed by their respective authorized parties as of the date first written above. INTERLINE BRANDS ame: Laurence W. Howard Title: Vice President, General Counsel and Secretary CCS ENTERPRIi '-``''bfame; Laurence W. Howard ^ Title: Vice President and Assistant Secretary 121941 IS3.BUS1NESS lARCr FILED New Jersey Division of Revenue DEC 2 4 2008 STATE TREASURER I Certificate of Merger 01 OOO'TTlG'l Pursuant to NJSA 14A and NJSA 42:2B, this Certificate of Merger is being filed with the New Jersey Division of Revenue in connection with the merger of a limited liability subsidiary into its parent corporation. 1. Type of Filing (check one): FX] Merger i I Consolidation Name of Surviving Business Entity: Interline Brands, Inc. Address of the Surviving Business Entity: 901 W. Bay Street, Jacksonville, Florida 32204. 4. Name(s)/Jurisdiction(s) of All Participating Business Entities: Identification # Assigned by Treasurer (if applicable) 0100077767 0600188465 Name Interline Brands, Inc. AmSan. LLC Jurisdiction New Jersey Delaware Date Merger was adopted: December 23. 2008 6. Interline Brands. Inc., the parent corporation and sole member of AmSan, LLC, adopted the Agreement and Plan of Merger on December 23, 2008 by the unanimous written consent of the directors without a meeting. Pursuant to NJSA 14:10-3, no vote of the shareholders of Interline Brands. Inc. was required, 7. AmSan, LLC. the subsidiary, approved the Merger on December 23, 2008 in accordance with Delaware law. Under the Merger, AmSan. LLC, which is qualified to do business in New Jersey will be merged out of existence and no longer able to transact business in New Jersey. 8. Attached is a copy of the Agreement and Plan of Merger as approved by the directors of Interline Brands, Inc. and the sole Members and the Managers of AmSan, LLC. 9. Effective Date: This Certificate of Merger is executed as of this 23rd day of December, 2008, to be effective as of December 26, 2008. AMSAN, LLC Name: Kenneth D. Sweeter Title: Executive Vice President and COO Title: Manager AGREEMENT AND PLAN OF MERGER OF AMSAN, LLC (a Delaware limited liability company) and INTERLINE BRANDS, INC. (a New Jersey corporation) This AGREEMENT AND PLAN OF MERGER entered into this 23rd day of December, 2008. by AmSan. LLC, a limited liability company of the State of Delaware (the "LLC"), and approved by resolution adopted by its Managers on said date, and by Interline Brands, Inc. a business corporation of the State of New Jersey (the "Corporation"), and approved by resolution adopted by its Board of Directors on said date. WHEREAS, the LLC is a limited liability company of the State of Delaware with its principal office therein located at 801 W. Bay Street, Jacksonville. Florida 32204; and WHEREAS, the LLC has authority to issue membership interests, all of which are of one class; and WHEREAS, the Corporation is a business corporation of the State of New Jersey with its registered office therein located at 801 W. Bay Street, Jacksonville, Florida 32204; and WHEREAS, the total number of shares of stock which the Corporation has authority to issue is One Hundred Million (100,000.000) shares of Common Stock and Twenty Million (20.000.000) shares of Preferred Stock: and WHEREAS, the Delaware Limited Liability Company Act permits a merger of a limited liability company of the State of Delaware with and into a business corporation of the State of New Jersey; and WHEREAS, the New Jersey Business Corporation Act permits the merger of a limited liability company of with and into a business corporation of the State of New Jersey; and WHEREAS, the LLC and the Corporation and the respective Managers and Board of Directors thereof declare it advisable and to the advantage, welfare, and best interests of said entities and their respective Members and Shareholders to merge the LLC with and into the Corporation pursuant to the provisions of the Limited Liability Company Act of the State of Delaware, and pursuant to the provisions of the Business Corporation Law of the State of New Jersey upon the terms and conditions hereinafter set forth. NOW. THEREFORE, in consideration of the premises and of the mutual agreement of the parties hereto, being thereunto duly entered into by the LLC and approved by a resolution adopted by its Managers and being thereunto duly entered into by the Corporation and approved by a resolution adopted by its Board of Directors, this Agreement and Plan of Merger and the I1PUU^2 terms and conditions thereof and the mode of carrying the same into effect, together with any provisions required or permitted to be set forth therein, are hereby determined and agreed upon as hereinafter in this Agreement and Plan set forth, 1. The LLC and the Corporation shall, pursuant to the provisions of the Delaware Limited Liability Company Act and the provisions of the New Jersey Business Corporation Law, be merged with and into a single corporation, to wit, the Corporation, which shall be the Corporation from and after the effective time of the merger (and which is sometimes hereinafter referred to as the "Corporation"), and which shall continue to exist as said Corporation under its present name pursuant to the provisions of the General Corporation Law of the State of New Jersey. The separate existence of the LLC (which is sometimes hereinafter referred to as the "LLC"). shall cease at said effective time in accordance with the provisions of the Delaware Limited Liability Company Act. 2. The name of the Corporation shall be Interline Brands, Inc. 3. The present bylaws of the Corporation will be the bylaws of said Corporation and will continue in full force and effect until changed, altered or amended as therein provided and in the manner prescribed by the provisions of the North Carolina Business Corporation Law. 4. The directors and officers in office of the Corporation at the effective time of the merger shall be the members of the first Board of Directors and the first officers of the Corporation, all of whom shall hold their directorships and offices until the election and qualification of their respective successors or until their tenure is otherwise terminated in accordance with the bylaws of the Corporation. 5. All membership interests of the LLC shall be terminated as of the effective date of the merger. The issued shares of the Corporation shall not be converted or exchanged in any manner, but each said share which is issued as of the effective date of the merger shall continue to represent one issued share of the Corporation. 6. In the event that this Agreement and Plan of Merger shall have been fully approved and adopted upon behalf of the LLC in accordance with the provisions of the Delaware Limited Liability Company Act and upon behalf of the Corporation in accordance with the provisions of the New Jersey Business Corporation Law, the said entities agree that they will cause to be executed and filed and recorded any document or documents prescribed by the laws of the State of New Jersey, and that they will cause to be performed all necessary acts within the State of New Jersey and elsewhere to effectuate the merger herein provided for. 7. The Managers of the LLC and the Board of Directors and officers of the Corporation are hereby authorized, empowered, and directed to do any and all acts and things, and to make, execute, deliver, file, and record any and all instruments, papers, and documents which shall be or become necessary, proper, or convenient to carry out or put into effect any of the provisions of this Agreement and Plan of Merger or of the merger herein provided for. us2noo uru9*.