State of Missouri
Rebecca McDowell Cook, Secretary of State
P.O. Box 778, Jefferson City, Mo. 65102
Corporation Division
Articles of Merger
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law
of Missouri, the undersigned corporations certify the following:
(1) That INSTALLATION TECHNICIANS, INC. of the State of Missouri and
(2) That DYCOM ACQUISITION CORPORATION I of the State of Missouri are hereby
merged and that the above named INSTALLATION TECHNICIANS, INC. is the
surviving corporation.
(3) That the Board of Directors of INSTALLATION TECHNICIANS, INC., by
resolution adopted by unanimous written consent of the members of such
board dated February 23, 1998, approved the Plan of Merger set forth in
these articles.
(4) That the Board of Directors of DYCOM ACQUISITION CORPORATION I, by
resolution adopted by unanimous written consent of the members of such
board dated February 23, 1998, approved the Plan of Merger set forth in
these articles.
(5) The Plan of Merger was approved by a unanimous written consent of the
shareholders of INSTALLATION TECHNICIANS, INC. dated February 23, 1998 with
3,000 shares entitled to vote, 3,000 voted in favor and 0 voted against
such plan.
(6) The Plan of Merger was approved by a unanimous written consent of the sole
shareholder of DYCOM ACQUISITION CORPORATION I dated February 23, 1998 with
100 shares entitled to vote, 100 voted in favor and 0 voted against such
plan.
(7) PLAN OF MERGER
1. INSTALLATION TECHNICIANS, INC. of the State of Missouri is the survivor.
2. All of the property, rights, privileges, leases and patents of DYCOM
ACQUISITION CORPORATION I are to be transferred to and become the
property of INSTALLATION TECHNICIANS, INC., the survivor. The officers
and board of directors of the above named corporations are authorized
to execute all deeds,
assignments, and documents of every nature which may be needed to
effectuate a full and complete transfer of ownership.
3. The officers of INSTALLATION TECHNICIANS, INC. and board of directors
of DYCOM ACQUISITION CORPORATION I shall continue in office until
their successors are duly elected and qualified under the provisions
of the by-laws of the surviving corporation. Attached hereto as
Exhibit A is a list of the officers and directors of the surviving
corporation.
4. The outstanding shares of INSTALLATION TECHNICIANS, INC., of which
there are 30,000 (of which 3,000 are voting common stock and 27,000
are nonvoting common stock), shall be converted on the following
basis: each outstanding share of INSTALLATION TECHNICIANS, INC. shall
be converted into 20 shares of common stock of DYCOM INDUSTRIES INC.,
a Florida corporation and the sole shareholder of DYCOM ACQUISITION
CORPORATION I.
5. The outstanding shares of DYCOM ACQUISITION CORPORATION I, of which
there are 100, shall be converted on the following basis: each
outstanding share of DYCOM ACQUISITION CORPORATION I shall be
converted into 300 shares of common stock (of which, upon conversion
of all such stock, 3,000 shall be voting common stock and 27,000 shall
be nonvoting common stock) of INSTALLATION TECHNICIANS, INC.
6. The articles of incorporation of the surviving corporation are amended
as set forth on Exhibit B attached hereto and by this reference
incorporated herein and made a part hereof.
IN WITNESS WHEREOF, these Articles of Merger have been executed in duplicate by
the aforementioned corporations as of the day and year hereafter acknowledged.
CORPORATE SEAL INSTALLATION TECHNICIANS, INC.
By /s/ Gerald W. Hartman
----------------------------------
Name: Gerald W. Hartman
Title: President
(President or Vice President)
ATTEST:
By /s/ Linda S. Noell
---------------------
Name: Linda S. Noell
Title: Secretary
(The Secretary of Assistant Secretary)
State of Missouri )
ss.
County of Stone )
I, Linda Noell , a Notary Public, do hereby certify that on
the 1st day of April, 1998, personally appeared before me Gerald W. Hartman who
being by me first duly sworn, declared that he is the President of INSTALLATION
TECHNICIANS, INC. that he signed the foregoing documents as President, of the
corporation, and that the statements therein contained are true.
(Notarial Seal) /s/ Linda Noell
----------------------------------------
Notary Public
My commission expires November 3, 1999
CORPORATE SEAL DYCOM ACQUISITION CORPORATION I
By /s/ Steven E. Nielsen
-------------------------------------
Name: Steven E. Nielsen
Title: President
(The President or Vice President)
ATTEST:
By /s/ Patricia B. Frazier
---------------------------
Name: Patricia B. Frazier
Title: Secretary
(The Secretary of Assistant Secretary)
State of Florida )
ss.
County of Palm Beach )
I, Joan C. McLinton , a Notary Public, do hereby certify that
on the 1st day of April, 1998, personally appeared before me Steven E. Nielsen
and Patricia B. Frazier who being by me first duly sworn, declared that he is
the President and Secretary respectively of DYCOM ACQUISITION CORPORATION I that
he signed the foregoing documents as President & Secretary respectively of the
corporation, and that the statements therein contained are true.
(Notarial Seal) /s/ Joan C. McLinton
-----------------------------------------
Notary Public
My commission expires August 13, 2000
Exhibit A
---------
Officers
--------
Gerald W. Hartman President
David Smith Vice President and Treasurer
Linda Noell Secretary
Directors
---------
Gerald W. Hartman
John J. Ekstrom
Thomas R. Pledger
Steven E. Nielsen
Exhibit B
---------
Amendments to the Articles of Incorporation
of Installation Technicians, Inc.
---------------------------------
1. Article IV is hereby deleted.
2. Article V is hereby renumbered Article IV.
3. Article VI is hereby deleted and the following shall be inserted in lieu
thereof:
"Article V
----------
(1) The number of directors to constitute the first board of
directors is four. Thereafter, the number of directors shall be fixed
by, or in the manner provided by the By-Laws of the Corporation. Any
changes in the number will be reported to the Secretary of State within
thirty calendar days of such change.
(2) To the fullest extent permitted by the General and Business
Corporation Law of Missouri 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."
4. Article VII is hereby renumbered Article VI.
5. Article VIII is hereby deleted and the following shall be inserted in lieu
thereof:
"Article VII
------------
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General and
Business Corporation Law of Missouri."
6. Article IX is hereby renumbered Article VIII.
7. Article X is hereby deleted and the following shall be inserted in lieu
thereof:
"Article IX
-----------
(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 he 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,
judgements, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. The
termination of any action, suit, or proceeding by judgement, 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 he 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 his conduct was unlawful.
(2) The Corporation shall indemnify any person who was 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
judgement in its favor by reason of the fact that he 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 attorney's fees,
and amounts paid in settlement actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; except that no
such indemnification shall be made by the Corporation in respect of any
claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his
duty to the Corporation unless and only to the extent that the court in
which such action or suit was brought determines upon application that,
despite the adjudication of liability and in view of all the
circumstances of the case, the person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
(3) To the extent that a director, officer, employee or agent 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 IX, or in defense of
any claim, issue or matter therein, he shall be indemnified against
expenses, including attorneys' fees, actually and reasonably incurred
by him in connection with the action, suit or proceeding.
(4) Any indemnification under Sections (1) and (2) of this Article
IX, 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 director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in this Article IX. The determination shall be made
by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding, or if
such a quorum is not obtainable, or even if obtainable, as a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or by the shareholders.
(5) Expenses incurred in defending a civil or criminal action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of the action, suit, or proceeding provided such payment is
authorized by the board of directors in the specific case upon receipt
of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation as authorized
in this Article IX.
(6) The indemnification provided by this Article IX shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under these Articles of Incorporation
or By-Laws or any agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall
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.
(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 351.355 of the General and
Business Corporation Law of Missouri.
(8) For the purpose of this Article IX, references to "the
Corporation" shall include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a director, officer,
employee or agent of such a 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 IX with respect to the resulting or surviving
corporation as he would if he had served the resulting or surviving
corporation in the same capacity.
(9) For purposes of this Article IX, 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 any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
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 IX."