As filed with the Securities and Exchange Commission on August 4, 1998
Registration No. 333-_____
- -===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BUILDING MATERIALS CORPORATION OF AMERICA
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 22-3276290
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1361 ALPS ROAD
WAYNE, NEW JERSEY 07470
973-628-3000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
BMCA PREFERRED STOCK OPTION PLAN
(Full Title of Plan)
RICHARD A. WEINBERG, ESQ.
BUILDING MATERIALS CORPORATION OF AMERICA
1361 ALPS ROAD
WAYNE, NEW JERSEY 07470
(973) 628-3520
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
STEPHEN E. JACOBS, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
TELEPHONE: (212) 310-8000
FACSIMILE: (212) 310-8007
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Securities to be Registered Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Offering Price Per Aggregate Offering Registration Fee
Share(2) Price
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series A Cumulative Redeemable 100,000(1) $100 $10,000,000 $2,950
Convertible Preferred Stock, par value
$.01 per share
- -----------------------------------------------------------------------------------------------------------------------------------
Class A Common Stock, par value $.01 per 50,000(1) N/A(2) N/A(2) N/A(2)
share (3)
===================================================================================================================================
</TABLE>
NYFS04...:\27\61127\0001\1759\FRM6308N.20D
<PAGE>
================================================================================
(1) This Registration Statement also covers any additional preferred shares
and common shares which become issuable by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected
without receipt of consideration that results in an increase in the number
of outstanding shares and common shares.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act of 1933. In accordance with
Rule 457(i), no fee is payable with respect to the Class A Common Stock.
(3) The number of shares of Class A Common Stock issuable upon the conversion
of the Preferred Stock will fluctuate as the book value of the Preferred
Stock fluctuates.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement and the statement of availability of information required
by Item 2 of Form S-8 and information relating to the BMCA Preferred Stock
Option Plan and the other information required by Item 2 of Form S-8 have
previously been, or will be sent or given to participants in the BMCA Preferred
Stock Option Plan as specified by Rule 428(b)(1) of the Securities Act of 1933,
as amended (the "Securities Act"). Such documents are not required to be and are
not filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Commission by
Building Materials Corporation of America, a Delaware corporation (the
"Company"), and are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997; and
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 29, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all the securities offered hereby have been sold
or which deregisters all such securities then remaining unsold shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is deemed to be incorporated by
reference herein modifies or supersedes such earlier statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
1
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
As of the date of this Registration Statement, the authorized
capital stock of the Company consists of one million five hundred thousand
(1,500,000) shares of all classes of stock: one million four hundred thousand
(1,400,000) of which are designated as common stock, par value $.01 per share
(the "Common Stock"), and one hundred thousand (100,000) shares of which are
designated as preferred stock, par value $.01 per share (the "Preferred Stock").
The Common Stock is divided into two classes: one million three hundred thousand
(1,300,000) shares of which are designated Class A Common Stock (the "Class A
Common Stock") and 100,000 shares of which are designated Class B Common Stock
(the "Class B Common Stock"). As of the date hereof 1,015,010 shares of Class A
Common Stock and 15,000 shares of Class B Common Stock were outstanding and no
shares of Preferred Stock were outstanding. The following description is a
summary and is subject to and qualified in its entirety by reference to the
provisions of the Certificate of Incorporation, as amended, filed as Exhibit 4.1
hereto.
COMMON STOCK
VOTING RIGHTS.
Except as required by applicable law, each share of Class A Common
Stock and Class B Common Stock entitles the holder to one vote on each matter
submitted to a vote of the Company's stockholders. The authorized amount of
shares of the Class A Common Stock and the Class B Common Stock may be increased
or decreased from time to time by the affirmative vote of the holders of a
majority of the Class A Common Stock and holders of Class B Common Stock,
respectively, entitled to vote thereon. Except as required by applicable law,
holders of Class A Common Stock and holders of Class B Common Stock are not
entitled to vote as a separate class.
DIVIDENDS.
After requirements have been met with respect to payment of
preferential dividends on Preferred Stock, the setting aside of sums as sinking
funds or for redemption or purchase accounts, if any, holders of Class A Common
Stock and holders of Class B Common Stock are entitled to receive such dividends
as may be declared from time to time by the Board of Directors.
OTHER PROVISIONS.
Holders of Class A Common Stock and holders of Class B Common Stock
are not entitled to preemptive rights.
PREFERRED STOCK
DESIGNATION.
The Company has designated 100,000 shares of Preferred Stock as
Series A Cumulative Redeemable Preferred Stock (the "Series A Preferred Stock").
2
<PAGE>
DIVIDENDS.
Holders of Series A Preferred Stock are entitled to receive when,
as and if declared by the Board of Directors out of funds legally available
therefor, cumulative cash dividend payments of $1.50 per share for each
quarterly dividend period that such Series A Preferred Stock is outstanding. If
a share of Series A Preferred Stock is not outstanding for a full quarterly
dividend period, the dividend payment in respect of such partial quarterly
dividend period shall be equal to $1.50 multiplied by a fraction, the numerator
of which is the number of days such share was outstanding (but not more than 30
days for any calendar month occurring in such portion), and the denominator of
which is 90. Dividends, if and to the extent declared, are payable quarterly in
arrears on January 1, April 1, July 1 and October 1 of each year. Dividends
accrue on each share of Series A Preferred Stock from its date of issue and are
fully cumulative. If dividends are not paid in full or not declared in full on
the Series A Preferred Stock and on any stock ranking on a parity with the
Series A Preferred Stock as to dividend payments, all dividends declared upon
the Preferred Stock and any other such stock will be declared pro rata so that
the amount of dividends declared per share on the Series A Preferred Stock and
such other stock will bear to each other the same ratio that accumulated, unpaid
dividends per share on the Series A Preferred Stock and such other stock will
bear to each other. Except as provided in the preceding sentence, until full
cumulative dividends on the Series A Preferred Stock have been paid or declared
in full and sums set aside therefor, no dividends shall be declared or paid or
set aside on any capital stock of the Company ranking on a parity with or junior
to the Series A Preferred Stock, and no stock ranking junior to or on a parity
with the Series A Preferred Stock may be purchased, redeemed or otherwise
acquired by the Company (except in exchange for shares of the Company's stock
ranking junior to the Series A Preferred Stock as to payment of dividends and as
to distribution of assets upon liquidation, dissolution or winding up of the
Company or options, rights or warrants to acquire such shares); provided further
that the Company may purchase outstanding shares of Common Stock and Series A
Preferred Stock from the holders thereof in accordance with the terms of option
agreements between the Company and employees of the Company or U. S. Intec, Inc.
relating to the Series A Preferred Stock.
REDEMPTION.
Series A Preferred Stock is redeemable at any time, in whole or in
part, out of funds legally available therefor upon at least 30 days but not more
than 60 days prior written notice at a price equal to the liquidation preference
($100 per share) plus accumulated but unpaid dividends to the date of
redemption. If fewer than all Series A Preferred Stock are redeemed, the Board
of Directors shall determine, in its sole discretion, which shares are to be
redeemed. The Board of Directors is not required to redeem the Series A
Preferred Stock on a pro rata basis.
VOTING RIGHTS.
Holders of Series A Preferred Stock are entitled to one vote for
each share of Preferred Stock held on all matters to be voted upon by the
shareholders of the Company. Holders of Preferred Stock are not entitled to vote
as a separate class, except as required by law.
CONVERSION.
3
<PAGE>
Holders of Series A Preferred Stock have the right, exercisable at
any time, at their option to convert all or any portion of the Series A
Preferred Stock into shares of Class A Common Stock at a conversion ratio equal
to 100 divided by 115% of the Book Value (as defined in the Certificate of
Designations of the Company relating to the Series A Preferred Stock) of the
Series A Preferred Stock.
OTHER PROVISIONS.
Holders of Series A Preferred Stock are not entitled to preemptive
rights.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Mr. Richard A. Weinberg is rendering an opinion on certain legal
matters with respect to the validity of the securities registered in this
Registration Statement. Mr. Weinberg is Executive Vice President, Secretary and
General Counsel of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Subsection (b)(7) of Section
102 of the Delaware General Corporation Law (the "DGCL") enables a corporation
in its original certificate of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director to the corporation or
its stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transactions from which a director derived an improper personal
benefit. Article Seventh of the Company's Certificate of Incorporation has
eliminated the personal liability of directors to the fullest extent permitted
by Subsection (b)(7) of Section 102 of the DGCL.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding provided that such
director or officer acted in good faith in a manner reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding, provided further that such director or
officer has no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any director or officer, or former director or officer, who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or 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 such
4
<PAGE>
person is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in, or not opposed to, the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided further that such director or officer has no reasonable cause to
believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any director or officer, or former director or officer, 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 such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer 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 may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification and advancement of expenses provided
for, by, or granted pursuant to, Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and empowers
the corporation to purchase and maintain insurance on behalf of any person who
is or was a director or officer of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture trust or other enterprise against any
liability asserted against him or incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liabilities under Section 145.
Article VIII of the Company's By-Laws states that the corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or suit by reason of the
fact that he is or was a director, officer or employee of the corporation, or is
or was serving at the request of the corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
enterprise against judgments, fines and amounts paid in settlement actually
incurred by him in connection with such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
5
<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 - Certificate of Incorporation of the Company, as amended.
4.2 - BMCA Preferred Stock Option Plan.
5 - Opinion of Richard A. Weinberg, Esq.
23.1 - Consent of Richard A. Weinberg, Esq. (included in Exhibit 5)
23.2 - Consent of Arthur Andersen LLP
ITEM 9. UNDERTAKINGS.
(c) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
6
<PAGE>
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(d) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Wayne, New Jersey, on this 3rd day of August 1998.
BUILDING MATERIALS CORPORATION OF
AMERICA
By: /s/ James P. Rogers
------------------------------------
Name: James P. Rogers
Title:Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE Title Date
- --------- ----- ----
/s/ Samuel J. Heyman
- ----------------------------- Chairman and Chief August 3, 1998
Samuel J. Heyman Executive Officer
and Director (Principal
Executive Officer
/s/ Sunil Kumar
- ----------------------------- President and Chief August 3, 1998
Sunil Kumar Operating Officer and
Director
/s/ James P. Rogers
- ----------------------------- Executive Vice President August 3, 1998
James P. Rogers and Director
/s/ William C. Lang
- ----------------------------- Senior Vice President and August 3, 1998
William C. Lang Chief Financial Officer
(Principal Financial and
Accounting Officer)
8
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 - Certificate of Incorporation of the Company, as amended.
4.2 - BMCA Preferred Stock Option Plan.
5 - Opinion of Richard A. Weinberg, Esq.
23.1 - Consent of Richard A. Weinberg, Esq. (included in Exhibit 5)
23.2 - Consent of Arthur Andersen LLP
9
EXHIBIT 4.1
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
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<PAGE>
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
<PAGE>
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
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<PAGE>
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.
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<PAGE>
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
<PAGE>
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 (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. Upon the filing (the "Effective Time") of this Amendment to the
Certificate, pursuant to the Delaware General Corporation Law, each share of the
Corporation's common stock, par value $.001 per share, issued and outstanding
immediately prior to the Effective Time (the "Old Common Stock"), shall be
reclassified as and changed into one validly issued, fully paid and
non-assessable share of Class A Common Stock, par value $.01 per share ("Class A
Common Stock"), without any action by the holder thereof. At the Effective Time,
each share certificate that theretofore represented shares of Old Common Stock
shall
NYFS01...:\01\47201\0035\1909\COI7178K.380
<PAGE>
thereafter represent the reclassified shares of Class A Common Stock.
3. 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, Five Hundred
Thousand (1,500,000) shares, consisting of:
(a) One Million, Four Hundred Thousand (1,400,000) shares of common
stock, par value $.01 per share (hereinafter referred to as "Common Stock"), and
which shares shall be divided into two classes, consisting of One Million, Three
Hundred Thousand (1,300,000) shares of Class A Common Stock (hereinafter
referred to as "Class A Common Stock") and One Hundred Thousand (100,000) shares
of Class B Common Stock (hereinafter referred to as "Class B Common Stock"); and
(b) One Hundred Thousand (100,000) shares of Preferred Stock, par
value $.01 per share (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,
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<PAGE>
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 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
3
<PAGE>
right, voting as a series by itself or together with the 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 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 the Article FOURTH), shall be entitled to receive, ratably in
proportion to the number of shares of Common Stock held by them (and not ratably
in proportion to the number of shares of each class of such Common Stock), all
the remaining assets of the Corporation, tangible and intangible, of whatever
kind, as are available for distribution to stockholders.
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<PAGE>
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 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 pursuant to a
resolution of the Board of Directors to such persons, firms, corporations or
associates, 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.
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<PAGE>
3. Subject to the provisions of subparagraph 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 of either class 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 or of
either class of Common Stock or of Preferred Stock, without a class or series
vote, may 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 by the
affirmative vote of the Corporation's sole stockholder.
6
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by its duly authorized officers this fifteenth day of
July, 1998.
BUILDING MATERIALS
CORPORATION OF AMERICA
By: /s/ Richard A. Weinberg
---------------------------------
Richard A. Weinberg
Executive Vice President,
Secretary and General Counsel
7
<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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
<PAGE>
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
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<PAGE>
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
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<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
<PAGE>
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")."
<PAGE>
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
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/10/1998
981090837 - 2374169
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
NYFS01...:\01\47201\0035\2011\CRT7308T.510
<PAGE>
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
<PAGE>
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.
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: The defined term "Common Stock" in Section 2(f) of the
Certificate of Designation shall be amended and restated to read in its entirety
as follows:
"'Common Stock' means the Corporation's Class A common stock, par
value $.01 per share, and any securities or property into which the Common Stock
may be converted or exchanged pursuant to a recapitalization, stock split,
combination, reorganization, merger, exchange or similar transaction."
FIFTH: Written consent to the adoption of this amendment to the
Certificate of Designations has been given in accordance with Section 228 of the
General Corporation Law of the State of Delaware.
NYFS01...:\01\47201\0035\1909\CRT6268S.20C
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate to
be executed this fifteenth day of July, 1998.
BUILDING MATERIALS
CORPORATION OF AMERICA
By /s/ Richard A. Weinberg
------------------------------
Richard A. Weinberg
Executive Vice President,
Secretary and General
Counsel
2
Exhibit 4.2
BUILDING MATERIALS CORPORATION OF AMERICA
Preferred Stock Option Plan
---------------------------
Options: Options (the "Options") to purchase shares of
Series A Cumulative Redeemable Convertible
Preferred Stock, $0.01 par value (the "Preferred
Stock"), of Building Materials Corporation of
America (the "Company").
Exercise Price: The exercise price of each Option will be $100
per share or such other amount as may be
determined by the Board of Directors of the
Company.
Terms of Preferred
Stock: The voting powers and the preferences and
relative, participating, optional and other
special rights of the Preferred Stock, and the
qualifications, limitations or restrictions
thereof, shall be as set forth in the Certificate
of Designations of the Preferred Stock, as the
same may be amended from time to time.
Vesting: In each case to the extent the holder is employed
by the Company on such dates, each Option will
vest as follows:
NYFS01...:\01\47201\0035\2011\PLN8038P.150
<PAGE>
Annual Anniversary Percent of Grant
Date of Grant Vested
------------- ------
1 20
2 40
3 60
4 80
5 100
If a holder's employment with the Company should
terminate as a direct result of a divestiture
(whether because such holder is employed by the
business which is sold, such holder's position is
eliminated as a result of the divestiture or
otherwise), or such holder's employment with the
Company should be terminated by the Company other
than for cause after a change of control of the
Company, the unvested portion of such holder's
Options shall become vested on the date of
termination.
Term of Option: An Option will terminate on the earlier of (a) 30
days after the termination of the holder's
employment with the Company for any reason
other than death or disability, (b) one year after
the termination of the holder's employment with
the Company as a result of death or disability and
(c) nine years from the date of the grant.
In the event the Company or its parent engages in
a public offering of common stock of the Company,
Options shall be replaced by options granted under
a Company stock option plan which is appropriate,
in the judgment of the Board of Directors of the
Company, for a public company. In such event, the
holder shall also receive cash on each vesting
date based upon the amount by which Book Value (as
defined in the option
2
<PAGE>
agreements relating to the Options (the "Option
Agreements")) of the shares of common stock
exceeds the exercise price of the Options relating
thereto, as more fully described in the Option
Agreements.
Exercise: An Option shall not be exercisable after its
expiration. Prior thereto, an Option may be
exercised in whole or in part at any time after it
is vested.
Puts and Calls: The shares of common stock received upon
conversion of the Preferred Stock acquired upon
the exercise of an Option shall be subject to puts
and calls as provided in the Option Agreement
relating thereto.
Restrictions on Transfer: Neither the Option nor the shares of common stock
received upon conversion of the Preferred Stock
acquired upon exercise of an Option are
transferable, except as provided in the Option
Agreement relating thereto.
The foregoing is merely a summary and is qualified by reference to the
provisions of the Option Agreement.
3
Exhibit 5
Building Materials Corporation of America
1361 Alps Road Wayne, New Jersey 07470
(973) 628-3520
Fax: (973) 628-3196
August 3, 1998
Building Materials Corporation of America
1361 Alps Road
Wayne, New Jersey 07470
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of Building Materials
Corporation of America, a Delaware corporation (the "Company"), and as such I
(and attorneys on my staff acting under my supervision) have acted as counsel to
the Company in connection with the preparation and filing of the Registration
Statement on Form S-8 under the Securities Act of 1933 (the "Registration
Statement") relating to the Company's Preferred Stock Option Plan.
In so acting, I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such corporate records, agreements, documents
and other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made such
inquiries of such officers and representatives, as I have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
as originals, the conformity to original documents of documents submitted as
certified, conformed or photostatic copies and the authenticity of the originals
of such latter documents. As to all questions of fact material to this opinion
that have not been independently established, I have relied upon certificates or
comparable documents of officers and representatives of the Company.
NYFS01...:\01\47201\0035\2011\OPN7308T.090
<PAGE>
Based on the foregoing, and subject to the qualifications stated herein, I
am of the opinion that the securities being registered pursuant to the
Registration Statement have been duly authorized and, when issued and sold as
contemplated by the Registration Statement and the BMCA Preferred Stock Option
Plan, will be validly issued, fully paid and nonassessable.
The opinion herein is limited to the corporate laws of the State of
Delaware and I express no opinion as to the effect on the matters covered by
this opinion of the laws of any other jurisdiction.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Richard A. Weinberg
Richard A. Weinberg
2
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 20, 1998
included in Building Materials Corporation of America's Form 10-K for the year
ended December 31, 1997.
ARTHUR ANDERSEN LLP
Roseland, New Jersey
August 3, 1998
NYFS01...:\01\47701\0037\1324\RID8038R.580
