**Exhibit 3.1**

 

**SECOND AMENDED AND RESTATEDCERTIFICATE OF INCORPORATION OFINTERLINE BRANDS, INC.**

 

FIRST.  The name of the corporation is INTERLINE BRANDS,INC. (the “Corporation”).

 

SECOND.  The registered office of the Corporation inthe State of New Jersey is located at 14 Scenic Drive Dayton, NJ 08810, and thename of its registered agent at such address is National Corporate Research,Ltd.  The names and addresses of thecurrent members of the Board of Directors of the Corporation (the “Board”)are set forth on Schedule A attached hereto.

 

THIRD.  The purpose of the Corporation is to engagein any lawful act or activity for which corporations may be organized under theNew Jersey Business Corporation Act.

 

FOURTH.

 

1.                                       Designation.  The total number of shares of all classes ofstock which the Corporation shall have authority to issue is 101; of which 100shares, 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 beof a class designated Senior Preferred Stock (the “Senior Preferred Stock”).

 

Therights, preferences, privileges and restrictions granted to and imposed uponthe Common Stock are set forth below in this ARTICLE FOURTH.  The rights, preferences, privileges andrestrictions granted to and imposed upon the Senior Preferred Stock are setforth in the attached Attachment A.

 

2.                                       Dividends onCommon Stock.  Dividends shall bepaid on the Common Stock when, as and if declared by the Board.

 

3.                                       Voting Power.  Except as otherwise expressly providedherein, or as required by law, each holder of Common Stock shall be entitled tovote on all matters and shall be entitled to one vote for each share of CommonStock standing in his name on the books of the Corporation.

 

4.                                       OtherRights Reserved to Common Stock. Except for and subject to those rights expresslygranted to the holder of the Senior Preferred Stock, or except as may beprovided by the laws of the State of New Jersey, the holders of Common Stockshall have exclusively all other rights of stockholders.

 

FIFTH.

 

1.                                       Election ofDirectors.  Members of the Board maybe elected either by written ballot or by voice vote.

 

A-1

----

 

2.                                       Limitation ofLiability.  No director of the Corporationshall be personally liable to the Corporation or its stockholders for monetarydamages for breach of fiduciary duty as a director, provided that thisprovision shall not eliminate or limit the liability of a director (a) forany breach of the director’s duty of loyalty to the Corporation or itsstockholders, (b) for acts or omissions not in good faith or which involveintentional misconduct or a knowing violation of law or (c) for anytransaction from which the director derived any improper personal benefits.

 

Any repeal ormodification of the foregoing provision shall not adversely affect any right orprotection of a director of the Corporation existing at the time of such repealor modification.

 

3.                                       Indemnification.

 

(a)                                  Tothe extent not prohibited by law, the Corporation shall indemnify any personwho 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, withoutlimitation, an action by or in the right of the Corporation to procure ajudgment in its favor, by reason of the fact that such person, or a person ofwhom such person is the legal representative, is or was a director or officerof the Corporation, or, at the request of the Corporation, is or was serving asa director or officer of any other corporation or in a capacity with comparableauthority 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 andcosts, charges and expenses (including attorneys’ fees, disbursements and othercharges).  Persons who are not directorsor officers of the Corporation (or otherwise entitled to indemnificationpursuant to the preceding sentence) may be similarly indemnified in respect ofservice to the Corporation or to an Other Entity at the request of theCorporation to the extent the Board at any time specifies that such persons areentitled to the benefits of this Section 3 of this ARTICLE FIFTH.

 

(b)                                 TheCorporation shall, from time to time, reimburse or advance to any director orofficer or other person entitled to indemnification hereunder the fundsnecessary for payment of expenses, including attorneys’ fees and disbursements,incurred in connection with any Proceeding, in advance of the final dispositionof such Proceeding; provided, however, that, if required by thelaws of the State of New Jersey, such expenses incurred by or on behalf of anydirector or officer or other person may be paid in advance of the finaldisposition of a Proceeding only upon receipt by the Corporation of anundertaking, by or on behalf of such director or officer (or other person indemnifiedhereunder), to repay any such amount so advanced if it shall ultimately bedetermined by final judicial decision from which there is no further right ofappeal that such director, officer or other person is not entitled to beindemnified for such expenses.

 

(c)                                  Therights to indemnification and reimbursement or advancement of expenses providedby, or granted pursuant to, this Section 3 of this ARTICLE FIFTH shallnot be deemed exclusive of any other rights to which a person seekingindemnification or reimbursement or advancement of expenses may have orhereafter be entitled under any statute, this Certificate of Incorporation, theBy-laws of the Corporation, as amended (the “By-laws”), 

 

A-2

----

 

any agreement, any voteof shareholders or disinterested directors or otherwise, both as to action inhis or her official capacity and as to action in another capacity while holdingsuch office.

 

(d)                                 Therights to indemnification and reimbursement or advancement of expenses providedby, or granted pursuant to, this Section 3 of this ARTICLE FIFTH shallcontinue as to a person who has ceased to be a director or officer (or otherperson indemnified hereunder) and shall inure to the benefit of the executors,administrators, legatees and distributees of such person.

 

(e)                                  TheCorporation shall have power to purchase and maintain insurance on behalf ofany person who is or was a director, officer, employee or agent of theCorporation, or is or was serving at the request of the Corporation as adirector, officer, employee or agent of an Other Entity, against any liabilityasserted 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 Corporationwould have the power to indemnify such person against such liability under theprovisions of this Section 3 of this ARTICLE FIFTH, the By-laws orunder the laws of the State of New Jersey or any other provision of law.

 

(f)                                    Theprovisions of this Section 3 of this ARTICLE FIFTH shall be acontract between the Corporation, on the one hand, and each director andofficer who serves in such capacity at any time while this Section 3 ofthis ARTICLE FIFTH is in effect and any other person entitled to indemnificationhereunder, on the other hand, pursuant to which the Corporation and each suchdirector, officer, or other person intend to be, and shall be, legallybound.  No repeal or modification of thisSection 3 of this ARTICLE FIFTH shall affect any rights orobligations with respect to any state of facts then or theretofore existing orthereafter arising or any proceeding theretofore or thereafter brought orthreatened based in whole or in part upon any such state of facts.

 

(g)                                 Therights to indemnification and reimbursement or advancement of expenses providedby, or granted pursuant to, this Section 3 of this ARTICLE FIFTH shallbe enforceable by any person entitled to such indemnification or reimbursementor advancement of expenses in any court of competent jurisdiction.  The burden of proving that suchindemnification or reimbursement or advancement of expenses is not appropriateshall be on the Corporation.  Neither thefailure of the Corporation (including its Board, its independent legal counseland 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 theCorporation (including its Board, its independent legal counsel and itsstockholders) that such person is not entitled to such indemnification orreimbursement or advancement of expenses shall constitute a defense to theaction or create a presumption that such person is not so entitled.  Such a person shall also be indemnified forany expenses incurred in connection with successfully establishing his or herright to such indemnification or reimbursement or advancement of expenses, inwhole or in part, in any such proceeding.

 

(h)                                 Anydirector or officer of the Corporation serving in any capacity of (i) anothercorporation of which a majority of the shares entitled to vote in the electionof its directors is held, directly or indirectly, by the Corporation or (ii) anyemployee benefit plan of 

 

A-3

----

 

the Corporation or anycorporation referred to in clause (i) shall be deemed to be doing so atthe request of the Corporation.

 

(i)                                     Anyperson entitled to be indemnified or to reimbursement or advancement ofexpenses as a matter of right pursuant to this Section 3 of this ARTICLE FIFTHmay elect to have the right to indemnification or reimbursement or advancementof expenses interpreted on the basis of the applicable law in effect at thetime of the occurrence of the event or events giving rise to the applicableProceeding, to the extent permitted by law, or on the basis of the applicablelaw in effect at the time such indemnification or reimbursement or advancementof expenses is sought.  Such electionshall be made, by a notice in writing to the Corporation, at the timeindemnification or reimbursement or advancement of expenses is sought; provided,however, that if no such notice is given, the right to indemnificationor reimbursement or advancement of expenses shall be determined by the law ineffect at the time indemnification or reimbursement or advancement of expensesis sought.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

A-4

----

 

INWITNESS WHEREOF, the undersigned Corporation has caused this Certificate ofIncorporation to be executed in its name by the undersigned as of this 10th dayof December, 2004.

 

 
|   | INTERLINE  BRANDS, INC.                    |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | By:                                        | /s/ Laurence W.  Howard III |   |
|   |                                       |
|   | Name: Laurence  W. Howard III              |
|   | Title: VP  General Counsel & Secretary |

 

A-5

----

 

SCHEDULE A

 

Board of Directors

 
| **Name:**           | ** ** | **Address:**                                                                     |
|---------------------|------------|----------------------------------------------------------------------------------|
| Michael J. Grebe    |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| Gideon Argov        |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| Christopher Behrens |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| Barry Goldstein     |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| Ernest K. Jacquet   |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| John J. Gavin       |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| Stephen V. McKenna  |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| Charles W. Santoro  |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |
| Drew T. Sawyer      |       | c/o  Interline Brands, Inc.  801 W. Bay Street  Jacksonville, Florida 32204 |

 

A-1

----

 

ATTACHMENT A

 

**INTERLINE BRANDS, INC.**

 

CERTIFICATE OF DESIGNATION OFSENIOR PREFERRED STOCK,SETTING FORTH THE POWERS, PREFERENCES, RIGHTS,QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OFSUCH SERIES OF PREFERRED STOCK

 

 

INTERLINEBRANDS, INC., a New Jersey corporation (the “Corporation”), DOES HEREBYCERTIFY:

 

Thatpursuant to authority conferred upon the Board of Directors of the Corporation(the “Board of Directors”) by the Second Amended and RestatedCertificate of Incorporation of the Corporation (the “Certificate ofIncorporation”), and pursuant to the provisions of Chapter 7 of the NewJersey Business Corporation Act, the Board of Directors, by unanimous writtenconsent in lieu of meeting, adopted the following resolution creating oneseries of preferred stock, which resolution is as follows:

 

WHEREAS,the Board of Directors is authorized, within the limitations and restrictionsstated in the Certificate of Incorporation, to provide by resolution orresolutions for the issuance of one share of preferred 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 resolutionor resolutions providing for the issuance thereof adopted by the Board ofDirectors, and as are stated and expressed in the Certificate of Incorporation,or any amendment thereto, including (but without limiting the generality of theforegoing) such provisions as may be desired concerning voting, redemption,dividends, dissolution or the distribution of assets and such 

 

A-1

----

 

other subjects or matters as may be fixed byresolution or resolutions of the Board of Directors under the New JerseyBusiness Corporation Act; and

 

WHEREAS,it is the desire of the Board of Directors, pursuant to its authority asaforesaid, to authorize and fix the terms of one series of Preferred Stock andthe number of shares constituting such series.

 

NOW,THEREFORE, BE IT RESOLVED:

 

ARTICLE I.

 

Senior Preferred Stock

 

1.                                       Designation andNumber of Shares.

 

(a)                                  There shall be herebyestablished a series of Preferred Stock designated as “Senior Preferred Stock”(the “Senior Preferred”), to consist of one share, par value $0.01 pershare.

 

(b)                                 Capitalized terms usedherein and not otherwise defined shall have the meanings set forth in Article IIbelow.

 

2.                                       Rank.  The Senior Preferred shall, with respect todividend distributions, redemptions and distributions of assets and rights uponthe liquidation, winding up and dissolution of the Corporation, whethervoluntary or involuntary, rank senior to (a) all classes of common stockof the Corporation (including, without limitation, the common stock, no parvalue per share, of the Corporation (the “Common Stock”)), and (b) eachother class or series of Capital Stock of the Corporation hereafter created,each of which shall expressly provide that it ranks junior to the SeniorPreferred with respect to dividend distributions and distributions of assetsand rights upon the liquidation, winding up and dissolution of the Corporation(such Capital Stock, together with the Common Stock, the “Junior Stock”).

 

A-2

----

 

3.                                       Dividends.

 

(a)                                  Beginning on the dateof issuance of the Senior Preferred, the holder of the outstanding share ofSenior Preferred shall be entitled to receive dividends payable in cash on suchshare of Senior Preferred (subject to equitable adjustment whenever there shalloccur a stock split, combination, reclassification or similar event involvingthe Senior Preferred) at an annual rate equal to 14%.  All dividends with respect to such share ofSenior Preferred shall (i) begin to accrue on a daily basis, (ii) becumulative, whether or not earned or declared, (iii) be compoundedquarterly from the date of issuance of such share and (iv) shall bepayable when declared by the Board of Directors.

 

(b)                                 All dividends accruedwith respect to the share of Senior Preferred pursuant to Section 3(a) shallbe payable prior to the payment of any dividend on shares of any JuniorStock.  No dividend may be paid on anysecurities of the Corporation ranking *pari passu* withthe Senior Preferred unless such dividend is paid to the holder of the SeniorPreferred also.

 

(c)                                  Dividends accrued onthe Senior Preferred for any period less than a year shall be computed on thebasis of a 365 or 366-day year and the actual number of days elapsed in theperiod for which accruable.

 

4.                                       Liquidation.

 

(a)                                  In the event of anyvoluntary or involuntary liquidation, winding up or dissolution of theCorporation, the holder of the share of Senior Preferred then outstanding shallbe entitled to be paid for such share held, out of the assets of theCorporation legally available for distribution to its stockholders, an amountin cash equal to the sum of the Liquidation Value plus an amount in cash equalto all accumulated and unpaid dividends thereon to the date of suchliquidation, winding up or dissolution, whether or not declared, 

 

A-3

----

 

before any payment shallbe made or any assets distributed to the holders of any shares of JuniorStock.  Except as provided in thepreceding sentence, the holder of the Senior Preferred shall not be entitled toany distribution in the event of any liquidation, winding up or dissolution ofthe Corporation.

 

(b)                                 Not less than thirty(30) days prior to the payment date stated therein, the Corporation shall mailwritten notice of any such liquidation, winding up or dissolution to the recordholder of the Senior Preferred, setting forth in reasonable detail, to theextent known, the amount of proceeds to be paid with respect to such share ofSenior 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 isin connection with, (i) any Person or “group” (within the meaning of Section 13(d)(3) ofthe Exchange Act) acquiring “beneficial ownership” (as defined in Rule 13d-3under the Exchange Act), directly or indirectly, of 51% or more of the thenissued and outstanding shares of Common Stock, without giving effect to theissuance of shares under any security convertible into, exchangeable for orevidencing the right to purchase or otherwise receive any shares of CommonStock or (ii) the sale, lease, exchange, conveyance, transfer or otherdisposition (for cash, shares of stock, securities or other consideration) ofall or substantially all of the property or assets of the Corporation to anyPerson or “group” (within the meaning of Section 13(d)(3) of the ExchangeAct), shall be deemed to be a liquidation of the Corporation under Section 4(a) (whichtransaction or series of transactions shall be referred to herein as a “LiquidationEvent”). Notwithstanding the foregoing, for so long as any of theCorporation’s 11 1⁄2 % senior subordinated notes (the “Senior SubordinatedNotes”) issued under an Indenture entered into by 

 

A-4

----

 

the Corporation, WilmarHoldings, Inc., Wilmar Financial, Inc., Glenwood Acquisition LLC andthe Bank of New York, as trustee (as supplemented or amended the “Indenture”),remain outstanding until the first anniversary of the Stated Maturity (asdefined in the Indenture) of the Senior Subordinated Notes (the “SeniorSubordinated Notes Period”), no event described in Section 4(a), 4(c)(i) or4(c)(ii) above shall be deemed to be a voluntary or involuntaryliquidation, winding up, a dissolution or other Liquidation Event entitlingholders of the Senior Preferred to any amounts under Section 4(a) above,unless such event shall also constitute a “Change in Control” as defined in theIndenture. Furthermore, during the Senior Subordinated Notes Period, holders ofthe Senior Preferred shall not be entitled to any amounts under Section 4(a) aboveon account of an event described in Section 4(a), 4(c)(i) or 4(c)(ii) aboveoccurring and such Sections shall not be operative, unless and until allcovenants and other terms of the Senior Subordinated Notes and the Indenturehave first been fully complied with, including without limitation, the makingof a “Change of Control Offer” as defined in the Indenture and the purchase ofany Senior Subordinated Notes tendered pursuant to such offer.

 

5.                                       OptionalRedemption.  The Corporation mayredeem the share of Senior Preferred outstanding at any time, upon a vote ofthe majority of the Board of Directors.  Except as otherwise provided herein, theCorporation shall mail written notice of the redemption of the Senior Preferredto the 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.  The Corporation shall redeem the share ofSenior Preferred in cash at a price per share equal to the sum of theLiquidation Value plus all accumulated and unpaid dividends thereon to the dateof mailing of the redemption notice, whether or not declared.

 

A-5

----

 

6.                                       Voting Rights.  The holder of the share of Senior Preferredshall not be entitled or permitted to vote on any matter required or permittedto be voted upon by the stockholders of the Corporation, except as otherwiserequired under New Jersey law and as follows: (i) in connection with any proposal that the Corporation shallauthorize or issue additional shares of Senior Preferred or additional classesor series of preferred stock; (ii) any changes to the rights of the SeniorPreferred relating to voting, redemption, dividends, dissolution or thedistribution of Corporation assets and any amendment to this Certificate ofDesignation; and (iii) in connection with such other subjects or matters thatadversely affect the holder of Senior Preferred.

 

7.                                       No Reissuanceof Senior Preferred.  Any share ofSenior Preferred that has been redeemed or otherwise acquired by theCorporation shall be retired and canceled, shall resume the status ofauthorized and unissued shares of Preferred Stock and shall not be reissued,sold or transferred.

 

8.                                       Business Day.  If any payment or redemption shall berequired by the terms hereof to be made on a day that is not a Business Day,such payment or redemption shall be made on the immediately succeeding BusinessDay.

 

ARTICLE II.

 

Definitions

 

Asused in this Certificate of Designation, the following terms shall have thefollowing meanings (with terms defined in the singular having comparablemeanings when used in the plural and viceversa), unless thecontext otherwise requires:

 

“Affiliate” means,with respect to any specified Person, any other Person who or which, directlyor indirectly, controls, is controlled by, or is under common control with,such specified Person.  For the purposesof this definition, “control,” when used with respect to any specified Person,means the power to direct or cause the direction of the management and 

 

A-6

----

 

policies of such Person,whether through the ownership of voting securities, by contract or otherwise;and the terms “controlling” and “controlled” have meanings correlative of theforegoing.

 

“Business Day”means any day except a Saturday, a Sunday, or any day on which bankinginstitutions in New York, New York are required or authorized by law or othergovernmental 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 whethervoting 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 (butexcluding any debt security that is exchangeable for or convertible into suchcapital stock).

 

“Exchange Act”means the Securities Exchange Act of 1934, as amended.

 

“Liquidation Value”means, with respect to the share of Senior Preferred,

 

“Person” means anyindividual, corporation, limited liability company, partnership, firm, jointventure, association, joint-stock company, trust, estate, unincorporatedorganization, governmental or regulatory body or other entity.

 

“Voting Stock” ofany Person means shares of Capital Stock entitled (without regard to theoccurrence of any contingency) to vote for the election of members of the boardof directors or similar management body of such Person.

 

IN WITNESS WHEREOF, theundersigned has caused this Certificate to be duly executed by its dulyauthorized officer this 10th day of December, 2004.

 

 
|   | INTERLINE  BRANDS, INC.                      |
|--------|----------------------------------------------|
|   |                                         |
|   |                                         |
|   | By:                                          | /s/ Laurence W.  Howard III |   |
|   | Name: Laurence  W. Howard III                |
|   | Title: VP - General  Counsel & Secretary |
|        |                                              |  |  |  |

 

A-7

----