AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
BUILDERS FIRSTSOURCE, INC.
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of
BUILDERS FIRSTSOURCE, INC. (the "Corporation"), a corporation organized and
existing under the General
Corporation Law of the State of
"DGCL"), does hereby certify as follows:
1. The name of the Corporation is Builders FirstSource, Inc. The
Corporation was originally incorporated under the name BSL Holdings, Inc. The
original certificate of incorporation of the Corporation was filed with the
office of the Secretary of State of
the State of
2. This Amended and Restated Certificate of Incorporation was duly adopted
by the Board of Directors of the Corporation (the "Board of Directors"), and by
the stockholders of the Corporation in accordance with Sections 228, 242 and 245
of the DGCL.
3. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the certificate of incorporation of the
Corporation, as heretofore amended or supplemented.
4. The text of the Certificate of Incorporation is restated in its entirety
FIRST: The name of the Corporation is Builders FirstSource, Inc.
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation in the
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the DGCL as set forth
in Title 8 of the
FOURTH: (1) Authorized Capital Stock. The total number of shares of
stock that the Corporation shall have authority to issue is 210,000,000 of which
the Corporation shall have authority to issue 200,000,000 shares of Common
Stock, each having a par value of $0.01 per share, and 10,000,000 shares of
Preferred Stock, each having a par value of $0.01 per share.
(2) Common Stock. The powers, preferences and rights, and the
qualifications, limitations and restrictions, of the Common Stock are as
(a) No Cumulative Voting. The holders of shares of Common Stock
shall not have cumulative voting rights.
(b) Dividends; Stock Splits. Subject to the rights of the holders
of Preferred Stock, and subject to any other provisions of this
Amended and Restated Certificate of Incorporation, as it may be
amended from time to time, holders of shares of Common Stock shall be
entitled to receive such dividends and other distributions in cash,
stock, or property of the Corporation when, as, and if declared
thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor.
(c) Liquidation, Dissolution, etc. In the event of any
liquidation, dissolution, or winding up (either voluntary or
involuntary) of the Corporation, the holders of shares of Common Stock
shall be entitled to receive the assets and funds of the Corporation
available for distribution after payments to creditors and to the
holders of any Preferred Stock of the Corporation that may at the time
be outstanding, in proportion to the number of shares held by them.
(d) No Preemptive or Subscription Rights. No holder of shares of
Common Stock shall be entitled to preemptive or subscription rights.
(3) Preferred Stock. The Board of Directors is expressly authorized to
provide for the issuance of all or any shares of the Preferred Stock in one or
more classes or series and to fix for each such class or series such voting
powers, full or
limited, or no voting powers, and such designations, preferences and relative,
participating, optional, or other special rights, and such qualifications,
limitations, or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for the
issuance of such class or series and as may be permitted by the DGCL, including,
without limitation, the authority to provide that any such class or series may
be (i) subject to redemption at such time or times and at such price or prices;
(ii) entitled to receive dividends (which may be cumulative or non-cumulative)
at such rates, on such conditions, and at such times, and payable in preference
to, or in such relation to, the dividends payable on any other class or classes
or any other series; (iii) entitled to such rights upon the dissolution of, or
upon any distribution of the assets of, the Corporation; or (iv) convertible
into, or exchangeable for, shares of any other class or classes of stock, or of
any other series of the same or any other class or classes of stock, of the
Corporation at such price or prices or at such rates of exchange and with such
adjustments; all as may be stated in such resolution or resolutions.
(4) Power to Sell and Purchase Shares. Subject to the requirements of
applicable law, the Corporation shall have the power to issue and sell all or
any part of any shares of any class of stock herein or hereafter authorized to
such persons, and for such consideration, as the Board of Directors shall from
time to time, in its discretion, determine, whether or not greater consideration
could be received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law. Subject to the requirements of
applicable law, the Corporation shall have the power to purchase any shares of
any class of stock herein or hereafter authorized from such persons, and for
such consideration, as the Board of Directors shall from time to time, in its
discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise
permitted by law.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation, and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stock-holders
to make, alter, amend, change, add to, or repeal the By-Laws of the
(3) The Board of Directors shall consist of not less than 3 nor more
than 13 members, the exact number of which shall be fixed from time to time
by resolution adopted by the affirmative vote of a majority of the Board of
Directors. Election of directors need not be by written ballot unless the
By-Laws so provide.
(4) The directors shall be divided into three classes, designated
Class I, Class II, and Class III. Each class shall consist, as nearly as
may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. The initial division of the Board of
Directors into classes shall be made by the decision of the affirmative
vote of a majority of the Board of Directors. The term of the initial Class
I directors shall terminate on the date of the 2006 Annual Meeting; the
term of the initial Class II directors shall terminate on the date of the
2007 Annual Meeting; and the term of the initial Class III directors shall
terminate on the date of the 2008 Annual Meeting. At each Annual Meeting of
Stockholders beginning in 2006, successors to the class of directors whose
term expires at that Annual Meeting shall be elected for a three-year term.
If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of
that class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director.
(5) A director shall hold office until the annual meeting for the year
in which his or her term expires and until his or her successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification, or removal from office. Any director may
resign at any time in accordance with the By-Laws.
(6) Subject to the terms of any one or more classes or series of
Preferred Stock, any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled only by a majority of the
Board of Directors then in office, provided that a quorum is present, and
any other vacancy occurring on the Board of Directors may be filled only by
a majority of the Board of Directors then in office, even if less than a
quorum, or by a sole remaining director. Any director of any class elected
to fill a vacancy resulting from an increase in the number of directors of
such class shall hold office for a term that shall coincide with the
remaining term of that class. Any director elected to fill a vacancy not
resulting from an increase in
the number of directors shall have the same remaining term as that of his
or her predecessor. Subject to the rights, if any, of the holders of shares
of Preferred Stock then outstanding, any or all of the directors of the
Corporation may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least a majority of the
voting power of the Corporation's then outstanding capital stock entitled
to vote generally in the election of directors. Notwithstanding the
foregoing, whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting
separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of
vacancies, and other features of such directorships shall be governed by
the terms of this Amended and Restated Certificate of Incorporation
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Article FIFTH unless otherwise expressly provided
by the terms of such class or series of Preferred Stock.
(7) No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director; provided, however, that to the extent required by the provisions
of Section 102(b)(7) of the DGCL or any successor statute, or any other
laws of the State of
the liability of a director (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) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the DGCL is amended after the date of this Certificate to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitation
on personal liability provided in this Certificate, shall be limited to the
fullest extent permitted by the DGCL, as so amended. Any repeal or
modification of this Clause (7) of Article FIFTH shall not adversely affect
any limitation on the personal liability or any right or protection of a
director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such
repeal or modification.
(8) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of the DGCL, this Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
that would have been valid if such By-Laws had not been adopted.
SIXTH: Meetings of stockholders may be held within or without the
be kept (subject to any provision contained in the DGCL) outside the State of
Board of Directors or in the By-Laws of the Corporation.
SEVENTH: Unless otherwise required by law, Special Meetings of
Stockholders, for any purpose or purposes, may be called by either the Chairman
of the Board of Directors, if there be one, or the Chief Executive Officer, if
there be one, and shall be called by any officer at the request in writing of
(i) the Board of Directors, or (ii) a committee of the Board of Directors that
has been duly designated by the Board of Directors and whose powers and
authority include the power to call such meetings. The ability of the
stockholders to call a Special Meeting of Stockholders is hereby specifically
EIGHTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called Annual or
Special Meeting of Stockholders of the Corporation, and the ability of the
stockholders to consent in writing without a meeting to the taking of any action
is hereby specifically denied.
NINTH: The Corporation shall not be governed by the provisions of
Section 203 of the DGCL.
TENTH: The Corporation shall indemnify its directors and officers to
the fullest extent authorized or permitted by applicable law, as now or
hereafter in effect, and such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the Corporation and shall
inure to the benefit of his or her heirs, executors, and personal and legal
representatives; provided, however, that, except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors, or personal or legal
representatives) in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors. The right to indemnification conferred
by this Article TENTH shall include the right to be paid by the Corporation the
expenses incurred in defending or otherwise participating in any proceeding in
advance of its final disposition upon receipt by the Corporation of an
undertaking by or on behalf of the director or officer receiving advancement to
repay the amount advanced if it shall ultimately be determined that such person
is not entitled to be indemnified by the Corporation under this Article TENTH.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Article TENTH to directors and officers of the Corporation.
The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right that
any person may have or hereafter acquire under this Certificate of
Incorporation, the By-Laws of the Corporation, any statute, agreement, vote of
stockholders or disinterested directors, pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction, or otherwise.
Any repeal or modification of this Article TENTH by the stockholders
of the Corporation shall not adversely affect any rights to indemnification and
to the advancement of expenses of a director, officer, employee, or agent of the
Corporation existing at the time of such repeal or modification with respect to
any acts or omissions occurring prior to such repeal or modification.
ELEVENTH: Notwithstanding anything contained in this Certificate of
Incorporation or the By-Laws to the contrary, any provision in the By-Laws that
provides for more than a majority vote for any action may only be amended or
repealed by a supermajority vote equal to the supermajority vote called for in
TWELFTH: The Corporation reserves the right to amend, alter, change,
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation; provided, however,
that, notwithstanding any other provision of this Amended and Restated
Certificate of Incorporation (and in addition to any other vote that may be
required by law), the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66.67%) of the voting power of the shares entitled to vote
at an election of directors shall be
required to amend, alter, change, or repeal, or to adopt any provision as part
of this Amended and Restated Certificate of Incorporation inconsistent with the
purpose and intent of Articles FIFTH and TENTH of this Amended and Restated
Certificate of Incorporation or this Article TWELFTH.
THIRTEENTH: If any provision in this Amended and Restated Certificate
of Incorporation is determined to be invalid, void, illegal, or unenforceable,
the remaining provisions of this Amended and Restated Certificate of
Incorporation shall continue to be valid and enforceable and shall in no way be
affected, impaired, or invalidated.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be duly executed on its behalf this ___
day of June, 2005.
BUILDERS FIRSTSOURCE, INC.
[As Filed: 2005-06-25]