ARTICLES OF MERGER
OF
DYCOM ACQUISITION CORPORATION IV,
a Utah corporation
INTO
NIELS FUGAL SONS COMPANY,
a Utah corporation
March 8, 2000
In accordance with Sections 16-10a-1105 and 16-10a-1107 of the Utah
Revised Business Corporation Act (the "URBCA"), NIELS FUGAL SONS COMPANY, a Utah
corporation ("FUGAL"), as surviving corporation of a merger with DYCOM
ACQUISITION CORPORATION IV, a Utah corporation, hereby declares and certifies as
follows:
ARTICLE ONE
Plan of Merger
The Summary Agreement and Plan of Merger, dated as of February 14, 2000
(the "Plan of Merger"), by and among Dycom Industries, Inc., a Florida
corporation ("Acquiror"), Dycom Acquisition Corporation IV, a Utah corporation
("Merger Sub"), FUGAL, and the shareholders of FUGAL, is attached hereto as
Exhibit "A" and is incorporated herein by reference.
ARTICLE TWO
Shareholder Approval
The shareholders of each of FUGAL and Merger Sub were required to
approve the Plan of Merger. No shareholders were entitled to vote separately in
voting groups. The designation, number of outstanding shares, number of votes
entitled to be cast, and the total number of votes cast for and against the Plan
of Merger were as follows:
Corporation Outstanding Votes For Against
and Shares Entitled To
Designation Be Cast
- ---------------------- ------------------- -------------------- ----------------- -----------------
FUGAL 25,761 25,761 25,761 0
Common Stock
Merger Sub
Common Stock 100 100 100 0
The number of votes cast for the Plan of Merger was sufficient for approval.
ARTICLE THREE
Effective Time
Pursuant to Section 16-10a-1105(2), these Articles of Merger shall be
effective on the date they are filed with the Division of Corporations and
Commercial Code of the State of Utah.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, NIELS FUGAL SONS COMPANY hereby certifies to the
truth of the facts stated herein and executes and delivers these Articles of
Merger this 8th day of March, 2000.
NIELS FUGAL SONS COMPANY
By: /s/ Guy Fugal
--------------------------
Guy Fugal, President
MAILING ADDRESS
If, upon completion of filing of the above Articles of Merger, the
Division elects to send a copy of the Articles of Merger to FUGAL by mail, the
address to which the copy should be mailed is:
NIELS FUGAL SONS COMPANY
P.O. Box 650
Pleasant Grove, Utah 84062
Attention: Guy Fugal, President
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
(Abbreviated)
A. Merger of Acquiror Merger Sub into FUGAL.
1. Agreement and Plan of Merger. Subject to the terms of an
Agreement and Plan of Merger dated as of February 14, 2000, (the "Merger
Agreement"), among Dycom Industries, Inc., a Florida corporation ("Acquiror"),
Dycom Acquisition Corporation IV, a Utah corporation ("Merger Sub"), NIELS FUGAL
SONS COMPANY, a Utah corporation ("FUGAL"), and the shareholders of FUGAL
("Shareholders"), Merger Sub shall be merged with and into FUGAL (the "Merger").
2. Effective Time of the Merger. The Merger shall become
effective on the date that the Articles of Merger are duly filed with the
Division of Corporations and Commercial Code of the State of Utah (the
"Effective Time").
3. Surviving Corporation. At the Effective Time, Merger Sub
shall be merged with and into FUGAL and the separate corporate existence of
Merger Sub shall thereupon cease. FUGAL shall be the surviving corporation (the
"Surviving Corporation") in the Merger and shall continue its existence under
the provisions of the Utah Revised Business Corporation Act (the "Act").
B. Effect of the Merger; Additional Actions.
1. Effects. The Merger shall have the effects set forth in the
Act.
2. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, any such further action is necessary or desirable to
carry out the purposes of the Merger Agreement and to vest FUGAL as the
Surviving Corporation, with full right, title and possession to all assets,
property, rights, privileges and powers of Merger Sub, the officers and
directors of Merger Sub and FUGAL are fully authorized in the name of their
respective corporations or otherwise to take, and will take, all such lawful and
necessary actions.
3. Articles of Incorporation of Surviving Corporation. The
Articles of Incorporation of FUGAL shall be the Articles of Incorporation of the
Surviving Corporation, as amended and restated in Exhibit 1, attached hereto and
made a part hereof.
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4. Bylaws of Surviving Corporation. The Bylaws of Merger Sub
as in effect immediately prior to the Effective Time shall be the Bylaws of the
Surviving Corporation on and after the Effective Time and thereafter may be
amended in accordance with the terms thereof, the Articles of Incorporation of
the surviving corporation, and applicable law.
C. Conversion of Shares. At the Effective Time, all shares of common
stock, no par value, of FUGAL by reason of the Merger provided for hereunder and
without any action on the part of the holder thereof, shall be converted into
the right to receive 2,726,210 shares of common stock, $.33 1/3 par value per
share, of Acquiror (the "Acquiror Stock"). All such shares of FUGAL common stock
by virtue of the Merger and without any action on the part of the holder
thereof, shall no longer be outstanding and shall be canceled and retired and
shall cease to exist, and each shareholder of FUGAL shall thereafter cease to
have any rights with respect to such shares of FUGAL common stock, except the
right to receive the Acquiror Stock.
No fractional shares of Acquiror Stock shall be issued as a result of
the Merger. The number of shares each shareholder is entitled to receive shall
be rounded to the nearest whole number.
As of the Effective Time, each share of common stock of Merger Sub, by
reason of the Merger provided for hereunder, and without any action on the part
of Acquiror, the holder thereof, shall be converted into the right to receive
one share of common stock of Acquiror. All such shares of Merger Sub common
stock, by virtue of the Merger, and without any action on the part of the holder
thereof, shall no longer be outstanding and shall be canceled and retired and
shall cease to exist, and Acquiror shall cease to have any rights with respect
to such shares of Merger Sub common stock.
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EXHIBIT 1
AMENDED AND RESTATED ARTICLES OF INCOPORATION
OF NIELS FUGAL SONS COMPANY
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ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
NIELS FUGAL SONS COMPANY
The undersigned, Guy Fugal, being a duly appointed officer and director
of Niels Fugal Sons Company, a Utah corporation (the "Corporation"), hereby
certifies the following:
1. The Articles of Incorporation of the Corporation have been amended
and restated in their entirety to read as follows:
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
NIELS FUGAL SONS COMPANY
ARTICLE I
Name
The name of the corporation is Niels Fugal Sons Company (the
"Corporation").
ARTICLE II
Registered Office and Registered Agent
The address of the registered office of the Corporation in the
State of Utah is One Utah Center, 201 South Main Street, Salt Lake City, Utah
84111. The name of the registered agent of the Corporation at such address is
Corporation Service Company.
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ARTICLE III
Corporate Purpose
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Utah Revised
Business Corporation Act of the State of Utah (the "URBCA").
ARTICLE IV
Capital Stock
(1) The total number of shares of all classes of stock that
the Corporation shall have authority to issue is 1,000, all of which shall be
shares of Common Stock and of the same class, and without par value.
(2) No holder of any of the shares of any class of the
Corporation shall be entitled as of right to subscribe for, purchase or
otherwise acquire any shares of any class of the Corporation which the
Corporation proposes to issue or any rights or options which the Corporation
proposes to grant for the purchase of shares of any class of the Corporation or
for the purchase of any shares, bonds, securities or obligations of the
Corporation which are convertible into or exchangeable for, or which carry any
rights to subscribe for, purchase or otherwise acquire shares of any class of
the Corporation; and any and all of such shares, bonds, securities or
obligations of the Corporation, whether now or hereafter authorized or created,
may be issued, or may be reissued if the same have been reacquired and if their
reissue is not prohibited, and any and all of such rights and options may be
granted by the Board of Directors to such individuals and entities, and for such
lawful consideration, and on such terms, as the Board of Directors in its
discretion may determine, without first offering the same, or any thereof, to
any said holder.
ARTICLE V
Directors
(1) Elections of directors of the Corporation need not be by
written ballot, except and to the extent provided in the By-laws of the
Corporation.
(2) To the fullest extent permitted by the URBCA as it now
exists and as it may hereafter be amended, no director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
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ARTICLE VI
Indemnification of Directors, Officers and Others
(1) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(2) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(3) To the extent that a present or former director or officer
of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections (1) and (2) of this
Article VI, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
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(4) Any indemnification under Sections (1) and (2) of this
Article VI (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in such Sections (1) and (2). Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (a) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (b) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (c) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (d)
by the stockholders of the Corporation.
(5) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation authorized in this Article VI. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate.
(6) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other sections of this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
(7) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of Section 16-10a-902 of the URBCA.
(8) For purposes of this Article VI, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article VI with
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respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
(9) For purposes of this Article VI, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves service by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VI.
(10) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article VI shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE VII
Duration
The duration of the Corporation shall be perpetual.
ARTICLE VIII
By-Laws
The directors of the Corporation shall have the power to
adopt, amend or repeal by-laws.
ARTICLE IX
Amendment
The Corporation reserves the right to amend, alter, change or
repeal any provision of these Articles of Incorporation, in the manner now or
hereafter prescribed by law, and all rights conferred on stockholders in these
Articles of Incorporation are subject to this reservation.
[End of Amended and Restated Articles]
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2. This Amended and Restated Articles of Incorporation (this
"Amendment") was approved by the Board of Directors of the Corporation by
unanimous written consent dated February 14, 2000 and submitted to the
shareholders of the Corporation for their approval. The Corporation has 25,761
shares of outstanding Common Stock entitled to vote on this Amendment. No
shareholders were entitled to vote separately in voting groups. The total number
of votes cast for the Amendment was 25,761, and no shares were voted against the
Amendment.
IN WITNESS WHEREOF, the undersigned has executed these Amended and
Restated Articles of Incorporation as of the 8th day of March, 2000.
NIELS FUGAL SONS COMPANY
By /s/ Guy Fugal
-------------------------------
Guy Fugal, President
The appointment of the undersigned as registered agent of the
Corporation is hereby accepted:
CORPORATION SERVICE COMPANY
By /s/ Vickie Schreiber
-------------------------------
Vickie Schreiber, Asst. V.P.
Dated March 8, 2000
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