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                             AMENDED AND RESTATED

 

                         CERTIFICATE OF INCORPORATION

 

                                      OF

 

                          UNITED NATURAL FOODS, INC.

 

     United Natural Foods, Inc., a corporation organized and existing under and

by virtue of the General Corporation Law of the State of Delaware (the

"Corporation"), does hereby certify as follows:

 

     1.   The Corporation filed its original Certificate of Incorporation under

the name "Cornucopia Natural Foods, Inc." with the Secretary of State of

Delaware on February 11, 1994, which Certificate of Incorporation was amended by

a Certificate of Merger filed on November 1, 1994, a Certificate of Amendment of

Certificate of Incorporation filed on February 20, 1996, and a Second

Certificate of Amendment of Certificate of Incorporation filed on September 3,

1996.

 

     2.   The Board of Directors of the Corporation, at a meeting of the Board

of Directors held on October __, 1996, duly adopted resolutions, pursuant to

Sections 242 and 245 of the General Corporation Law of the State of Delaware,

setting forth an Amended and Restated Certificate of Incorporation of the

Corporation and declaring said Amended and Restated Certificate of Incorporation

advisable. The stockholders of the Corporation duly approved said proposed

Amended and Restated Certificate of Incorporation by written consent in

accordance with Sections 228, 242 and 245 of the General Corporation Law of the

State of Delaware, and written notice of such consent has been given to all

stockholders who have not consented in writing

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of such consent has been given to all stockholders who have not consented in

writing to said amendment and restatement. The resolution setting forth the

Amended and Restated Certificate of Incorporation is as follows:

 

RESOLVED:   That the Certificate of Incorporation of the Corporation, as

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amended, be and hereby is amended and restated in its entirety so that the same

shall read as follows:

 

     FIRST.    The name of the Corporation is:

 

                  United Natural Foods, Inc.

 

     SECOND.   The address of its registered office in the State of Delaware is

Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County

of New Castle. The name of its registered agent at such address is The

Corporation Trust Company.

 

     THIRD.    The nature of the business or purposes to be conducted or

promoted by the Corporation is as follows:

 

          To engage in any lawful act or activity for which corporations may be

     organized under the General Corporation Law of Delaware.

 

     FOURTH.   The total number of shares of all classes of stock which the

Corporation shall have authority to issue is (i) Twenty-Five Million

(25,000,000) shares of Common Stock, $.01 par value per share ("Common Stock"),

and (ii) Five Million (5,000,000) shares of Preferred Stock, $.01 par value per

share ("Preferred Stock"), which may be issued from time to time in one or more

series as set forth in Part B of this Article FOURTH.

 

     The following is a statement of the designations and the powers, privileges

and rights, and the qualifications, limitations or restrictions thereof in

respect of each class of capital stock of the Corporation.

 

A.   COMMON STOCK.

     ------------

 

     1.   General.  The voting, dividend and liquidation rights of the holders

          -------                                                             

of the Common Stock are subject to and qualified by the rights of the holders of

the Preferred Stock of any series as may be designated by the Board of Directors

upon any issuance of the Preferred Stock of any series.

 

     2.   Voting.  The holders of the Common Stock are entitled to one vote for

          ------                                                              

each share held at all meetings of stockholders.  There shall be no cumulative

voting.

 

                                      -2-

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     The number of authorized shares of Common Stock may be increased or

decreased (but not below the number of shares thereof then 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(b)(2) of the

General Corporation Law of Delaware.

 

     3.   Dividends.  Dividends may be declared and paid on the Common Stock

          ---------                                                         

from funds lawfully available therefor as and when determined by the Board of

Directors and subject to any preferential dividend rights of any then

outstanding Preferred Stock.

 

     4.   Liquidation.  Upon the dissolution or liquidation of the Corporation,

          -----------                                                         

whether voluntary or involuntary, holders of Common Stock will be entitled to

receive all assets of the Corporation available for distribution to its

stockholders, subject to any preferential rights of any then outstanding

Preferred Stock.

 

B.   PREFERRED STOCK.

     ---------------

 

     Preferred Stock may be issued from time to time in one or more series, each

of such series to have such terms as stated or expressed herein and in the

resolution or resolutions providing for the issue of such series adopted by the

Board of Directors of the Corporation as hereinafter provided.  Any shares of

Preferred Stock which may be redeemed, purchased or acquired by the Corporation

may be reissued except as otherwise provided by law.  Different series of

Preferred Stock shall not be construed to constitute different classes of shares

for the purposes of voting by classes unless expressly provided.

 

     Authority is hereby expressly granted to the Board of Directors from time

to time to issue the Preferred Stock in one or more series, and in connection

with the creation of any such series, by resolution or resolutions providing for

the issue of the shares thereof, to determine and fix such voting powers, full

or limited, or no voting powers, and such designations, preferences and relative

participating, optional or other special rights, and qualifications, limitations

or restrictions thereof, including without limitation thereof, dividend rights,

conversion rights, redemption privileges and liquidation preferences, as shall

be stated and expressed in such resolutions, all to the full extent now or

hereafter permitted by the General Corporation Law of Delaware. Without limiting

the generality of the foregoing, the resolutions providing for issuance of any

series of Preferred Stock may provide that such series shall be superior or rank

equally or be junior to the Preferred Stock of any other series to the extent

permitted by law. Except as otherwise specifically provided in this Certificate

of Incorporation, no vote of the holders of the Preferred Stock or Common Stock

shall be a prerequisite to the issuance of any shares of any series of the

Preferred Stock authorized by and complying with the conditions of the

Certificate of Incorporation, the right to have such vote being expressly waived

by all present and future holders

 

                                      -3-

<PAGE>

 

of the capital stock of the Corporation.

 

     FIFTH.    The Corporation shall have a perpetual existence.

 

     SIXTH.    In furtherance of and not in limitation of powers conferred by

statute, it is further provided that the Board of Directors is expressly

authorized to adopt, amend or repeal the By-Laws of the Corporation.

 

     SEVENTH.  Whenever a compromise or arrangement is proposed between this

corporation and its creditors or any class of them and/or between this

corporation and its stockholders or any class of them, any court of equitable

jurisdiction within the State of Delaware may, on the application in a summary

way of this corporation or of any creditor or stockholder thereof, or on the

application of any receiver or receivers appointed for this corporation under

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 this 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 this corporation, as the case may

be, to be summoned in such manner as the said court directs. If a majority in

number representing three-fourths in value of the creditors or class of

creditors, and/or of the stockholders or class of stockholders of this

corporation, as the case may be, agree to any compromise or arrangement and to

any promise or arrangement, the said compromise or arrangement and the said

reorganization shall, if sanctioned by the court to which the said application

has been made, be binding on all the creditors or class of creditors, and/or on

all the stockholders or class of stockholders, of this corporation, as the case

may be, and also on this corporation.

 

     EIGHTH.   Except to the extent that the General Corporation Law of the

State of Delaware prohibits the elimination or limitation of liability of

directors for breaches of fiduciary duty, no director of the Corporation shall

be personally liable to the Corporation or its stockholders for monetary damages

for any breach of fiduciary duty as a director, notwithstanding any provision of

law imposing such liability.  No amendment to or repeal of this provision shall

apply to or have any effect on the liability or alleged liability of any

director of the Corporation for or with respect to any acts or omissions of such

director occurring prior to such amendment.

 

     NINTH.  1.     Action, Suits and Proceedings Other than by or in the Right

                    -----------------------------------------------------------

of the Corporation.  The Corporation shall indemnify each person who was or is a

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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, or has agreed to become, a director or

officer of the Corporation, or is or was serving, or has agreed to serve, at the

request of the Corporation, as a director, officer or trustee of, or in a

similar capacity with, another corporation, partnership, joint

 

                                      -4-

<PAGE>

 

venture, trust or other enterprise (including any employee benefit plan) (all

such persons being referred to hereafter as an "Indemnitee"), or by reason of

any action alleged to have been taken or omitted in such capacity, against all

expenses (including attorneys' fees) judgment, fines and amounts paid in

settlement actually and reasonably incurred by him or on his behalf in

connection with such action, suit or proceeding and any appeal therefrom, 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 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 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. Notwithstanding anything to the contrary in this Article, except

as set forth in Section 7 below, the Corporation shall not indemnify an

Indemnitee seeking indemnification in connection with a proceeding (or part

thereof) initiated by the Indemnitee unless the initiation thereof was approved

by the Board of Directors of the Corporation.  Notwithstanding anything to the

contrary in this Article, the Corporation shall not indemnify an Indemnitee to

the extent such Indemnitee is reimbursed from the proceeds of insurance, and in

the event the Corporation makes any indemnification payments to an Indemnitee

and such Indemnitee is subsequently reimbursed from the proceeds of insurance,

such Indemnitee shall promptly refund such indemnification payments to the

Corporation to the extent of such insurance reimbursement.

 

     2.   Actions or Suits by or in the Right of the Corporation.  The

          ------------------------------------------------------     

Corporation shall indemnify any Indemnitee 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 he is or was, or has agreed to become, a director or

officer of the Corporation, or is or was serving, or has agreed to serve, at the

request of the Corporation, as a director, officer or trustee of, or in a

similar capacity with, another corporation, partnership, joint venture, trust or

other enterprise (including any employee benefit plan), or by reason of any

action alleged to have been taken or omitted in such capacity, against all

expenses (including attorneys' fees) and amounts paid in settlement actually and

reasonably incurred by him or on his behalf in connection with such action, suit

or proceeding and any appeal therefrom, 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 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 of

Chancery of Delaware shall determine upon application that, despite the

adjudication of such liability but in view of all the circumstances of the case,

such person is fairly and reasonably entitled to indemnity for such expenses

(including attorneys' fees) which the Court of Chancery of

 

                                      -5-

<PAGE>

 

Delaware shall deem proper.

 

     3.   Indemnification for Expenses of Successful Party.  Notwithstanding the

          ------------------------------------------------                     

other provisions of this Article, to the extent that an Indemnitee 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, or in defense of any

claim, issue or matter therein, or on appeal from any such action, suit or

proceeding, he shall be indemnified against all expenses (including attorneys'

fees) actually and reasonably incurred by him or on his behalf in connection

therewith.  Without limiting the foregoing, if any action, suit or proceeding is

disposed of, on the merits or otherwise (including a disposition without

prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an

adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of

guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the

          ---------------                                                

Indemnitee did not act in good faith and in a manner he reasonably believed to

be in or not opposed to the best interests of the Corporation, and (v) with

respect to any criminal proceeding, an adjudication that the Indemnitee had

reasonable cause to believe his conduct was unlawful, the Indemnitee shall be

considered for the purposes hereof to have been wholly successful with respect

thereto.

 

     4.   Notification and Defense of Claim.  As a condition precedent to his

          ---------------------------------                                 

right to be indemnified, the Indemnitee must notify the Corporation in writing

as soon as practicable of any action, suit, proceeding or investigation

involving him for which indemnity will or could be sought.  With respect to any

action, suit, proceeding or investigation of which the Corporation is so

notified, the Corporation will be entitled to participate therein at its own

expense and/or to assume the defense thereof at its own expense, with legal

counsel reasonably acceptable to the Indemnitee.  After notice from the

Corporation to the Indemnitee of its election so to assume such defense, the

Corporation shall not be liable to the Indemnitee for any legal or other

expenses subsequently incurred by the Indemnitee in connection with such claim,

other than as provided below in this Section 4.  The Indemnitee shall have the

right to employ his own counsel in connection with such claim, but the fees and

expenses of such counsel incurred after notice from the Corporation of its

assumption of the defense thereof shall be at the expense of the Indemnitee

unless (i) the employment of counsel by the Indemnitee has been authorized by

the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded

that there may be a conflict of interest or position on any significant issue

between the Corporation and the Indemnitee in the conduct of the defense of such

action or (iii) the Corporation shall not in fact have employed counsel to

assume the defense of such action, in each of which cases the fees and expenses

of counsel for the Indemnitee shall be at the expense of the Corporation, except

as otherwise expressly provided by this Article. The Corporation shall not be

entitled, without the consent of the Indemnitee, to assume the defense of any

claim brought by or in the right of the Corporation or as to which counsel for

the Indemnitee shall have reasonably made the conclusion provided for in clause

(ii) above.

 

                                      -6-

<PAGE>

 

     5.   Advance of Expenses.  Subject to the provisions of Section 6 below, in

          -------------------                                                  

the event that the Corporation does not assume the defense pursuant to Section 4

of this Article of any action, suit, proceeding or investigation of which the

Corporation receives notice under this Article, any reasonable expenses

(including reasonable attorneys' fees) incurred by an Indemnitee in defending a

civil or criminal action, suit, proceeding or investigation or any appeal

therefrom shall be paid by the Corporation in advance of the final disposition

of such matter; provided, however, that the payment of such expense incurred by

                --------  -------                                             

an Indemnitee in advance of the final disposition of such matter shall be made

only upon receipt of an undertaking by or on behalf of the Indemnitee to repay

all amounts so advanced in the event that it shall ultimately be determined that

the Indemnitee is not entitled to be indemnified by the Corporation as

authorized in this Article.  Such undertaking shall be accepted without

reference to the financial ability of the Indemnitee to make such repayment.

 

     6.   Procedure for Indemnification.  In order to obtain indemnification or

          -----------------------------                                       

advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the

Indemnitee shall submit to the Corporation a written request, including in such

request such documentation and information as is reasonably available to the

Indemnitee and is reasonably necessary to determine whether and to what extent

the Indemnitee is entitled to indemnification or advancement of expenses.  Any

such indemnification or advancement of expenses shall be made promptly, and in

any event within 60 days after receipt by the Corporation of the written request

of the Indemnitee, unless with respect to requests under Section 1, 2 or 5 the

Corporation determines within such 60-day period that the Indemnitee did not

meet the applicable standard of conduct set forth in Section 1 or 2, as the case

may be.  Such determination shall be made in each instance by (a) a majority

vote of the directors of the Corporation consisting of persons who are not at

that time parties to the action, suit or proceeding in question ("disinterested

directors"), even though less than a quorum, (b) a majority vote of a quorum of

the outstanding shares of stock of all classes entitled to vote for directors,

voting as a single class, which quorum shall consist of stockholders who are not

at that time parties to the action, suit or proceeding in question, (c)

independent legal counsel (who may be regular legal counsel to the Corporation),

or (d) a court of competent jurisdiction.

 

     7.   Remedies.  The right to indemnification or advances as granted by this

          --------                                                             

Article shall be enforceable by the Indemnitee in any court of competent

jurisdiction if the Corporation denies such request, in whole or in part, or if

no disposition thereof is made within the 60-day period referred to above in

Section 6.  Unless otherwise provided by law, the burden of proving that the

Indemnitee is not entitled to indemnification or advancement of expenses under

this Article shall be on the Corporation.  Neither the failure of the

Corporation to have made a determination prior to the commencement of such

action that indemnification is proper in the circumstances because the

Indemnitee has met the applicable standard of conduct, nor an actual

determination by the Corporation pursuant to Section 6 that the Indemnitee has

not met such applicable standard of conduct, shall be a defense to the

 

                                      -7-

<PAGE>

 

action or create a presumption that the Indemnitee has not met the applicable

standard of conduct.  The Indemnitee's reasonable expenses (including reasonable

attorneys' fees) incurred in connection with successfully establishing his right

to indemnification, in whole or in part, in any such proceeding shall also be

indemnified by the Corporation.

 

     8.   Subsequent Amendment.  No amendment, termination or repeal of this

          --------------------                                             

Article or of the relevant provisions of the General Corporation Law of Delaware

or any other applicable laws shall affect or diminish in any way the rights of

any Indemnitee to indemnification under the provisions hereof with respect to

any action, suit, proceeding or investigation arising out of or relating to any

actions, transactions or facts occurring prior to the final adoption of such

amendment, termination or repeal.

 

     9.   Other Rights.  The indemnification and advancement of expenses

          ------------                                                 

provided by this Article shall not be deemed exclusive of any other rights to

which an Indemnitee seeking indemnification or advancement of expenses may be

entitled under any law (common or statutory), agreement or vote of stockholders

or disinterested directors or otherwise, both as to action in his official

capacity and as to action in any other capacity while holding office for the

Corporation, and shall continue as to an Indemnitee who has ceased to be a

director or officer, and shall inure to the benefit of the estate, heirs,

executors and administrators of the Indemnitee.  Nothing contained in this

Article shall be deemed to prohibit, and the Corporation is specifically

authorized to enter into, agreements with officers and directors providing

indemnification rights and procedures different from those set forth in this

Article.  In addition, the Corporation may, to the extent authorized from time

to time by its Board of Directors, grant indemnification rights to other

employees or agents of the Corporation or other persons serving the Corporation

and such rights may be equivalent to, or greater or less than, those set forth

in this Article.

 

     10.  Partial Indemnification.  If an Indemnitee is entitled under any

          -----------------------                                        

provision of this Article to indemnification by the Corporation for some or a

portion of the expenses (including attorneys' fees), judgments, fines or amounts

paid in settlement actually and reasonably incurred by him or on his behalf in

connection with any action, suit, proceeding or investigation and any appeal,

therefrom but not, however, for the total amount thereof, the Corporation shall

nevertheless indemnify the Indemnitee for the portion of such expenses

(including attorneys' fees), judgments, fines or amounts paid in settlement to

which the Indemnitee is entitled.

 

     11.  Insurance.  The Corporation may purchase and maintain insurance, at

          ---------                                                         

its expense, to protect itself and any director, officer, employee or agent of

the Corporation or another corporation, partnership, joint venture, trust or

other enterprise (including any employee benefit plan) against any expense,

liability or loss incurred by him in any such capacity, or arising out of his

status as such, whether or

 

                                      -8-

<PAGE>

 

not the Corporation would have the power to indemnify such person against such

expense, liability or loss under the General Corporation law of Delaware.

 

     12.  Merger or Consolidation.  If the Corporation is merged into or

          -----------------------                                      

consolidated with another corporation and the Corporation is not the surviving

corporation, the surviving corporation shall assume the obligations of the

Corporation under this Article with respect to any action, suit, proceeding or

investigation arising out of or relating to any actions, transactions or facts

occurring prior to the date of such merger or consolidation.

 

     13.  Savings Clause.  If this Article or any portion hereof shall be

          --------------                                                

invalidated on any ground by any court of competent jurisdiction, then the

Corporation shall nevertheless indemnify each Indemnitee as to any expenses

(including attorneys' fees) judgments, fines and amounts paid in settlement in

connection with any action, suit, proceeding or investigation, whether civil,

criminal or administrative, including an action by or in the right of the

Corporation, to the fullest extent permitted by any applicable portion of this

Article that shall not have been invalidated and to the fullest extent permitted

by applicable law.

 

     14.  Definitions.  Terms used herein and defined in Section 145(h) and

          -----------                                                     

Section 145(i) of the General Corporation Law of Delaware shall have the

respective meanings assigned to such terms in such Section 145(h) and Section

145(i).

 

     15.  Subsequent Legislation.  If the General Corporation Law of Delaware is

          ----------------------                                               

amended after adoption of this Article to expand further the indemnification

permitted to Indemnitees, then the Corporation shall indemnify such persons to

the fullest extent permitted by the General Corporation Law of Delaware, as so

amended.

 

     TENTH.  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 statute and this Certificate of

Incorporation, and all rights conferred upon stockholders herein are granted

subject to this reservation.

 

     ELEVENTH.  This Article is inserted for the management of the business and

for the conduct of the affairs of the Corporation.

 

     1.   Number of Directors.  The number of directors of the Corporation shall

          -------------------                                                  

not be less than three.  The exact number of directors within the limitations

specified in the preceding sentence shall be fixed from time to time by, or in

the manner provided in, the Corporation's By-Laws.

 

     2.   Classes of Directors.  The Board of Directors shall be and is divided

          --------------------                                                

into three classes:  Class I, Class II and Class III.  No one class shall have

more than one director more than any other class.  If a fraction is contained in

the quotient arrived at by dividing the designated number of directors by three,

then, if such fraction is

 

                                      -9-

<PAGE>

 

one-third, the extra director shall be a member of Class I, and if such fraction

is two-thirds, one of the extra directors shall be a member of Class I and one

of the extra directors shall be a member of Class II, unless otherwise provided

from time to time by resolution adopted by the Board of Directors.

 

     3.   Election of Directors.  Elections of directors need not be by written

          ---------------------                                               

ballot except as and to the extent provided in the By-Laws of the Corporation.

 

     4.   Terms of Office.  Each director shall serve for a term ending on the

          ---------------                                                    

date of the third annual meeting following the annual meeting at which such

director was elected; provided, that each initial director in Class I shall

                      --------                                            

serve for a term ending on the date of the annual meeting in 1997; each initial

director in Class II shall serve for a term ending on the date of the annual

meeting in 1998; and each initial director in Class III shall serve for a term

ending on the date of the annual meeting in 1999; and provided further, that the

                                                      ----------------         

term of each director shall be subject to the election and qualification of his

successor and to his earlier death, resignation or removal.

 

     5.   Allocation of Directors Among Classes in the Event of Increases or

          ------------------------------------------------------------------

Decreases in the Number of Directors.  In the event of any increase or decrease

- ------------------------------------                                           

in the authorized number of directors, (i) each director then serving as such

shall nevertheless continue as a director of the class of which he is a member

and (ii) the newly created or eliminated directorships resulting from such

increase or decrease shall be apportioned by the Board of Directors among the

three classes of directors so as to ensure that no one class has more than one

director more than any other class. To the extent possible, consistent with the

foregoing rule, any newly created directorships shall be added to those classes

whose terms of office are to expire at the latest dates following such

allocation, and any newly eliminated directorships shall be subtracted from

those classes whose terms of offices are to expire at the earliest dates

following such allocation, unless otherwise provided from time to time by

resolution adopted by the Board of Directors.

 

     6.   Quorum; Action at Meeting.  A majority of the directors at any time in

          -------------------------                                            

office shall constitute a quorum for the transaction of business.  In the event

one or more of the directors shall be disqualified to vote at any meeting, then

the required quorum shall be reduced by one for each director so disqualified,

provided that in no case shall less than one-third of the number of directors

fixed pursuant to Section 1 above constitute a quorum.  If at any meeting of the

Board of Directors there shall be less than such a quorum, a majority of those

present may adjourn the meeting from time to time.  Every act or decision done

or made by a majority of the directors present at a meeting duly held at which a

quorum is present shall be regarded as the act of the Board of Directors unless

a greater number is required by law, by the By-Laws of the Corporation or by

this  Certificate of Incorporation.

 

     7.   Removal.  Directors of the Corporation may be removed only for cause

          -------                                                            

by the affirmative vote of the holders of at least two-thirds of the shares of

the capital

 

                                      -10-

<PAGE>

 

stock of the Corporation issued and outstanding and entitled to vote.

 

     8.   Vacancies.  Any vacancy in the Board of Directors, however occurring,

          ---------                                                           

including a vacancy resulting from an enlargement of the board, shall be filled

only by a vote of a majority of the directors then in office, although less than

a quorum, or by a sole remaining director.  A director elected to fill a vacancy

shall be elected to hold office until the next election of the class for which

such director shall have been chosen, subject to the election and qualification

of his successor and to his earlier death, resignation or removal.

 

     9.   Stockholder Nominations and Introduction of Business, Etc.  Advance

          ----------------------------------------------------------        

notice of stockholder nominations for election of directors and other business

to be brought by stockholders before a meeting of stockholders shall be given in

the manner provided by the By-Laws of the Corporation.

 

     10.  Amendments to Article.  Notwithstanding any other provisions of law,

          ---------------------                                              

this Amended and Restated Certificate of Incorporation or the By-Laws of the

Corporation, and notwithstanding the fact that a lesser percentage may be

specified by law, the affirmative vote of the holders of at least two-thirds of

the shares of capital stock of the Corporation issued and outstanding and

entitled to vote shall be required to amend or repeal, or to adopt any provision

inconsistent with, this Article ELEVENTH.

 

     TWELFTH.  Stockholders of the Corporation may not take any action by

written consent in lieu of a meeting.  Notwithstanding any other provisions of

law, this Amended and Restated Certificate of Incorporation or the By-Laws of

the Corporation, and notwithstanding the fact that a lesser percentage may be

specified by law, the affirmative vote of the holders of at least two-thirds of

the shares of capital stock of the Corporation issued and outstanding and

entitled to vote shall be required to amend or repeal, or to adopt any provision

inconsistent with, this Article TWELFTH.

 

     THIRTEENTH.    Special meetings of stockholders may be called at any time

by only the Chairman of the Board of Directors, the Chief Executive Officer (or

if there is no Chief Executive Officer, the President) or the Board of

Directors.  Business transacted at any special meeting of stockholders shall be

limited to matters relating to the purpose or purposes stated in the notice of

meeting.  Notwithstanding any other provisions of law, this Amended and Restated

Certificate of Incorporation or the By-Laws of the Corporation, and

notwithstanding the fact that a lesser percentage may be specified by law, the

affirmative vote of the holders of at least two-thirds of the shares of capital

stock of the Corporation issued and outstanding and entitled to vote shall be

required to amend or repeal, or to adopt any provision inconsistent with, this

Article THIRTEENTH.

 

                                      -11-

<PAGE>

 

     IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be

affixed hereto and this Amended and Restated Certificate of Incorporation to be

signed by its Chairman of the Board this ____ day of ___________, 1996.

 

 

                                                     UNITED NATURAL FOODS, INC.

 

 

 

                                                     By:________________________

                                                           Norman A. Cloutier

                                                           Chairman of the Board

 

 

 

 

CERTIFICATE OF AMENDMENT

OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

UNITED NATURAL FOODS, INC.

 

Pursuant to Section 242 of the General Corporation Law of the State of Delaware, United Natural Foods, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify:

FIRST: That the Corporation’s Board of Directors duly adopted resolutions on September 11, 2013, proposing and declaring advisable the following amendment to the Amended and Restated Certificate of Incorporation:

RESOLVED: That the Amended and Restated Certificate of Incorporation of the Corporation be amended by deleting Article ELEVENTH in its entirety and inserting the following in lieu thereof:

ELEVENTH. This Article is inserted for the management of the business and for the conduct of the affairs of the Corporation.

1. Number of Directors. The number of directors of the Corporation shall not be less than three. The exact number of directors within the limitations specified in the preceding sentence shall be fixed from time to time by, or in the manner provided in, the Corporation's By-Laws.

2. Classes of Directors. The Board of Directors shall be and is divided into three classes: Class I, Class II and Class III, which shall be as nearly equal in number as possible. Each director shall serve for a term ending on the date of the third annual meeting following the annual meeting at which such director was elected. Notwithstanding the foregoing, (i) at the annual meeting of stockholders held in 2013, the directors whose terms expired at that meeting shall be elected to hold office for a one-year term expiring at the annual meeting of stockholders held in 2014; (ii) at the annual meeting of stockholders held in 2014, the directors whose terms expire at that meeting shall be elected to hold office for a one-year term expiring at the annual meeting of stockholders held in 2015; and (iii) at the annual meeting of stockholders held in 2015 and each annual meeting of stockholders thereafter, all directors shall be elected for a one-year term expiring at the next annual meeting of stockholders. Effective as of the annual meeting of stockholders held in 2015, the Board of Directors will no longer be classified under Section 141(d) of the DGCL and directors shall no longer be divided into three classes. Prior to the annual meeting of stockholders held in 2015, if the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal in number as possible.

3. Election of Directors. Elections of directors need not be by written ballot except as and to the extent provided in the By-Laws of the Corporation.

4. Term of Office. Each director shall hold office until the annual meeting of stockholders for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office.

5. Quorum; Action at Meeting. A majority of the directors at any time in office shall constitute a quorum for the transaction of business. In the event one or more of the directors shall be disqualified to vote at any meeting, then the required quorum shall be reduced by one for each director so disqualified, provided that in no case shall less than one-third of the number of directors fixed pursuant to Section 1 above constitute a quorum. If at any meeting of the Board of Directors there shall be less than such a quorum, a majority of those present may adjourn the meeting from time to time. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors unless a greater number is required by law, by the By-Laws of the Corporation or by this Amended and Restated Certificate of Incorporation.

6. Removal. Any director serving in a class of directors elected for a term expiring at the third annual meeting of stockholders following the election of such class shall be removable only for cause, and all other directors shall be removable either with or without cause. The removal of any director, whether with or without cause, shall

 

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require the affirmative vote of the holders of at least two-thirds of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote.

7. Vacancies. Any vacancy on the Board of Directors, however occurring, including a vacancy resulting from an enlargement of the board, shall be filled only by a vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Until the annual meeting of stockholders held in 2015, (i) any director of any class elected to fill a vacancy on the Board of Directors resulting from an increase in the number of directors of such class shall hold office for a term that shall coincide with the remaining term of that class, and (ii) any director elected to fill a vacancy on the Board of Directors not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor. Following the annual meeting of stockholders held in 2015, any director elected to fill a vacancy on the Board of Directors, whether such vacancy is the result of an increase in the number of directors or the result of a director’s death, resignation, retirement, disqualification or removal, shall hold office until the next annual meeting of stockholders to occur following such director’s election to the Board of Directors. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

8. Stockholder Nominations and Introduction of Business, Etc. Advance notice of stockholder nominations for election of directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the By-Laws of the Corporation.

9. Rights of Preferred Stock. Notwithstanding the provisions of this Article ELEVENTH, whenever the holders of one or more classes or series of Preferred Stock issued by the Corporation shall have the right, voting separately or together by series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies, and other features of such directorship shall be governed by the rights of such Preferred Stock as set forth in the certificate of designations governing such series or resolutions of the Board of Directors applicable thereto.

10. Amendments to Article. Notwithstanding any other provisions of law, this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least two-thirds of the shares of capital stock of the Corporation issued and outstanding and entitled to vote shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article ELEVENTH.

SECOND: That the stockholders of the Corporation, at the 2013 Annual Meeting of the Stockholders held on December 18, 2013, duly approved said proposed Certificate of Amendment of Amended and Restated Certificate of Incorporation in accordance with Section 242 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by _________, its ________, on this ___ day of _________, _____.

 

 

UNITED NATURAL FOODS, INC.

By:

 

Name:

 

Title:

 

 

 

[Approved by Shareholders: 12-18-2013]

 

 

AMENDMENTS TO THE AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

UNITED NATURAL FOODS, INC.

 

Additions are reflected with underlined text and deletions are reflected with text that has been struck through.

6. Removal. Any director serving in a class of directors elected for a term expiring at the third annual meeting of stockholders following the election of such class shall be removable only for cause, and all other directors shall be removable either with or without cause. The removal of any director, whether with or without cause, shall require the affirmative vote of the holders of at least two-thirdsa majority of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote.

10. Amendments to Article. Notwithstanding any other provisions of law, this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least two-thirds of the shares of capital stock of the Corporation issued and outstanding and entitled to vote shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article ELEVENTH.

TWELFTH. Stockholders of the Corporation may not take any action by written consent in lieu of a meeting. Notwithstanding any other provisions of law, this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least two-thirds of the shares of capital stock of the Corporation issued and outstanding and entitled to vote shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article TWELFTH.

THIRTEENTH. Special meetings of stockholders may be called at any time by only the Chairman of the Board of Directors, the Chief Executive Officer (or if there is no Chief Executive Officer, the President) or the Board of Directors. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. Notwithstanding any other provisions of law, this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least two-thirds of the shares of capital stock of the Corporation issued and outstanding and entitled to vote shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article THIRTEENTH.

NOTE:    IF PROPOSAL 4 AND PROPOSAL 5 ARE EACH APPROVED BY THE REQUISITE VOTE OF THE STOCKHOLDERS, ARTICLE THIRTEENTH WILL BE AMENDED AS FOLLOWS WITH ADDITIONS REFLECTED WITH UNDERLINED TEXT AND DELETIONS REFLECTED WITH TEXT THAT HAS BEEN STRUCK THROUGH:

THIRTEENTH. Special meetings of stockholders may be called at any time by only the Chairman of the Board of Directors, the Chief Executive Officer (or if there is no Chief Executive Officer, the President) or the Board of Directors and, subject to the provisions of the Corporation’s By-Laws, a special meeting of the stockholders shall be called by the Secretary of the Corporation upon written request of the holders of record of at least twenty-five percent (25%) of the voting power of all outstanding shares of Common Stock entitled to vote at such meeting, such voting power to be calculated and determined in the manner specified, and with any limitations as may be set forth, in the Corporation’s By-Laws Subject to the rights of the holders of any shares of Preferred Stock issued and outstanding at such time, special meetings of stockholders may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. Notwithstanding any other provisions of law, this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation, and notwithstanding the fact that a lesser

 

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percentage may be specified by law, the affirmative vote of the holders of at least two-thirds of the shares of capital stock of the Corporation issued and outstanding and entitled to vote shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article THIRTEENTH.

 

[As Filed: 11-07-2014]