RESTATED

 

                             CERTIFICATE OF INCORPORATION

 

                                          OF

 

                        BUILDING MATERIALS HOLDING CORPORATION

 

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

 

    Building Materials Holding Corporation, a corporation organized under the

laws of the State of Delaware, hereby certifies as follows:

 

    1.  The original certificate of incorporation of Building Materials Holding

Corporation was filed with the Secretary of State of Delaware on April 14, 1997.

 

    2.  This Restated Certificate of Incorporation amends and restates the

provisions of the Certificate of Incorporation of Building Materials Holding

Corporation and has been duly adopted pursuant to Sections 242 and 245 of

the General Corporation Law of the State of Delaware.

 

    3.  The text of the Certificate of Incorporation of Building Materials

Holding Corporation is hereby amended and restated to read in its entirety as

follows:

 

    FIRST:  The name of the corporation (hereinafter called the "Corporation")

is Building Materials Holding Corporation.

 

    SECOND:  The address, including street, number, city, and county, of

registered office of the Corporation in the State of Delaware is 1013 Centre

Road Street, in the City of Wilmington County of New Castle; and the name of

the registered agent of the Corporation in the State of Delaware at such

address is Prentice-Hall Corporation System, Inc.

 

    THIRD:  The purpose of the Corporation is to engage in any lawful or

activity for which corporations may be organized under the General Corporation

Law of the State of Delaware.

 

    FOURTH:  The total number of shares of capital stock which the Corporation

is authorized to issue is Twenty-Two Million.  Two Million (2,000,000) shares

shall be Preferred Stock, each having a par value of one-tenth cent ($.001).

Twenty Million (20,000,000) shares shall be Common Stock, each having a par

value of one-tenth cent ($.001).  The Preferred Stock may be issued from time to

time in one or more series.  The Board of Directors is authorized, by filing a

certificate pursuant to the applicable law of the State of Delaware (a

"Preferred Stock Designation"), to establish from time to time the number of

shares to be included in each such series, and to fix the designation, powers,

preferences and rights of the shares of each such series

 

 

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and the qualifications, limitations or restrictions thereof, including but

not limited to the fixing or alteration of the dividend rights, dividend rate,

conversion rights, voting rights, rights and terms of redemption (including

sinking fund provisions), the redemption price or prices, and the liquidation

preferences of any wholly unissued series of Preferred Stock; and to increase or

decrease the number of shares of any series subsequent to the issue of shares of

that series, but not below the number of shares of such series then outstanding.

In case the number of shares of any series shall be so decreased, the shares

constituting such decrease shall resume the status which they had prior to the

adoption of the resolution originally fixing the number of shares of such

series.

 

    No share or shares of any class or series of Preferred Stock acquired by

the corporation by reason of redemption, purchase, conversion or otherwise shall

be reissued as part of such class or series, and the Board of Directors is

authorized, pursuant to Section 243 of the Delaware General Corporation Law, to

retire any such share or shares.  The retirement of any such share or shares

shall not reduce the total authorized number of shares of Preferred Stock.

 

    The first series of Preferred Stock shall consist of Forty Thousand One

Hundred Fifty (40,150) shares designated Class A Senior Preferred Stock (the

"Class A Preferred Stock").  The second series of Preferred Stock shall consist

of Fifty Thousand (50,000) shares designated Class B Senior Preferred Stock (the

"Class B Preferred Stock").  The third series of Preferred Stock shall consist

of One Hundred Fifty Thousand (150,000) shares designated Class C Junior

Participating Cumulative Preferred Stock (the "Series C Preferred Stock").

 

    The rights, preferences, privileges and restrictions granted to or imposed

upon the Common Stock and the Preferred Stock are as follows:

 

    L.   DIVIDENDS AND DISTRIBUTIONS.

 

         (a)  COMMON STOCK.  No distribution (as defined below) shall be made

    to the holders of Common Stock so long as any shares of Preferred Stock are

    outstanding or any accrued dividends thereon remain unpaid.  As used in

    this Section  1(a), "distribution" means the transfer of cash, obligations

    of the Corporation or property without consideration or at less than fair

    market value (but in such event only to the extent of the shortfall),

    whether by way of dividend or otherwise (except a dividend in shares of the

    Corporation) or the purchase or redemption of shares of the Corporation for

    cash, obligations of the Corporation or property, including any such

    transfer, purchase or redemption by a subsidiary of the Corporation, but

    excluding repurchase of shares of employees of the Corporation or of any

    affiliate thereof upon termination of their employment with the Corporation

    and all affiliates thereof or otherwise pursuant to agreements providing

    for the right of said repurchase between the Corporation and such persons

    at a price not higher than the original purchase price of such stock or the

    then current book value.

 

         (b)  CLASS A PREFERRED STOCK.  No dividends shall accrue or be payable

    on the Class A Preferred Stock prior to January l, 1993.  The holders of

    any outstanding shares of Class A Preferred Stock shall be entitled to

    receive, and there shall accrue and become

 

 

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    payable, on December 31 in each calendar year commencing with 1993 in which

    such shares are outstanding at June 30 of such year, an annual dividend in

    an amount equal to $6.00 per share and no more, payable out of funds

    legally available therefor, at the election of the Board of Directors,

    either in cash or in shares of Class A Preferred Stock having an aggregate

    liquidation preference equal to the amount of the dividend.  Any dividend

    on Class A Preferred Stock not paid (in a form permitted or required by

    this paragraph(b)) shall cumulate, whether or not funds were legally

    available therefor.

 

         (c)  CLASS B PREFERRED STOCK.  No dividends will accrue or be payable

    on the Class B Preferred Stock prior to December 31, 1993.  If in any year

    thereafter the Corporation for any reason does not redeem all or any

    portion of the Class B Preferred Stock pursuant to Section 3(a)(iv), a

    dividend shall accrue and be payable on the Series B Preferred Stock in

    accordance with the terms of this paragraph 1(c).  For purposes of

    calculating the amount of the dividend payable on the Class B Preferred

    Stock, if any, the Corporation shall maintain a record of the total number

    of shares which it has not redeemed pursuant to Section 3(a)(iv) and which

    it has not subsequently redeemed pursuant to Section 3(a)(i)(B)

    (collectively the "Deferred Redemption Shares").  The dividend shall accrue

    and be payable quarterly on May 2, August 2, November 2 and February 2 of

    each year commencing on May 2, 1994 (each a "Dividend Date") out of funds

    legally available therefor to the holder of record of the Class B Preferred

    Stock on each such Dividend Date.  The amount of the dividend per share, if

    any, for a particular Dividend Date shall be equal to (x) the product of

    (i) the number of Deferred Redemption Shares on such Dividend Date and

    (ii) $3.75, divided by (y) the number of shares of Class B Preferred Stock

    outstanding on such Dividend Date.  Any dividends on Class B Preferred

    Stock not paid (in a form permitted or required by this paragraph (c))

    shall cumulate, whether or not funds were legally available therefor.

 

         (d)  (i) SERIES C PREFERRED STOCK.  The holders of shares of Series C

    Preferred Stock, in preference to the holders of shares of Common Stock and

    of any other junior stock of the Corporation that may be outstanding, shall

    be entitled to receive, when, as and if declared by the Board of Directors

    out of funds legally available for the purpose, quarterly dividends payable

    in cash on the tenth day of January, April, July and October in each year

    (each such date being referred to herein as a "Quarterly Dividend Payment

    Date"), commencing on the first Quarterly Dividend Payment Date after the

    first issuance of a share or fraction of a share of Series C Preferred

    Stock, in an amount per share (rounded to the nearest cent) equal to the

    greater of (i) $.25 per share ($1.00 per annum), or (ii) subject to the

    provision for adjustment hereinafter set forth, 100 times the aggregate per

    share amount of all cash dividends, and 100 times the aggregate per share

    amount (payable in kind) of all non-cash dividends or other distributions,

    other than a dividend payable in shares of Common Stock or a subdivision or

    combination or

 

 

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<PAGE>

 

    consolidation of the outstanding shares of Common Stock (by

    reclassification or otherwise), declared on the Common Stock since the

    immediately preceding Quarterly Dividend Payment Date, or, with respect to

    the first Quarterly Dividend Payment Date, since the first issuance of any

    share or fraction of a share of Series C Preferred Stock.  In the event

    that the Corporation shall at any time declare or pay any dividend on

    Common Stock payable in shares of Common Stock, or effect a subdivision or

    combination or consolidation of the outstanding shares of Common Stock (by

    reclassification or otherwise) into a greater or lesser number of shares of

    Common Stock, then and in each such event, the amount to which the holder

    of each share of Series C Preferred Stock was entitled immediately prior to

    such event under clause (ii) of the preceding sentence shall be adjusted by

    multiplying such amount by a fraction, the numerator of which is the number

    of shares of Common Stock outstanding immediately after such event, and the

    denominator of which is the number of shares of Common Stock that were

    outstanding immediately prior to such event.

 

              (ii)   The Corporation shall declare a dividend or distribution

    on the Series C Preferred Stock as provided in paragraph (d)(i) of this

    Section 1 contemporaneously with any declaration of a dividend or

    distribution on the Common Stock (other than a dividend payable in shares

    of Common Stock); provided, however, that in the event no dividend or

    distribution shall have been declared on the Common Stock during the period

    between any Quarterly Dividend Payment Date and the next subsequent

    Quarterly Dividend Payment Date, a dividend of $.25 per share ($1.00 per

    annum) on the Series C Preferred Stock shall nevertheless be payable on

    such subsequent Quarterly Dividend Payment Date.

 

              (iii)  Dividends shall begin to accrue and be cumulative on

    outstanding shares of Series C Preferred Stock from the Quarterly Dividend

    Payment Date next preceding the date of issue of such shares of Series C

    Preferred Stock, unless the date of issue of such shares is prior to the

    record date for the first Quarterly Dividend Payment Date, in which cash

    dividends on such shares shall begin to accrue from the date of issue of

    such shares, or unless the date of issue is a Quarterly Dividend Payment

    Date or is a date after the record date for the determination of holders of

    shares of Series C Preferred Stock entitled to receive a quarterly dividend

    and before such Quarterly Dividend Payment Date, in either of which cases

    such dividends shall begin to accrue and be cumulative from such Quarterly

    Dividend Payment Date.  Accrued but unpaid dividends shall cumulate but

    shall not bear interest.  Dividends paid on the shares of Series C

    Preferred Stock in an amount less than the total amount of such dividends

    at the time accrued and payable on such shares shall be allocated pro rata

    on a share-by-share basis among all such shares at the time outstanding.

    The Board of Directors may fix a record date for the determination of

    holders of shares of Series C Preferred Stock entitled to receive payment

    of a dividend or distribution declared thereon, which record date shall be

    not more than 60 days prior to the date fixed for the payment thereof.

 

    2.   PREFERENCE ON LIQUIDATION.

 

         (a)  CLASS A AND CLASS B PREFERRED STOCK.

 

              (i)    LIQUIDATION AMOUNT.  In the event of any liquidation,

    dissolution or winding up of the Corporation, the holders of shares of

    Class A Preferred Stock or Class B Preferred Stock then outstanding shall

    be entitled to be paid out of the assets of the Corporation available for

    distribution to its stockholders' whether from capital, surplus or

    earnings, before any payment shall be made in respect of Common Stock the

 

 

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    amount of One Hundred Dollars ($100) per share for each share of Class A

    Preferred Stock or Class B Preferred Stock then held by them, plus all

    accrued and unpaid dividends thereon to the date fixed for distribution.

    After setting apart or paying in full the preferential amounts due the

    holders of record of the issued and outstanding Class A Preferred Stock and

    Class B Preferred Stock, the Corporation's remaining equity (whether stated

    capital or surplus), if any, shall, subject to Section 2(b), be distributed

    exclusively to the holders of record of the issued and outstanding Common

    Stock.  If upon liquidation, dissolution or winding up of the Corporation,

    the assets of the Corporation available for distribution to its

    stockholders shall be insufficient to pay the holders of the Preferred

    Stock the full preferential amounts to which they shall be entitled, such

    assets as are available shall be distributed (pro rata, if necessary) first

    to the holders of Class A Preferred Stock, and any assets remaining after

    payment in full of the preferential amount on the Class A Preferred Stock

    shall be distributed pro rata to the holders of the Class B Preferred

    Stock.

 

              (ii)   MERGER OR SALE OF ASSETS.  The merger or consolidation of

    the Corporation into or with another corporation, or the sale of all or

    substantially all of the assets of the Corporation, shall not be deemed to

    be a liquidation, dissolution or winding up of the Corporation as those

    terms are used in paragraph (a); provided, however, that nothing in this

    clause (ii) shall be interpreted to lessen any rights granted to holders of

    Class A Preferred Stock and Class B Preferred Stock in Section 4(a)(ii)

    hereof.

 

         (b)  SERIES C PREFERRED STOCK.

 

              (i)    LIQUIDATION, DISSOLUTION OR WINDING UP.  Upon any

    liquidation, dissolution or winding up of the Corporation, no distribution

    shall be made to:

 

                     (A)     the holders of shares of stock ranking junior

              (either as to dividends or upon liquidation, dissolution or

              winding up) to the Series C Preferred Stock unless, prior

              thereto, the holders of shares of Series C Preferred Stock shall

              have received the greater of (1) $1.00 per share ($.01 per one

              one-hundredth of a share), plus an amount equal to accrued and

              unpaid dividends and distributions thereon, whether or not

              declared, to the date of such payment, or (2) an aggregate amount

              per share, subject to the provision for adjustment hereinafter

              set forth, equal to 100 times the aggregate amount to be

              distributed per share to holders of shares of Common Stock; or

 

                     (B)     the holders of shares of stock ranking on a parity

              (either as to dividends or upon liquidation, dissolution or

              winding up) with the Series C Preferred Stock, except

              distributions made ratably on the Series C Preferred Stock and

              all other such parity stock in proportion to the total amounts to

              which the holders of all such shares are entitled upon such

              liquidation, dissolution or winding up.

 

 

                                          5

<PAGE>

 

    In the event that the Corporation shall at any time declare or pay any

    dividend on Common Stock payable in shares of Common Stock, or effect a

    subdivision or combination or consolidation of the outstanding shares of

    Common Stock (by reclassification or otherwise) into a greater or lesser

    number of shares of Common Stock, then and in each such event, the

    aggregate amount to which the holder of each shares of Series C Preferred

    Stock was entitled immediately prior to such event under the proviso in

    clause (A) of the preceding sentence shall be adjusted by multiplying such

    amount by a fraction, the numerator of which is the number of shares of

    Common Stock outstanding immediately after such event, and the denominator

    of which is the number of shares of Common Stock that were outstanding

    immediately prior to such event.

 

              (ii)   RANK.  Unless otherwise provided in this Certificate of

    Incorporation or a Certificate of Designation relating to a subsequent

    series of Preferred Stock, the Series C Preferred Stock shall rank junior

    to all other series of Preferred Stock as to the payment of dividends and

    the distribution of assets on liquidation, dissolution or winding up, and

    senior to the Common Stock.

 

    3.   REDEMPTION.

 

         (a)  CLASS A AND CLASS B PREFERRED STOCK.

 

              (i)    REDEMPTION AT THE OPTION OF THE CORPORATION.

 

                        (A)  Subject to the provisions of Section 3(a)(vi), the

              Corporation may at any time it may lawfully do so, at the option

              of the Board of Directors, redeem the Class A Preferred Stock or

              Class B Preferred Stock in whole or in part by paying in cash

              therefor One Hundred Dollars ($100) for each share of Class A

              Preferred Stock or Class B Preferred Stock, as the case may be,

              together with all accrued and unpaid dividends on each such share

              (the "Preferred Stock Redemption Price"); and

 

                     (B)     So long as any Deferred Redemption Shares (as

              defined in Section 1(c) hereof) exist, the Corporation may, at

              any time it may lawfully do so, at the option of the Board of

              Directors, redeem any amount of Class B Preferred Stock not in

              excess of the number of Deferred Redemption Shares calculated

              immediately before such redemption at the Preferred Stock

              Redemption Price.  Any redemption of Class B Preferred Stock made

              pursuant to this Section 3(a)(i)(B) need not comply with the

              first sentence of Section 3(a)(vii).  The Notice of Optional

              Redemption required by Section 3(a)(vi) in respect of stock

              redeemed pursuant to this Section 3(a)(i)(B) shall specifically

              state the redemption is being made pursuant to this

              Section 3(a)(i)(B).

 

              (ii)   MANDATORY REDEMPTION OF CLASS A PREFERRED STOCK IN 1993.

    Between January 1, 1993 and May l, 1993 (both inclusive), the Corporation

    shall redeem all of the outstanding Class A Preferred Stock, or so much of

    the outstanding Class A

 

 

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<PAGE>

 

    Preferred Stock as may be legally redeemed by paying in cash therefor the

    Preferred Stock Redemption Price plus interest, if any, accrued thereon (at

    the rate announced by Bank of America NT & SA from time to time as its

    Reference Rate) from January 31, 1993 through May l, 1993 (or, if sooner,

    the payment date), subject to the following limitations:

 

                     (A)     The redemption (including interest) shall be

              required only to the extent, if any, that the corporation's

              Stockholders Equity (as defined below) at December 3l, 1992 was

              greater than the difference between (1) $l7,000,000 and (2) the

              total dollar amount paid to redeem any Class A Preferred Stock

              and Class B Preferred Stock on or prior to December 31, 1992

              pursuant to Section 3(a)(i)(A); and

 

                     (B)     The redemption shall be required only to the

              extent, if any, it is permitted by the terms of the Acquisition

              Financing Agreements (as defined below).

 

              (iii)  MANDATORY REDEMPTION OF CLASS A PREFERRED STOCK AFTER

    1993.  If all of the Class A Preferred Stock is not redeemed by May 1,

    1993, then, between January l and May l (both inclusive) in each year

    thereafter, the Corporation shall redeem Ten Thousand (10,000) shares (or

    such lesser amount as is then outstanding) of Class A Preferred Stock or so

    much thereof as may legally be redeemed, in cash at the Preferred Stock

    Redemption Price plus interest, if any, accrued thereon (at the rate

    announced by Bank of America NT & SA from time to time as its Reference

    Rate) from January 31 through May l of the year of the redemption (or, if

    sooner, the payment date), subject to the following limitations:

 

                     (A)     The redemption (including interest) provided for

              in this Section 3(a)(iii) for a particular year shall be required

              only to the extent, if any, that the Corporation's Stockholders

              Equity as of December 31 of the immediately preceding year shall

              exceed the sum of (1) $12,000,000 and (2) the aggregate

              liquidation preference of all Class A Preferred Stock and Class B

              Preferred Stock outstanding on January l of such year less

              $1,000,000 (or such lesser liquidation preference as applies to

              all Class A Preferred Stock then outstanding); and

 

                     (B)     The redemption shall be required only to the

              extent, if any, it is permitted by the terms of the Acquisition

              Financing Agreements.

 

              (iv)   MANDATORY REDEMPTION OF SERIES B PREFERRED STOCK.  Between

    January l and May 1 (both inclusive) of each year from 1994 to 1997

    (inclusive), the Corporation shall redeem Ten Thousand (10,000) shares (or

    such lesser amount as is then outstanding) of the Class B Preferred Stock,

    or so much thereof as may legally be redeemed, in cash at the Preferred

    Stock Redemption Price plus interest, if any, accrued thereon (at the rate

    announced by Bank of America NT & SA from time to time as its Reference

    Rate) from January 31 through May l of the year of the redemption (or, if

    sooner, the payment date), subject to the following limitations:

 

 

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                     (A)     The redemption (including interest) provided for

              in this Section 3(a)(iv) for a particular year shall be required

              only to the extent, if any, that the Corporation's Stockholders

              Equity as of December 31 of the immediately preceding year shall

              exceed the sum of (1) $15,000,000 and (2) the aggregate

              liquidation preference of all Class A Preferred Stock and Class B

              Preferred Stock outstanding on January l of such year less

              $1,000,000 (or such lesser liquidation preference as applies to

              all Class B Preferred Stock then outstanding);

 

                     (B)     The redemption shall be required only to the

              extent, if any, it is permitted by the terms of the Acquisition

              Financing Agreements;

 

                     (C)     No redemption shall be required if the ratio of

 

                        (1)  the Corporation's EBIT for the preceding calendar

                     year to

 

                        (2)  the Corporation's Senior Debt Service for the

                     preceding calendar year is below 150%; provided that, if

                     such ratio is greater than 150% but less than 200% and if

                     all of the other conditions to mandatory redemption set

                     forth in this Section 3(a)(iv) are satisfied, the

                     Corporation may by written notice given to the holder of

                     the Class B Preferred Stock on or before May 1 of such

                     year elect not to redeem all or any portion of the Class B

                     Preferred Stock then required to be redeemed pursuant to

                     this Section 3(a)(iv).  The giving of such notice shall

                     create Deferred Redemption Shares as defined in

                     Section 1(c) and give rise to a dividend obligation in

                     respect of the Class B Preferred Stock which shall accrue

                     and be payable in accordance with Section 1(c); and

 

                     (D)     The redemption shall be required only to the

              extent, if any, it will not reduce

 

                        (1)  the amount of funds available for borrowing under

                     the Corporation's revolving loan agreements, plus

 

                        (2)  the cumulative amount of Business Expansion Debt

                     theretofore drawn under such revolving loan agreements,

                     minus

 

                        (3)  the outstanding principal amount of the term loans

                     under the Acquisition Financing Agreements,

 

                        below $6,500,000.

 

              (v)    MANDATORY REDEMPTION OF ALL CLASS A AND CLASS B PREFERRED

    STOCK.  Notwithstanding anything to the contrary in this Section 2, on

    December 31, 1997

 

 

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    the Corporation shall redeem in cash, out of any funds legally available

    therefor, all outstanding shares of Class A and Class B Preferred Stock at

    the Preferred Stock Redemption Price.

 

              (vi)   NOTICE OF OPTIONAL REDEMPTION.  Notice of any redemption

    pursuant to Section 3 (a)(i) shall be given by certified or registered

    mail, postage prepaid, to the holders of record of the Class A Preferred

    Stock and/or Class B Preferred Stock to be redeemed at least 15 but no more

    than 30 days prior to the proposed date for redemption, such notice to be

    addressed to each such stockholder at the address of such holder given to

    the Corporation for the purposes of notice, or if no such address appears

    or is so given, at the place where the principal office of the Corporation

    is located.  Such notice shall state the date fixed for redemption, the

    number of shares to be redeemed and the redemption price per share and

    shall call upon such holder to surrender to the Corporation on said date at

    the place designated in the notice such holder's certificate or

    certificates representing the shares to be redeemed.  On or after the date

    fixed for redemption and stated in such notice, each holder of shares of

    Class A Preferred Stock and/or Class B Preferred Stock notified of the

    redemption shall surrender the certificate(s) evidencing such shares to the

    Corporation at the place designated in such notice and shall thereupon be

    entitled to receive payment of the redemption price.  If less than all the

    shares represented by any such surrendered certificate(s) are redeemed, a

    new certificate shall be issued representing the unredeemed shares.  If

    such notice of redemption shall have been duly given, and if on the date

    fixed for redemption funds necessary for the redemption shall be available

    therefor, then, as to any certificates evidencing any Class A Preferred

    Stock and Class B Preferred Stock so called for redemption and not

    surrendered, all rights of the holders of such shares so called for

    redemption and not surrendered shall cease with respect to such shares,

    except only the right of the holders to receive the redemption price

    without interest upon surrender of their certificates therefor.

 

              (vii)  PARTIAL REDEMPTION.  In the case of the redemption of a

    part only of the outstanding Class A or Preferred Stock or Class B

    Preferred Stock under Section 3(a)(i)(A), the Corporation shall redeem the

    Class A Preferred Stock and Class B Preferred Stock then outstanding on a

    pro rata basis (rounded to the nearest whole share).  If Class A Preferred

    Stock or Class B Preferred Stock is held by more than one holder and less

    than all the outstanding shares of such class are to be redeemed, the

    amount to be redeemed shall be allocated (rounded to the nearest whole

    share) among the holders of such class pro rata in accordance with the

    amount held by each.

 

         (b)  NO REDEMPTION OF SERIES C PREFERRED STOCK.  The shares of

    Series C Preferred Stock shall not be redeemable.  Notwithstanding the

    foregoing, the Corporation may acquire shares of Series C Preferred Stock

    in any other manner permitted by law or this Certificate of Incorporation.

    Any shares of Series C Preferred Stock purchased or otherwise acquired by

    the Corporation in any manner whatsoever shall be retired and cancelled

    promptly after the acquisition thereof.  All such shares shall upon their

    cancellation become authorized but unissued shares of Preferred Stock,

    without designation as to series, and may be reissued as part of any series

    of Preferred Stock

 

 

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<PAGE>

 

    created by resolution or resolutions of the Board of Directors (including

    Series C Preferred Stock), subject to the conditions and restrictions on

    issuance set forth herein.

 

4.  VOTING.

 

         (a)  CLASS A AND CLASS B PREFERRED STOCK.  The holders of the Class A

    Preferred Stock or Class B Preferred Stock shall not be entitled to vote

    for directors of the Corporation or upon any matter submitted to a vote of

    stockholders, except that:

 

              (i)    Any amendment of this Certificate of Incorporation or the

    Bylaws of the Corporation which adversely affects the rights, preferences,

    privileges and restrictions granted to or imposed upon the Class A

    Preferred Stock or Class B Preferred Stock in a manner different than its

    effect upon other capital stock of the Corporation, shall not be adopted

    without the vote of the holder(s) of two-thirds of the Class A Preferred

    Stock or Class B Preferred Stock affected by such amendment then

    outstanding.

 

              (ii)   Any increase in the authorized number of shares of any

    class or series of Preferred Stock or any authorization or designation of a

    class or series of Preferred Stock on a parity with the Class B Preferred

    Stock shall not be adopted without the vote of the holder(s) of two-thirds

    of the Class B Preferred Stock then outstanding.

 

              (iii)  Any authorization or designation of any equity security

    which is senior to the Class B Preferred Stock shall not be adopted without

    the vote of the holder(s) of two-thirds of the Class B Preferred Stock then

    outstanding.

 

              (iv)   In the event that for any reason the Corporation does not

    redeem all or any portion of the Class B Preferred Stock pursuant to

    Section 3(a)(iv), the holder(s) of Class B Preferred Stock, voting as a

    separate class, shall have the right to elect two (2) members of the Board

    of Directors, with such right commencing at the time of the failure to

    redeem and remaining in effect until the date upon which the Corporation

    has redeemed all Deferred Redemption Shares (as defined in Section 1(c)).

 

              (v)    Such holders shall have the right to vote to the extent

    required by the Delaware General Corporation Law.

 

         (b)  SERIES C PREFERRED STOCK.  The holders of shares of Series C

    Preferred Stock shall have the following voting rights:

 

              (i)    Each share of Series C Preferred Stock shall entitle the

    holder thereof to 100 votes (and each one one-hundredth of a share of

    Series C Preferred Stock shall entitle the holder thereof to one vote) on

    all matters submitted to a vote of the stockholders of the Corporation.  In

    the event that the Corporation shall at any time declare or pay any

    dividend on Common Stock payable in shares of Common Stock or effect a

    subdivision or combination or consolidation of the outstanding shares of

    Common Stock (by reclassification or otherwise than by payment of a

    dividend in shares of Common Stock) into a greater or lesser number of

    shares of Common Stock, then and in each such event, the number of votes

    per share to which holders of shares of Series C

 

 

                                          10

<PAGE>

 

    Preferred Stock were entitled immediately prior to such event shall be

    adjusted by multiplying such number by a fraction, the numerator of which

    is the number of shares of Common Stock outstanding immediately after such

    event, and the denominator of which is the number of shares of Common Stock

    that were outstanding immediately prior to such event.

 

              (ii)   Except as otherwise provided in this Certificate of

    Incorporation or herein or by law, the holders of shares of Series C

    Preferred Stock and the holders of shares of Common Stock shall vote

    together as one class on all matters submitted to a vote of the

    stockholders of the Corporation.

 

              (iii)  In addition, the holders of shares of Series C Preferred

    Stock shall have the following special voting rights:

 

                     (A)     In the event that at any time dividends on

              Series C Preferred Stock, whenever accrued and whether or not

              consecutive, shall not have been paid or declared and a sum

              sufficient for the payment thereof set aside, in an amount

              equivalent to six quarterly dividends on all shares of Series C

              Preferred Stock at the time outstanding, then and in each such

              event, the holders of shares of Series C Preferred Stock and each

              other series of Preferred Stock now or hereafter issued that

              shall be accorded such class voting right by the Board of

              Directors and that shall have the right to elect two directors as

              the result of a prior or subsequent default in payment of

              dividends on such series (each such other series being

              hereinafter called "Other Series of Preferred Stock"), voting

              separately as a class without regard to series, shall be entitled

              to elect two directors at the next annual meeting or a special

              meeting called for such purpose, in addition to the directors to

              be elected by the holders of all shares of the Corporation

              entitled to vote for the election of directors.  The remainder of

              the board shall be elected by the holders of all shares

              (including the Series C Preferred Stock and each Other Series of

              Preferred Stock) of the Corporation entitled to vote for the

              election of directors; provided, however, that the Series C

              Preferred Stock and each Other Series of Preferred Stock, voting

              as a class, shall not have the right to elect more than one-third

              of the directors pursuant to the provisions of this

              subsection (b)(iii)(A).  Such special voting right of the holders

              of shares of Series C Preferred Stock may be exercised until all

              dividends in default on the Series C Preferred Stock shall have

              been paid in full or declared and funds sufficient therefor set

              aside, and when so paid or provided for, such special voting

              right of the holders of shares of Series C Preferred Stock shall

              cease, but subject always to the same provisions for the vesting

              of such special voting rights in the event of any such future

              dividend default or defaults.  The provisions of this

              subsection (b)(iii)(A) shall be in addition to, and shall not

              affect, any other rights that the holders of any Other Series of

              Preferred Stock may hold with respect to the election of

              directors.  In the event that the provisions of this

              subsection (b)(iii)(A) are

 

 

                                          11

<PAGE>

 

              triggered, the authorized number of directors of the Corporation

              shall be increased to such number as is necessary to effect the

              voting rights set forth in this subsection (b)(iii)(A)

 

                     (B)     At any time after such special voting rights shall

              have so vested in the holders of shares of Series C Preferred

              Stock, the Secretary of the Corporation may, and upon the written

              request of the holders of record of 10% or more of the shares of

              Series C Preferred Stock and each Other Series of Preferred Stock

              then outstanding addressed to the Corporation shall, call a

              special meeting of the holders of all shares of the Corporation

              entitled to vote, for the election of directors to be elected as

              herein provided, to be held within 60 days after such call and at

              the place and upon the notice provided by law and in the Bylaws

              for the holding of meetings of stockholders; provided, however,

              that the Secretary shall not be required to call such special

              meeting in the case of any such request received less than

              90 days before the date fixed for any annual meeting of

              stockholders, and if in such case such special meeting is not

              called or held, the holders of shares of Series C Preferred Stock

              so entitled to vote shall be entitled to exercise the special

              voting rights provided in this paragraph at such annual meeting.

              No such special meeting and no adjournment thereof shall be held

              on a date later than 60 days before the annual meeting of

              stockholders.  If, at any meeting so called shares of Series C

              Preferred Stock have the special voting rights provided for in

              this paragraph, the holders of not less than 40% of the aggregate

              voting power of Series C Preferred Stock and each Other Series of

              Preferred Stock then outstanding are present in person or by

              proxy, such percentage shall be sufficient to constitute a quorum

              for the election of the two directors as herein provided.

 

                     (C)     Upon the election at such meeting by the holders

              of shares of Series C Preferred Stock and each Other Series of

              Preferred Stock, voting as a class, of the directors they are

              entitled so to elect, the persons so elected, together with such

              persons as may be directors or as may have been elected as

              directors by the holders of all shares (including Series C

              Preferred Stock and each Other Series of Preferred Stock)

              otherwise entitled to vote for directors, shall constitute the

              duly elected directors of the Corporation.  The directors so

              elected by holders of shares of Series C Preferred Stock and each

              Other Series of Preferred Stock, voting as a class, shall serve

              until the next annual meeting or until their respective

              successors shall be elected and qualified, or if any such

              director is a member of a class of directors under provisions

              dividing the directors into classes, each such director shall

              serve until the annual meeting at which the term of office of

              such director's class shall expire or until such director's

              successor shall be elected and shall qualify, and at each

              subsequent meeting of stockholders at which the directorship of

              any director elected by the vote of holders of shares of Series C

              Preferred

 

 

                                          12

<PAGE>

 

              Stock and each Other Series of Preferred Stock under the special

              voting rights set forth in this paragraph is up for election,

              said special class voting rights shall apply in the reelection of

              such director or in the election of such directors successor;

              provided, however, that whenever the holders of shares of Series

              C Preferred Stock and each Other Series of Preferred Stock shall

              be divested of the special rights to elect two directors as above

              provided, the terms of office of all persons elected as directors

              by the holders of shares of Series C Preferred Stock and each

              Other Series of Preferred Stock, voting as a class, shall

              forthwith terminate, and two directors shall be elected by the

              holders of all shares (including the Series C Preferred Stock and

              each Other Series of Preferred Stock) to fill their positions.

 

                     (D)     If, at any time after a special meeting of

              stockholders or an annual meeting of stockholders at which the

              holders of shares of Series C Preferred Stock and each Other

              Series of Preferred Stock, voting as a class, have elected

              directors as provided above, and while the holders of shares of

              Series C Preferred Stock and each Other Series of Preferred Stock

              shall be entitled so to elect two directors, the number of

              directors who have been elected by the holders of shares of

              Series C Preferred Stock and each Other Series of Preferred Stock

              (or who by reason of one or more resignations, deaths or removals

              have succeeded any directors so elected) shall by reasons of

              resignation, death or removal be less than two but at least one,

              the vacancy in the directors so elected by the holders of shares

              of the Series C Preferred Stock and each Other Series of

              Preferred Stock may be filled by the remaining director elected

              by such holders.  In the event that such election shall not occur

              within 30 days after such vacancy arises, or in the event that

              there shall not be incumbent one director so elected by such

              holders, the Secretary of the Corporation may, and upon the

              written request of the holders of record of 10% or more of the

              shares of Series C Preferred Stock and each Other Series of

              Preferred Stock then outstanding addressed to the Secretary at

              the principal office of the Corporation shall, call a special

              meeting of the holders of shares of Series C Preferred Stock and

              each Other Series of Preferred Stock so entitled to vote, for an

              election to fill such vacancy or vacancies, to be held within

              60 days after such call and at the place and upon the notice

              provided by law and in the Bylaws for the holding of meetings of

              stockholders; provided, however, that the Secretary shall not be

              required to call such special meeting of stockholders, and if in

              such case such special meeting is not called, the holders of

              shares of Series C Preferred Stock so entitled to vote shall be

              entitled to fill such vacancy or vacancies at such annual

              meeting.  If any such special meeting required to be called as

              above provided shall not be called by the Secretary within

              30 days after receipt of any such request, the holders of record

              of 10% or more of the shares of Series C Preferred Stock and each

              Other Series of Preferred Stock then outstanding may designate in

              writing one of their number to call such

 

 

                                          13

<PAGE>

 

              meeting, and the person so designated may, at the expense of the

              Corporation, call such meeting to be held at the place and upon

              the notice above provided, and for that purpose shall have access

              to the stock books of the Corporation; no such special meeting

              and no adjournment thereof shall be held on a date later than

              60 days before the annual meeting of stockholders.

 

              (iv)   Nothing herein shall prevent the directors or stockholders

    from taking any action to increase the number of authorized shares of

    Series C Preferred Stock, or increasing the number of authorized shares of

    Preferred Stock of the same class as the Series C Preferred Stock or the

    number of authorized shares of Common Stock, or changing the par value of

    the Common Stock or Preferred Stock, or issuing options, warrants or rights

    to any class of stock of the Corporation as authorized by this Certificate

    of Incorporation, as it may hereafter be amended.

 

              (v)    Except as set forth herein, holders of shares of Series C

    Preferred Stock shall have no special voting rights and their consent shall

    not be required (except to the extent they are entitled to vote as set

    forth in this Certificate of Incorporation or by law) for taking any

    corporate action.

 

    5.   CONVERSION RIGHTS OF CLASS A PREFERRED STOCK.

 

         (a)  CONVERSION OF CLASS A PREFERRED STOCK.  Upon or at any time after

    the effective date of a registration statement for the initial offering of

    the Corporation's Common Stock to the general public, each holder of

    Class A Preferred Stock which was not redeemed on or before such effective

    date may, upon surrender of the certificates therefor at the principal

    office of the Corporation, convert any or all of such holder's Class A

    Preferred Stock into a number of fully paid and non-assessable shares of

    Common Stock of the Corporation equal to (x) $100 multiplied by the number

    of shares of Class A Preferred Stock to be converted, divided by (y) the

    price to the public in such offering, in case the Conversion Date (as

    defined below) is such effective date, or, in the case of a later

    Conversion Date, the closing price as publicly reported on the principal

    established public market for the Common Stock on the Conversion Date (or,

    if the Conversion Date is not a trading day, the last prior trading day)

    or, if no such closing price was publicly reported for such day or last

    trading day, the mean of the asked and bid prices publicly reported on the

    principal established public market on such day or last trading day.

    Notwithstanding anything in this Section 5, any conversion right shall be

    suspended for the period when no conversion price can be determined

    pursuant to the preceding sentence.

 

         (b)  PROCEDURE FOR CONVERSION.  Before any holder of Class A Preferred

    Stock shall be entitled to convert the same into shares of Common Stock he

    shall surrender the certificate or certificates therefor, duly endorsed in

    blank or accompanied by forms appropriate for transfer, at the principal

    office of the Corporation and shall give written notice to the Corporation

    at its principal office that he elects to convert the same and shall state

    in writing therein the name or names in which he wishes a certificate or

    certificates

 

 

                                          14

<PAGE>

 

    for shares of Common Stock to be issued.  The Corporation shall, as soon as

    practicable thereafter, issue and deliver at such office to such holder of

    Class A Preferred Stock or to his nominee or nominees, certificates for the

    number of full shares of Common Stock to which he shall be entitled.  Upon

    conversion, no fractional shares shall be issued and in lieu thereof the

    Corporation shall pay in cash the fair market value of such fraction as

    determined by the Board of Directors.  Such conversion shall be deemed to

    have been made immediately prior to the close of business on the date of

    such surrender of the Class A Preferred Stock to be converted (such time

    being herein called the "Conversion Date"), and the person or persons

    entitled to receive the shares of Common Stock issuable upon conversion

    shall be treated for all purposes as the record holder or holders of such

    shares of Common Stock on the Conversion Date.

 

         (c)  MERGERS, CONSOLIDATIONS OR SALES OF ASSETS.  (i) In the event of

    a merger or consolidation of the Corporation with or into another

    corporation, or the sale of all or substantially all of the Corporation's

    properties and assets to any other person, then, as a part of such merger,

    consolidation or sale, provision shall be made so that the holders of the

    Class A Preferred Stock shall thereafter be entitled to receive upon

    conversion thereof, when and as such conversion right arises, the number of

    shares of stock or other securities or property of the Corporation, or of

    the successor corporation resulting from such merger or consolidation or

    sale to which a holder of Common Stock deliverable upon conversion would

    have been entitled on such merger, consolidation, or sale.  Nothing in this

    Section 5(c) shall diminish the voting rights of the Class A Preferred

    Stock or Class B Preferred Stock provided for in Section 4(a)(ii).

 

         (d)  NOTICE OF RECORD DATE.  If, at any time after the Class A

    Preferred Stock has become convertible under this Section 5, there is any

    capital reorganization of the Corporation, any reclassification or

    recapitalization of the capital stock of the Corporation or any transfer of

    all or substantially all of the assets of the Corporation to any other

    person, any consolidation or merger, or any voluntary or involuntary

    dissolution, liquidation or winding up of the Corporation, the Corporation

    shall mail to each holder of Class A Preferred Stock at least 30 days prior

    to the record date specified therein, a notice specifying (1) the date on

    which any such transaction is expected to become effective, and (2) the

    time, if any, that is to be fixed, as to when the holders of record of

    Common Stock (or other securities) shall be entitled to exchange their

    shares of Common Stock (or other securities) for securities or other

    property deliverable upon the consummation of such transaction.  Nothing in

    this Section 5(d) shall impair the voting rights of the Class A Preferred

    Stock or Class B Preferred Stock provided in Section 4(a)(ii).

 

         (e)  RESERVATION OF STOCK ISSUABLE UPON CONVERSION.  If the Class A

    Preferred Stock becomes convertible under this Section 5, the Corporation

    shall at all times reserve and keep available out of its authorized but

    unissued shares of Common Stock, solely for the purpose of effecting the

    conversion of the Class A Preferred Stock, such number of its shares of

    Common Stock as shall from time to time be sufficient to effect the

    conversion of all outstanding shares of Class A Preferred Stock; and if at

    any time the number of authorized but unissued shares of Common Stock shall

    not be sufficient to effect the conversion of all outstanding shares of

    Class A Preferred Stock, the Corporation will take

 

 

                                          15

<PAGE>

 

    such corporate action as may be necessary to increase its authorized but

    unissued shares of Common Stock to such number of shares as shall be

    sufficient for such purposes.

 

    6.   CERTAIN DEFINED TERMS.

 

         As used in this Article FOURTH, the following terms have the meanings

indicated:

 

         ACQUISITION FINANCING AGREEMENTS--the agreements and other instruments

by which the Corporation or any of its assets are bound and which were entered

into or created (i) at or before the closing of the Purchase Agreement in

connection with its borrowing of money for the payment of the "Purchase Price"

under the Purchase Agreement and for its working capital and other funding

needs, or (ii) in connection with any refinancing of the debt described in

clause (i) on terms not more burdensome on the Class A Preferred Stock or

Class B Preferred Stock, in the aggregate, than the terms applicable under

clause (i).

 

         BUSINESS EXPANSION DEBT--any indebtedness incurred by the Corporation

or its subsidiaries in connection with the acquisition of one or more businesses

other than those financed by the Acquisition Financing Agreements, or to

increase the number of separate locations at which the Corporation conducts

material sales or production operations (other than any merely temporary

location or any location within 100 miles of another location being disposed of,

deactivated or put to another use at substantially the same time).  For purposes

of allocating indebtedness between Business Expansion Debt and other kinds of

indebtedness, amounts borrowed on a term basis for such purposes shall be

considered as outstanding Business Expansion Debt in the amount borrowed less

any subsequent repayments of such term debt.  In the case of term debt, part of

which was incurred for such purposes and part of which was incurred for other

purposes but which is otherwise homogeneous, repayments shall be allocated pro

rata with the aggregate  amounts originally borrowed for such purposes and for

other purposes.

 

         EBIT--for any year, the consolidated net earnings of the Corporation

and its subsidiaries before deduction of interest, original issue discount, debt

issuance expense amortization and income tax expense, all determined in

accordance with generally accepted accounting principles consistently applied,

as set forth on the Corporation's audited annual financial statements.

 

         SENIOR DEBT SERVICE--for any year, the aggregate amount payable in

such year by the Corporation and its subsidiaries on a consolidated basis on

account of principal of and interest on obligations incurred for the borrowing

of money or the deferred purchase price (or capitalized leases) of any property

with an original term of more than one year, other than (in each case) Business

Expansion Debt.

 

         STOCKHOLDERS EQUITY--at any date, the consolidated stockholders equity

(both Class A Preferred Stock and Class B Preferred Stock and Common Stock) of

the Corporation and its subsidiaries, all determined in accordance with

generally accepted accounting principles consistently applied, as set forth on

the Corporation's audited annual financial statements.

 

 

                                          16

<PAGE>

 

    7.   CERTAIN ADDITIONAL PROVISIONS OF SERIES C PREFERRED STOCK.

 

         (a)  CERTAIN RESTRICTIONS.

 

              (i)    Whenever any dividends or other distributions payable on

    the Series C Preferred Stock as provided in Section 1 hereof are in

    arrears, thereafter and until all accrued and unpaid dividends and

    distributions, whether or not declared, on shares of Series C Preferred

    Stock outstanding shall have been paid in full, the Corporation shall not,

    directly or indirectly:

 

                     (A)     declare or pay dividends on, or make any other

              distributions with respect to, any shares of stock ranking junior

              (either as to dividends or upon liquidation, dissolution or

              winding up) to the Series C Preferred Stock;

 

                     (B)     declare or pay dividends on, or make any other

              distributions with respect to, any shares of stock ranking on a

              parity (either as to dividends or upon liquidation, dissolution

              or winding up) with the Series C Preferred Stock, except

              dividends paid ratably on shares on the Series C Preferred Stock

              and all such parity stock on which dividends are payable or in

              arrears in proportion to the total amounts to which the holders

              of all such shares are then entitled;

 

                     (C)     redeem or purchase or otherwise acquire for

              consideration shares of any stock ranking junior (either as to

              dividends or upon liquidation, dissolution or winding up) with

              the Series C Preferred Stock, provided that the Corporation may

              at any time redeem, purchase or otherwise acquire shares of any

              such junior stock in exchange for shares of any stock of the

              Corporation ranking junior (either as to dividends or upon

              dissolution, liquidation or winding up) to the Series C Preferred

              Stock; or

 

                     (D)     purchase or otherwise acquire for consideration

              any shares of Series C Preferred Stock, or any shares of stock

              ranking on a parity with the Series C Preferred Stock, except in

              accordance with a purchase offer made in writing or by

              publication (as determined by the Board of Directors) to all

              holders of such shares upon such terms as the Board of Directors,

              after consideration of the respective annual dividend rates and

              other relative rights and preferences of the respective Series

              and classes, shall determine in good faith will result in fair

              and equitable treatment among the respective series or classes.

 

              (ii)   The Corporation shall not permit any subsidiary of the

    Corporation to purchase or otherwise acquire for consideration, directly or

    indirectly, any shares of stock of the Corporation unless the Corporation

    could, under paragraph (i) of this Section 7(a), purchase or otherwise

    acquire such shares at such time and in such manner.

 

 

                                          17

<PAGE>

 

         (b)  AMENDMENT.  This Certificate of Incorporation shall not be

    amended in any manner that would materially and adversely alter or change

    the powers, preference or special rights of the Series C Preferred Stock

    without the affirmative vote of the holders of at least two-thirds of he

    outstanding shares of Series C Preferred Stock, voting together as a single

    series.

 

         (c)  FRACTIONAL SHARES.  Series C Preferred Stock may be issued in

    fractions of a share (in one one-hundredths (1/100) of a share and integral

    multiples thereof) that shall entitle the holder thereof, in proportion to

    such holder's fractional shares, to exercise voting rights, receive

    dividends, participate in distributions and have the benefit of all other

    rights of holders of shares of Series C Preferred Stock.

 

    FIFTH:  The Corporation is to have perpetual existence.

 

    SIXTH:  Whenever a compromise or arrangement is proposed between this

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

Corporation and its stockholders or any class of them any court of equitable

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

way of this Corporation or of any creditor or stockholder thereof or on the

application of any receiver or receivers appointed for this Corporation under

the provisions of section 291 of Title 8 of the Delaware Code or on the

application of trustees in dissolution or of any receiver or receivers appointed

for this Corporation under the provisions of section 279 of Title 8 of the

Delaware Code order a meeting of the creditors or class of creditors, and/or of

the stockholders or class of stockholders of this Corporation, as the case may

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

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

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

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

any reorganization of this Corporation as consequence of such compromise or

arrangement, the said compromise or arrangement and the said reorganization

shall, if sanctioned by the court to which the said application has been made,

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

stockholders or class of stockholders, of this Corporation, as the case may be,

and also on this Corporation.

 

    SEVENTH:  For the management of the business and for the conduct of the

affairs of the Corporation, and in further definition, limitation and regulation

of the powers of the Corporation and of its directors and of its stockholders or

any class thereof, as the case may be, it is further provided:

 

         l.   The management of the business and the conduct of the affairs of

    the Corporation shall be vested in its Board of Directors.  The number of

    directors which shall constitute the whole Board of Directors shall be

    fixed by, or in the manner provided in, the By-Laws.  The phrase "whole

    Board" and the phrase "total number of directors" shall be deemed to have

    the same meaning, to wit, the total number of directors which the

    Corporation would have if there were no vacancies.  No election of

    directors need be by written ballot.

 

         2.   After the original or other By-Laws of the Corporation have been

    adopted, amended, or repealed, as the case may be, in accordance with the

 

 

                                          18

<PAGE>

 

    provisions of Section 109 of the General Corporation Law of the State of

    Delaware, and, after the Corporation has received any payment for any of

    its stock, the power to adopt, amend, or repeal the By-Laws of the

    Corporation may be exercised by the Board of Directors of the Corporation;

    provided however, that any provision for the classification of directors of

    the Corporation for staggered terms pursuant to the provisions of

    subsection (d) of Section 141 of the General Corporation Law of the State

    of Delaware shall be set forth in an initial By-Law or in a By-Law adopted

    by the stockholders entitled to vote of the Corporation unless provisions

    for such classification shall be set forth in this Certificate of

    Incorporation.

 

         3.   Whenever the Corporation shall be authorized to issue only one

    class of stock, each outstanding share shall entitle the holder thereof to

    notice of, and the right to vote at, any meeting of stockholders.  Whenever

    the Corporation shall be authorized to issue more than one class of stock,

    no outstanding share of any class of stock which is denied voting power

    under the provisions of the Certificate of Incorporation shall title the

    holder thereof to the right to vote at any meeting of stockholders except

    as the provisions of paragraph (2) of subsection (b) of section 242 of the

    General Corporation Law of the State of Delaware shall otherwise require;

    provided, that no share of any such class which is otherwise denied voting

    power shall entitle the holder thereof to vote upon she increase or

    decrease in the number of authorized shares of said class.

 

    EIGHTH:  The personal liability of the directors of the Corporation is

hereby eliminated to the fullest extent permitted by paragraph (7) of

subsection (b) of Section 102 of the General Corporation Law of the State of

Delaware, as the same may be amended and supplemented.

 

    NINTH:  Following registration of any of the classes of equity securities

of the Corporation pursuant to the provisions of the Securities Exchange Act of

1934, as amended, no action shall be taken by the stockholders of the

Corporation except at an annual or special meeting of stockholders called in

accordance with the Bylaws and no action shall be taken by the stockholders by

written consent.

 

    TENTH:  From time to time any of the provisions of this Certificate of

Incorporation may be amended, altered or repealed, and other provisions

authorized by the laws of the State of Delaware at the time in force may be

added or inserted in the manner and at the time prescribed by said laws, and all

rights at any time conferred upon the stockholders of the Corporation by this

Certificate of Incorporation are granted subject to the provisions of this

Article TENTH.

 

 

                                          19

<PAGE>

 

    IN WITNESS WHEREOF, Building Materials Holding Corporation has caused its

corporate seal to be affixed hereto and this restated certificate of

incorporation to be signed by its President and attested by its Secretary, on

this 23 day of September, 1997.

 

 

                             BUILDING MATERIALS HOLDING

                             CORPORATION

 

                             By:

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

                             Name:  Robert E. Mellor

                             Title: President and Chief Executive Officer

 

 

(SEAL)

 

Attest:

 

 

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

Name:  Paul S. Street

Title: Secretary