CERTIFICATE OF INCORPORATION
OF
GAF NEWCO INC.
THE UNDERSIGNED, being a natural person for the purposes of
organizing a corporation under the General Corporation Law of the State of
Delaware, hereby certifies that:
FIRST: The name of the Corporation is GAF Newco Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 32 Loockerman Square, Suite L-100, City of Dover,
County of Kent, State of Delaware. The name of the registered agent of the
Corporation in the State of Delaware at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as from time to time amended.
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 1,000, all of which shares shall be
Common Stock having a par value of $.001.
FIFTH: The name and mailing address of the incorporator is Shelley
A. Sorkin, c/o ISP Management Company, Inc., 1361 Alps Road, Wayne, New Jersey
07470.
SIXTH: In furtherance and not in limitation of the powers conferred
by law, subject to any limitations contained elsewhere in these articles of
incorporation, By-laws of the Corporation may be adopted, amended or repealed by
a majority of the board of directors of the Corporation, but any By-laws adopted
by the board of directors may be amended or repealed by the stockholders
entitled to vote thereon. Election of directors need not be by written ballot.
SEVENTH: (a) A director of the Corporation shall not be personally
liable either to the Corporation or to any stockholder for monetary damages for
breach of fiduciary
duty as a director, except (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, or (ii) for acts or omissions which are
not in good faith or which involve intentional misconduct or knowing violation
of the law, or (iii) for any matter in respect of which such director shall be
liable under Section 174 of Title 8 of the General Corporation Law of the State
of Delaware or any amendment thereto or successor provision thereto, or (iv) for
any transaction from which the director shall have derived an improper personal
benefit. Neither amendment nor repeal of this paragraph (a) nor the adoption of
any provision of the Certificate of Incorporation inconsistent with this
paragraph (a) shall eliminate or reduce the effect of this paragraph (a) in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this paragraph (a) of this Article, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to, or testifies in, any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative in nature, by reason of the fact that such person is or was a
director, office, 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, employee benefit plan, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding to the full extent permitted
by law, and the Corporation may adopt By-laws or enter into agreements with any
such person for the purpose of providing for such indemnification.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Incorporation on this 31st day of January 1994.
/s/ Shelley A. Sorkin
-----------------------------
Shelley A. Sorkin
Sole Incorporator
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
GAF NEWCO INC.
ADOPTED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 242 OF THE
DELAWARE GENERAL CORPORATION LAW
It is hereby certified that:
1. The present name of the corporation (the "Corporation") is GAF
Newco Inc.
2. The Certificate of Incorporation of the Corporation was filed
with the Secretary of State of Delaware on January 31, 1994.
3. Article FIRST of the Certificate of Incorporation of the
Corporation is hereby amended to read in its entirety as follows:
"The name of the Corporation is Building Materials Corporation of
America."
4. The foregoing amendment was declared advisable by a resolution
duly adopted by unanimous written consent of the directors of the Corporation
dated February 18, 1994 and was duly adopted in accordance with the provisions
of Section 242 of the Delaware General Corporation Law by the affirmative vote
of the sole stockholder of the Corporation.
IN WITNESS WHEREOF, the undersigned have executed this certificate
as of February 22, 1994.
GAF Newco Inc.
By: /s/ Mark A. Buckstein
-------------------------
Mark A. Buckstein
Executive Vice President
Attest:
/s/ Elisa D. Garcia C.
- ------------------------------
Elisa D. Garcia C.
Assistant Secretary
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
BUILDING MATERIALS CORPORATION OF AMERICA
(Pursuant to Section 242 of the
General Corporation Law of Delaware)
------------------------------------
Building Materials Corporation of America, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), does
hereby certify as follows:
1. The Certificate of Incorporation of the Corporation (the
"Certificate") was filed with the Secretary of State of Delaware on January 31,
1994. The Corporation was formerly known as GAF Newco Inc.
2. Article FOURTH of the Certificate is hereby amended to read in
its entirety as follows:
FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is One Million
One Hundred Thousand (1,100,000) shares, consisting of:
(a) One Million Fifty Thousand (1,050,000) shares of
Common Stock, par value $.001 (hereinafter referred to as
"Common Stock"); and
(b) Fifty Thousand (50,000) shares of Preferred Stock,
par value $.01 (hereinafter referred to as "Preferred Stock").
A. PREFERRED STOCK: Shares of Preferred Stock may be issued
from time to time in one or more series, as may from time to time be
determined by the Board of Directors, each of said series to be
distinctly designated. All shares of any one series of Preferred
Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special
rights of each series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all
other series at any time outstanding; and, subject to the provisions
of subparagraph 1 of Paragraph C of this Article FOURTH, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but without
limiting the generality of the foregoing, the following:
(a) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such series,
which number may be increased (except where otherwise provided
by the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(b) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock of
such series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes or series of the same or other
classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(c) The right, if any, of the holders of Preferred Stock
of such series to convert the same into, or exchange the same
for, shares of any other class or classes or of
2
any series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(d) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or prices,
including, without limitation, cash, property, or rights
(including securities of the Corporation or any other
corporation), and the time or times at which, and the terms
and conditions on which, Preferred Stock of such series may be
redeemed;
(e) The rights, if any, of the holders of Preferred
Stock of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up of the Corporation;
(f) The terms of the sinking fund or redemption or
purchase account, to be provided for the Preferred Stock of
such series; and
(g) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing, include the right, voting as a
series by itself or together with other series of preferred
Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have
been a default in the payment of dividends on any one or more
series of Preferred Stock or under such other circumstances
and on such conditions as the Board of Directors may
determine.
B. COMMON STOCK
1. After the requirements with respect to
preferential dividends on the Preferred Stock (fixed in accordance
with the provisions of Paragraph A of this Article FOURTH), if any,
shall have been met and after the Corporation shall have
3
complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase
accounts (fixed in accordance with the provisions of Paragraph A of
this Article FOURTH), and subject further to any other conditions
which may be fixed in accordance with the provisions of Paragraph A
of this Article FOURTH, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be declared
from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount, if any (fixed in accordance with the provisions of Paragraph
A of this Article FOURTH), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the
holders of the Common Stock, subject to the rights, if any, of the
holders of Preferred Stock to participate therein (fixed in
accordance with Paragraph A of this Article FOURTH), shall be
entitled to receive all the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for distribution
to stockholders ratably in proportion to the number of shares of
Common Stock held by them, respectively.
3. Except as may otherwise be required by law or
by the provisions of such resolutions as may be adopted by the Board
of Directors pursuant to Paragraph A of this Article FOURTH, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held by him on all matters voted upon by the
stockholders.
C. OTHER PROVISIONS:
1. No holder of any of the shares of any class or
series of stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or subscribe
for any unissued stock of any class or series or any additional
shares of any class or series to be issued by reason of any
4
increase of the authorized capital stock of the Corporation of any
class or series, or bonds, certificates of indebtedness, debentures
or other securities convertible into or exchangeable for stock of
the Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of
pursuant to a resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others,
and upon such terms, as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
2. The relative powers, preferences and rights of
each series of preferred Stock in relation to the powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board of
Directors in the resolution or resolutions adopted pursuant to
authority granted in Paragraph A of this Article FOURTH, and the
consent, by class or series vote or otherwise, of the holders of
such of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed
by the Board of directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or any of
them; provided, however, that the Board of Directors may provide in
the resolution or resolutions as to any series of Preferred Stock
adopted pursuant to Paragraph A of this Article FOURTH that the
consent of the holders of a majority (of such greater proportion as
shall be therein fixed) of the outstanding shares of such series
voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
5
3. Subject to the provisions of sub-paragraph 2 of
this Paragraph C, shares of any series of Preferred Stock may be
issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
4. Shares of Common Stock may be issued from time
to time as the Board of Directors of the Corporation shall determine
and on such terms and for such consideration as shall be fixed by
the Board of Directors.
5. The authorized amount of shares of Common Stock
and of Preferred Stock may, without a class or series vote, be
increased or decreased from time to time by the affirmative vote of
the holders of a majority of the stock of the Corporation entitled
to vote thereon.
3. The foregoing Amendment to the Certificate was duly adopted in
accordance with Section 242 of the General Corporation Law of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by its duly authorized officers this 26th day of
August, 1996.
By: /s/ James P. Rogers
--------------------------------
James P. Rogers
Senior Vice President
Attest: /s/ Richard A. Weinberg
--------------------------------
Richard A. Weinberg
Secretary
6
CERTIFICATE OF DESIGNATIONS
OF BUILDING MATERIALS CORPORATION OF AMERICA
-----------------------
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
-----------------------
We, the undersigned, Senior Vice President and Secretary,
respectively, of Building Materials Corporation of America (the "Corporation"),
a corporation organized and existing under the General Corporation Law of the
State of Delaware (the "General Corporation Law"), in accordance with the
provisions of Section 151 thereof, do hereby certify that the Board of Directors
of the Corporation duly adopted the following resolutions by unanimous consent
dated as of August 15, 1996:
RESOLVED, that, pursuant to the authority expressly granted to and
vested in the Board of Directors of the Corporation by the provisions of the
Certificate of Incorporation of the Corporation, this Board of Directors hereby
creates and authorizes the issuance of a series of Series A Cumulative
Redeemable Convertible Preferred Stock, par value $.01 per share, and hereby
fixes the designation, dividend rate, redemption provisions, voting powers,
rights on liquidation, dissolution or winding up, and other preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations, or restrictions thereof, as follows:
1. Designation. The Preferred Stock created and authorized hereby
shall be designated as the "Series A Cumulative Redeemable Convertible Preferred
Stock" (the "Series A Preferred Stock"). The number of shares of Series A
Preferred Stock shall be 50,000. The liquidation preference of the Series A
Preferred Stock shall be $100 per share (the "Liquidation Preference").
2. Dividends.
(a) Each holder of a share of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors, out
of the funds of
1
the Corporation legally available therefor pursuant to the General Corporation
Law (the "Legally Available Funds"), cumulative cash dividend payments of $2.00
per share for each full Quarterly Dividend Period (as defined in Section 2(f)
hereof) that such share of Series A preferred Stock is outstanding; provided, if
a share of Series A Preferred Stock is not outstanding for a full Quarterly
Dividend Period, the dividend payment per share in respect of such partial
Quarterly Dividend Period shall be equal to $2.00 multiplied by a fraction, the
number of which is the number of days such share was outstanding (but not more
than 30 days for any calendar month fully occurring in such portion), and the
denominator of which is 90. Such dividends, if and to the extent declared, shall
be payable quarterly in arrears on January 1, April 1, July 1 and October 1 of
each year (each, a "Dividend Payment Date"); provided that if any such date is
not a Business Day (as defined in Section 2(f) hereof), then the applicable
dividend shall be payable, if and to the extend declared, on the next succeeding
Business Day. Such dividends shall be fully cumulative.
(b) Dividends shall accrue (whether or not declared or paid)
on each share of Series A Preferred Stock from the date on which such share is
issued.
(c) Quarterly dividends, if and to the extent declared, shall
be paid to the holders of record of shares of Series A Preferred Stock as they
appear on the stock register of the Corporation on the record date therefor,
which record date shall be the December 15, March 15, June 15 and September 15
immediately preceding the Dividend Payment Date relating thereto.
(d) If dividends are not paid in full, or not declared in full
and sums set apart for the payment thereof, on the Series A Preferred Stock and
any Capital Stock (as defined in Section 2(f) hereof) of the Corporation ranking
on a parity with the Series A Preferred Stock as to the payment of dividends,
all dividends declared upon shares of Series A Preferred Stock and shares of
such other stock shall be declared pro rata so that in all cases the amount of
dividends declared per share on the Series A Preferred Stock and such other
stock shall bear to each other the same ratio that accumulated, unpaid dividends
per share on the Series A Preferred Stock and such other stock shall bear to
each other. Except as provided in the preceding sentence, unless full cumulative
dividends on the Series A Preferred
2
Stock have been paid or declared in full and sums set aside for the payment
thereof, no dividends shall be declared or paid or set aside for payment, or
other distribution made, on any Capital Stock of the Corporation ranking on a
parity with or junior to the Series A Preferred Stock as to the payment of
dividends, nor shall any such stock be purchased, redeemed or otherwise
acquired, except as provided in Section 2(e) hereof, for any consideration (or
any payment made to or available for a sinking fund for the redemption of any
such stock).
(e) Except as provided in Section 2(d) hereof, the Corporation
may not pay cash dividends or make cash distributions on, or repurchase, redeem
or otherwise acquire (except in exchange for shares of Capital Stock ranking
junior to the Series A Preferred Stock as to the payment of dividends and as to
the distribution of assets upon liquidation, dissolution or winding up of the
Corporation or options, rights or warrants to acquire such shares) any of its
Capital Stock other than Capital Stock ranking senior to the Series A Preferred
Stock as to the payment of dividends, if, at such date, there are accumulated,
unpaid dividends on the Series A Preferred Stock; provided that the Corporation
may purchase outstanding shares of Common Stock and Series A Preferred Stock
from the holders thereof in accordance with the terms and conditions of the
Option Agreements (as defined in Section 2(f)).
(f) The following terms shall have the meanings set forth
below:
"Book Value" shall mean, as of any date of determination, (x)
shareholder's equity of the Corporation as of that date determined in accordance
with generally accepted accounting principles, but adding back (A) the charge to
shareholder's equity relating to the assumption by the Corporation of certain
asbestos-related liabilities of GAF Building Materials Corporation in connection
with the Corporation's formation, (B) the reduction in shareholder's equity
resulting from purchases of the capital stock of GAF Corporation ("GAF") by
persons who participated in promoting the management buy-out of GAF in March
1989 (the "Acquisition") (predecessor cost basis adjustment) and (C) any amounts
reflecting the liquidation preferences of any outstanding preferred stock of the
Corporation and excluding, to the extent occurring after December 31, 1995, (1)
nonrecurring non-operating losses and charges to
3
stockholder's equity and nonrecurring non-operating gains and increases in
stockholder's equity, including any further charge relating to asbestos-related
liabilities and any increase in stockholder's equity attributable to a public
offering of capital stock of the Corporation, (2) net gains or losses in respect
of dispositions of assets by the Corporation other than in the ordinary course
of business, and (3) any charges relating to amortization of goodwill and other
intangibles arising from the Acquisition divided by (y) 1,000,000. Any
adjustments to Book Value shall include the tax effects, if any, associated
therewith. If the Series A Preferred Stock or Common Stock are converted or
exchanged for other securities or property pursuant to a recapitalization, stock
split, combination, reorganization, merger, exchange or similar transaction, or
if a sale of all or substantially all of the Common Stock of the Corporation
shall occur or be pending, Book Value shall be modified by the Board of
Directors in such manner as is reasonable under the circumstances. All
determinations by the Board of Directors hereunder shall be made in good faith
and shall be binding and conclusive.
"Business Day" means any day other than a Saturday, a Sunday or any
other day on which commercial banking institutions in the City of New York are
authorized by law to be closed.
"Capital Stock" of any person means any and all shares, interests,
participations or other equivalents (however designated) of equity interests in
such person.
"Common Stock" means the Corporation's common stock, par value $.001
per share, and any securities or property into which the Corporation's Common
Stock may be converted or exchange pursuant to a recapitalization, stock split,
combination, reorganization, merger, exchange or similar transaction.
"Corporation" means the party named as such in the preamble to this
Certificate.
"Option Agreements" means option agreements between the Corporation
and employees of the Corporation or U.S. Intec, Inc. relating to the Series A
Preferred Stock.
"person" means any individual, partnership, joint venture, firm,
corporation, association, trust or other
4
enterprise or any government or political subdivision or agency, department or
instrumentality thereof.
"Quarterly Dividend Period" means the applicable period from January
1, through the next March 31, from April 1 through the next June 30, from July 1
through the next September 30 or from October 1 through the next December 31.
3. Redemption.
(a) The Series A Preferred Stock shall be redeemable, at any
time in whole or from time to time in part, out of Legally Available Funds, at
the option of the Corporation, upon giving notice as provided in Section 3(b)
hereof, at the Liquidation Preference thereof plus accumulated but unpaid
dividends to the date of redemption.
(b) At least 30 days but not more than 60 days prior to the
date fixed for the redemption of shares of the Series A Preferred Stock pursuant
to Section 3(a) hereof (each a "Redemption Date"), written notice of such
redemption shall be mailed to each holder of record of shares of Series A
Preferred Stock to be redeemed in a postage prepaid envelope addressed to such
holder at his mailing address as shown on the records of the Corporation;
provided, however, that no failure of any holder of Series A Preferred Stock to
receive such notice nor any defect therein shall affect the validity of the
proceeding for the redemption of the shares of Series A Preferred Stock, to be
redeemed. Each such notice shall state (i) the Redemption Date; (ii) the number
of shares of Series A Preferred Stock to be redeemed and, if fewer than all of
the shares held by such holder are to be redeemed from such holder, the number
of shares to be redeemed from such holder; (iii) the cash redemption price being
paid; (iv) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that dividends on the
shares to be redeemed shall cease to accrue on the Redemption Date. On or after
the Redemption Date, each holder of shares of Series A Preferred Stock to be
redeemed shall present and surrender his certificate or certificates for such
shares to the Corporation at the place designated in such notice and thereupon
the redemption price of such shares shall be paid to the person whose name
appears on such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled. In case fewer than all of the shares
represented by such certificate
5
are redeemed, a new certificate shall be issued representing the unredeemed
shares. From and after the Redemption Date (unless default shall be made by the
Corporation in payment of the redemption price) all dividends on the shares of
Series A Preferred Stock designated for redemption in such notice shall cease to
accrue and all rights of the holders thereof as stockholders of the Corporation,
except the right to receive the redemption price thereof, without interest, upon
the surrender of certificates representing the same, shall cease and terminate
and such shares shall not thereafter be transferred (except with the written
consent of the Corporation) on the books of the Corporation and such shares
shall not be deemed to be outstanding for any purpose whatsoever.
(c) If fewer than all of the shares of Series A Preferred
Stock are to be redeemed, the Board of Directors of the Corporation shall select
the shares to be redeemed on such basis as the Board of Directors shall
determine in its sole discretion. The Board of Directors shall not be required
to redeem shares of Series A Preferred Stock on a pro rata basis. The Board of
Directors may elect to redeem shares of Series A Preferred Stock held by one
holder or group of holders and elect not to redeem shares of Series A Preferred
Stock held by other holders. Regardless of the method used, the calculation of
the number of shares to be redeemed shall be based upon whole shares, such that
the Corporation shall in no event be required to issue fractional shares of
Series A Preferred Stock or cash in lieu thereof. In the event a method
requiring proration is used, the number of shares to be redeemed from a holder
shall be rounded downward to the nearest whole number of shares. The holders of
Series A Preferred Stock shall have no right to request the Corporation to
redeem such shares at any time, and the Corporation shall have no obligation to
honor any such request if made.
4. Voting Rights. The holders of Series A Preferred Stock shall be
entitled to one vote for each share held on all matters to be voted on by the
stockholders of the Corporation and shall vote together with the holders of
Common Stock and the holders of any other class of stock entitled to vote in
such manner. The holders of Series A Preferred Stock shall not, except as
required by law, be entitled to vote as a separate class. Without limiting the
generality of the preceding sentence, a class vote or the consent of the holders
of the outstanding shares of Series A Preferred Stock as a separate class shall
not be required in
6
connection with: (i) the creation of any class or series of Capital Stock of the
Corporation; (ii) any merger, consolidation or transfer of all or substantially
all the assets of the Corporation or other transaction involving the Corporation
and a third party in which the Corporation is the survivor or in which the
Corporation is not the survivor and in which the Series A Preferred Stock shall
(a) remain outstanding as an equivalent security of the survivor with no adverse
change to the powers, preferences or special rights provided for in this
Certificate or (B) be redeemed for an amount per share equal to the Liquidation
Preference plus accrued and unpaid dividends; or (iii) any increase in the total
number of authorized or issued shares of Capital Stock of any class, including
without limitation Series A Preferred Stock.
5. Priority of Series A Preferred Stock in Event of Liquidation,
Dissolution or Winding Up. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, after
payment or provision for payment of the debts and other liabilities of the
Corporation, the holders of the Series A Preferred Stock shall be entitled to
receive, out of the remaining net assets of the Corporation, an amount per share
in cash equal to the Liquidation Preference plus all dividends accrued and
unpaid on each such share up to the date fixed for distribution before any
distribution shall be made to the holders of any Capital Stock of the
Corporation ranking junior to the Series A Preferred Stock as to the
distribution of assets upon the liquidation, dissolution or winding up of the
Corporation. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets distributable among the holders of Series A Preferred
Stock and any Capital Stock of the Corporation ranking on a parity with the
Series A Preferred Stock as to the distribution of assets upon the liquidation,
dissolution or winding up of the Corporation shall be insufficient to permit the
payment in full to the holders of the Series A Preferred Stock and such other
stock of all preferential amounts payable to all such holders, then the assets
thus distributable shall be distributed ratably among the holders of the Series
A Preferred Stock and any Capital Stock of the Corporation ranking on a parity
with the Series A Preferred Stock as to the distribution of assets upon
liquidation, dissolution or winding up of the Corporation in proportion to the
respective amounts that would be payable per share if such assets were
sufficient to permit payment in full. Except as otherwise provided in this
Section 5, holders of Series A
7
Preferred Stock shall not be entitled to any distribution in the event of
liquidation, dissolution or winding up of the affairs of the Corporation. For
the purposes of this Section 5, neither the voluntary sale, lease, conveyance,
exchange or transfer (for cash, securities or other consideration) of all or
substantially all the property or assets of the Corporation, nor the
consolidation or merger of the Corporation with one or more other corporations,
shall be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
6. Conversion.
(a) The holders of shares of Series A Preferred Stock shall
have the right, at any time or from time to time, at their option, to convert
all or any portion of such shares into shares of Common Stock on the following
basis: Each share of Series A Preferred Stock shall be convertible into the
number of shares of Common Stock equal to 100 divided by 115% of Book Value as
of December 31, 1995. The Corporation may, at its option, pay to any holder cash
in lieu of any fractional share of Common Stock issuable upon conversion of
shares of Series A preferred Stock.
(b) In the case of a redemption pursuant to Section 3 hereof
of any shares of Series A Preferred Stock, the right of conversion under this
Section 6 shall cease and terminate, as to the shares to be redeemed, at the
close of business on the second day preceding the date fixed for such
redemption, unless default shall be made in the payment of the Redemption Price
for the shares to be so redeemed.
(c) In order to convert shares of Series A Preferred Stock
into shares of Common Stock pursuant to the right of conversion set forth in
Section 6(a), the holder thereof shall surrender the certificate or certificates
representing Series A Preferred Stock, duly endorsed to the Corporation or in
blank, at the principal office of the Corporation and shall give written notice
the Corporation that such holder elects to convert the same. Within five
business days, the Corporation shall deliver at said office to such holder of
Series A Preferred Stock a certificate or certificates for the number of shares
of Common Stock to which such holder shall be entitled as aforesaid. Shares of
Series A Preferred Stock shall be deemed to have been converted as of the date
of the surrender of such shares for conversion as provided above, and the person
entitled to
8
receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder of such shares of Common Stock on
such date. Upon conversion of only a portion of the number of shares covered by
a certificate representing shares of Series A Preferred Stock surrendered for
conversion, the Corporation shall issue and deliver to the holder of the
certificate so surrendered for conversion, at the expense of the Corporation, a
new certificate covering the number of shares of Series A Preferred Stock
representing the unconverted portion of the certificate so surrendered, which
new certificate shall entitle the holder thereof to the rights of the shares of
Series A Preferred Stock represented thereby to the same extent as if the
certificate theretofore covering such unconverted shares had not been
surrendered for conversion.
(d) The issuance of certificates for shares of Common Stock
upon the conversion of shares of Series A Preferred Stock shall be made without
charge to the converting stockholder for any original issue or transfer tax in
respect of the issuance of such certificates and any such tax shall be paid by
the Corporation.
(e) The Corporation shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
Series A Preferred Stock, the full number of shares of Common Stock then
deliverable upon the conversion of all shares of Series A Preferred Stock at the
time outstanding. The Corporation shall take at all times such corporate action
as shall be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Common Stock upon the conversion of
Series A Preferred Stock in accordance with the provisions hereof, free from all
taxes, liens, charges and security interests with respect to the issue thereof.
The Corporation will, at its expense, use its best efforts to cause such shares
to be listed (subject to issuance or notice of issuance) on all stock exchanges,
if any, on which the Corporation's Common Stock may become listed.
7. Cancellation of Reacquired Series A Preferred Stock. Shares of
Series A Preferred Stock which have been issued and reacquired in any manner,
including shares purchased or redeemed, shall (upon compliance with any
applicable provisions of the laws of the State of Delaware)
9
have the status of authorized and unissued shares of preferred stock
undesignated as to series and may be redesignated and reissued as part of any
series of preferred stock.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to
be duly executed on its behalf, this 26th day of August, 1996.
Building Materials Corporation of America
By: /s/ James P. Rogers
----------------------------------
Senior Vice President
James P. Rogers
ATTEST:
/s/ Richard A. Weinberg
- --------------------------------------
Secretary, Richard A. Weinberg
(Corporate Seal)
10
AMENDED CERTIFICATE OF DESIGNATION
OF
BUILDING MATERIALS CORPORATION OF AMERICA
CERTIFICATE OF DESIGNATION OF
SERIES A CUMULATIVE REDEEMABLE CONVERTIBLE
PREFERRED STOCK, PAR VALUE $.01 PER SHARE
------------------------
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
------------------------
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is Building Materials Corporation of America.
SECOND: The Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on January 31, 1994.
The Corporation was formerly known as GAF Newco Inc.
THIRD: The Certificate of Designations (the "Certificate of
Designations") of Series A Cumulative Redeemable Convertible Preferred Stock,
par value $.01 per share (the "Preferred Stock"), of the Corporation was filed
with the Secretary of State of the State of Delaware on August 27, 1996.
FOURTH: No shares of Preferred Stock have been issued.
FIFTH: The Board of Directors of the Corporation has duly adopted
the following resolution amending the Certificate of Designation, by unanimous
consent dated as of December 19, 1996:
RESOLVED, that pursuant to authority expressly granted to the Board
of Directors by the Certificate of Incorporation, the definition of
"Book Value" contained in Section 2(f) as the Certificate of
Designation shall be amended to read as follows:
"Book Value" shall mean, as of December 31, 1995, (x) the combined
shareholder's equity of the Corporation and U.S. Intec, Inc. as of
that date determined in accordance with generally accepted
accounting principles and treating U.S. Intec Holdings as a
wholly-owned subsidiary of the Corporation after December 31, 1996,
but adding back (A) the charge to shareholder's equity relating to
the assumption by the Corporation of certain asbestos-related
liabilities of GAF Building Materials Corporation in connection with
the Corporation's formation, (B) the reduction in shareholder's
equity resulting from purchases of the capital stock of GAF
Corporation ("GAF") by persons who participated in promoting the
management buy-out of GAF in March 1989 (the "Acquisition")
(predecessor cost basis adjustment) and (C) any amounts reflecting
the liquidation preferences of any outstanding preferred stock of
the Corporation and excluding, to the extent occurring after
December 31, 1995, (1) non-recurring non-operating losses and
charges to stockholder's equity and non-recurring non-operating
gains and increases in stockholder's equity, including any further
charge relating to asbestos-related liabilities and any increase in
stockholder's equity attributable to a public offering of capital
stock of the Corporation, (2) net gains or losses in respect of
disposition of assets by the Corporation other than in the ordinary
course of business, and (3) any charges relating to amortization of
goodwill and other intangibles arising from the Acquisition divided
by (y) 1,000,000. Any adjustments to Book Value shall include the
tax effects, if any, associated therewith.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to
be executed this 24th day of December 1996.
BUILDING MATERIALS CORPORATION OF AMERICA
By: /s/Richard A. Weinberg
-------------------------------------
Richard A. Weinberg
Secretary
CERTIFICATE OF AMENDMENT
OF
BUILDING MATERIALS CORPORATION OF AMERICA
CERTIFICATE OF DESIGNATIONS OF
SERIES A CUMULATIVE REDEEMABLE CONVERTIBLE
PREFERRED STOCK, PAR VALUE $.01 PER SHARE
---------------------------------------------
Adopted in accordance with the provisions of
Section 242 of the General Corporation Law
of the State of Delaware
---------------------------------------------
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the "Corporation")
is Building Materials Corporation of America.
SECOND: The Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on January 31, 1994.
THIRD: The Certificate of Designations of Series A Cumulative Redeemable
Convertible Preferred Stock, par value $.01 per share (the "Certificate of
Designations") of the Corporation was filed with the Secretary of State of the
State of Delaware on August 27, 1996.
FOURTH: The defined term "Book Value" contained in this Section 2(f) of
the Certification of Designations has been amended by:
(i) deleting the first sentence thereof and replacing it with the
following new sentence:
"`Book Value' shall mean, as of any date of determination, (x) the sum of
(i) shareholder's equity of the Corporation (of, in the case of Book Value as of
December 31, 1995, the combined shareholder's equity of the Corporation and U.S.
Intec, Inc.) as of that date determined in accordance with generally accepted
accounting principles and treating U.S. Intec Holdings Inc. as a wholly-owned
subsidiary of the Corporation after December 31, 1995 and (ii) the cumulative
operating profit (or loss) of the Nashville, Tennessee fiberglass manufacturing
facility (the "Nashville Facility") of GAF Fiberglass Corporation ("GAF
Fiberglass") during the period commencing January 1, 1997 through the date of
determination, and adding back (A) the charge to shareholder's equity relating
to the assumption by the Corporation of certain asbestos-related liabilities of
GAF Building Materials Corporation in connection with the Corporation's
formation, (B) the reduction in shareholder's equity resulting from purchases of
the capital stock of GAF Corporation ("GAF") by persons who participated in
promoting the management buy-out of GAF in March 1989 (the "Acquisition")
(predecessor cost basis adjustment) and (C) any amounts reflecting the
liquidation preferences of any outstanding preferred stock of the Corporation
and excluding, to the extent occurring after December 31, 1995, (1) nonrecurring
non-operating losses and nonrecurring non-operating gains, including any further
charge relating to asbestos-related liabilities, (2) net gains or losses in
respect of dispositions of assets by the Corporation other than in the ordinary
course of business, and (3) any charges relating to amortization of goodwill and
other intangibles arising from the Acquisition divided by (y) in the case of
Book Value as of December 31, 1995, 1,000,000 and, in the case of all other
calculations of Book Value, the number of shares of Common Stock of the
Corporation outstanding on the date of determination."; and
(ii) by adding the following phrases after the phrase "exchange or
similar transaction," in the penultimate sentence thereof, "if GAF Fiberglass
becomes a direct or indirect subsidiary of the Corporation, if the Corporation
directly or indirectly acquires the Nashville Facility".
FIFTH: Written consent to the adoption of this amendment to the
Certificate of Designations has been given in accordance with Section 228 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by a duly authorized officer thereof on this 13th day of May 1997.
/s/ Richard A. Weinberg
-------------------------------------
Name: Richard A. Weinberg
Title: Senior Vice President
and Secretary
2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BUILDING MATERIALS CORPORATION OF AMERICA
(Pursuant to Section 242 of the
General Corporation Law of Delaware)
------------------------------------
Building Materials Corporation of America, a corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), does
hereby certify as follows:
1. The Certificate of Incorporation of the Corporation (the
"Certificate") was filed with the Secretary of State of Delaware on January 31,
1994. The Corporation was formerly known as GAF Newco Inc.
2. The first paragraph of Article FOURTH of the Certificate is
hereby amended to read in its entirety as follows:
"The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Million One Hundred
Fifty Thousand (1,150,000) shares, consisting of:
(a) One Million Fifty Thousand (1,050,000) shares of
Common Stock, par value $.001 (hereinafter referred to as
"Common Stock"); and
(b) One Hundred Thousand (100,000) shares of Preferred
Stock, par value $.01
(hereinafter referred to as "Preferred Stock")."
3. The foregoing Amendment to the Certificate was duly adopted in
accordance with Section 242 of the General Corporation Law of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by its duly authorized officers this 6th day of August,
1997.
By: /s/ Richard A. Weinberg
----------------------------------
Senior Vice President
& Secretary
Attest: /s/ Barry Kerschner
----------------------------------
Assistant Secretary
2
CERTIFICATE OF AMENDMENT
OF
BUILDING MATERIALS CORPORATION OF AMERICA
CERTIFICATE OF DESIGNATIONS OF
SERIES A CUMULATIVE REDEEMABLE CONVERTIBLE
PREFERRED STOCK, PAR VALUE $.01 PER SHARE
--------------------
Adopted in accordance with the provisions of
Section 242 of the General Corporation Law
of the State of Delaware
--------------------
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is Building Materials Corporation of America.
SECOND: The Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on January 31, 1994.
THIRD: The Certificate of Designations of Series A Cumulative
Redeemable Convertible Preferred Stock, par value $.01 per share (the
"Certificate of Designations") of the Corporation was filed with the Secretary
of State of the State of Delaware on August 27, 1996.
FOURTH: Section 1 of the Certificate of Designations is hereby
amended to read in its entirety as follows:
"1. Designation. The Preferred Stock created and authorized hereby
shall be designated as the "Series A Cumulative Redeemable
Convertible Preferred Stock" (the "Series A Preferred Stock"). The
number of shares of Series A Preferred Stock shall be 100,000. The
liquidation preference of the Series A Preferred Stock shall be $100
per share (the "Liquidation Preference")."
FIFTH: Written consent to the adoption of this amendment to the
Certificate of designations has been given in accordance with Section 228 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to
be signed by a duly authorized officer thereof on this 6th day of August, 1997.
/s/ Richard A. Weinberg
---------------------------------
Name: Richard A. Weinberg
Title: Senior Vice President
and Secretary
CERTIFICATE OF AMENDMENT
OF
BUILDING MATERIALS CORPORATION OF AMERICA
CERTIFICATE OF DESIGNATIONS OF
SERIES A CUMULATIVE REDEEMABLE CONVERTIBLE
PREFERRED STOCK, PAR VALUE $.01 PER SHARE
--------------------------------------------
Adopted in accordance with the provisions of
Section 242 of the General Corporation Law
of the State of Delaware
--------------------------------------------
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the "Corporation")
is Building Materials Corporation of America.
SECOND: The Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on January 31, 1994.
THIRD: The Certificate of Designations of Series A Cumulative Redeemable
Convertible Preferred Stock, par value $.01 per share (the "Certificate of
Designations") of the Corporation was filed with the Secretary of State of the
State of Delaware on August 27, 1996.
FOURTH: Section 2(a) of the Certificate of Designations has been amended to
delete the phrase "$2.00 per share" from the fourth and eighth lines thereof and
to replace it with the phrase "$1.50 per share".
FIFTH: The defined term "Book Value" contained in Section 2(f) of the
Certification of Designations has been amended by:
(i) deleting the first two sentences thereof and replacing them with the
following:
"'Book Value' shall mean, as of any date of determination, (x) the sum
of (i) the combined shareholder's equity of the Corporation and U.S. Intec, Inc.
as of December 31, 1995 determined in accordance with generally accepted
accounting principles, (ii) the cumulative consolidated net income or loss of
the Corporation (treating U.S. Intec Holdings Inc. as a wholly-owned subsidiary
of the Corporation for all periods) for the period January 1, 1996 through the
date of determination and (iii) the cumulative operating income (or loss), net
of an amount equal to imputed income taxes on such operating income calculated
at the same tax rate as is accrued as an expense by the Corporation in its
income statement for the applicable period, of GAF Fiberglass Corporation ("GAF
Fiberglass") for the period January 1, 1997 through the date of determination,
and adding back (A) the charge to shareholder's equity relating to the
assumption by the Corporation of certain asbestos-related liabilities of GAF
Building Materials Corporation in
connection with the Corporation's formation and (B) the reduction in
shareholder's equity resulting from purchases of the capital stock of GAF
Corporation ("GAF") by persons who participated in promoting the management
buy-out of GAF in March 1989 (the "Acquisition") (predecessor cost basis
adjustment), and excluding, to the extent occurring after December 31, 1995, (1)
nonrecurring non-operating losses and nonrecurring non-operating gains,
including any further charge relating to asbestos-related liabilities, (2) net
gains or losses in respect of dispositions of assets by the Corporation other
than in the ordinary course of business, (3) any dividends or distributions paid
to the holders of the Corporation's capital stock, (4) any capital contributions
made to the Corporation by its stockholders, (5) any amounts received by the
Corporation for shares of its capital stock (including from the exercise of
options or warrants to purchase capital stock or from the conversion into
capital stock of convertible debt or convertible preferred stock) and (6) any
charges relating to amortization of goodwill and other intangibles arising from
the Acquisition divided by (y) 1,000,010. There shall be deducted from Book
Value an amount equal to a 15% per annum charge on the aggregate capital
contributions made to the Corporation by its stockholders during the period
commencing October 1, 1997 and ending with the date of determination (the
"Period"), amounts received by the Corporation during the Period for shares of
its capital stock and, to the extent not actually charged to the Corporation, on
the outstanding principal amount of loans and other advances made to the
Corporation by affiliates (excluding subsidiaries of the Corporation) during the
Period. There shall be added to Book Value a 15% per annum credit on the
aggregate dividends or distributions made by the Corporation to its stockholders
during the Period and, to the extent not actually charged to the borrower, on
the outstanding principal amount of loans and other advances made by the
Corporation to affiliates (excluding subsidiaries of the Corporation) during the
Period. Any adjustments to Book Value (including the 15% charge and credit
referred to in the preceding two sentences) shall include the tax effects, if
any, associated therewith."; and
(ii) by adding the following at the end thereof:
"The 'Nashville Facility' shall mean the Nashville, Tennessee manufacturing
facility of GAF Fiberglass."
FIFTH: Written consent to the adoption of this amendment to the Certificate
of Designations has been given in accordance with Section 228 of the Delaware
General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by a duly authorized officer thereof on this 9th day of March 1998.
BUILDING MATERIALS
CORPORATION OF AMERICA
By: /s/ RICHARD A. WEINBERG
---------------------------------
Name: Richard A. Weinberg
Title: Senior Vice President
and Secretary
2