Document QXXn15G5e5yBYoekV3kG08vNL

PLAINTIFF'S EXHIBIT GF-831 > V Certified Copy AGREEMENT OF MERGER Dated March 23 i 1967 Be tween GENERAL ANILINE & FILM CORPORATION and RuczFlOID CG. Vs.3 k. >* 'At'' .A" v WIMTHfiOP. S7IKION, PUTNAM C* P03C3TS *0 tCCT, NC>t. s. T. IOOCI 1-0700 ' AGREEMENT OF MERGER Agreement of Merger dared March 23, 196", between General Aniline S: Film Corporation, a Delaware corporation (hereinafter called "G-AF"), whose principal office and place of business in the State of Delaware is at 100 West Tenth Street, Wilmington, and a majority of the cirtctors thereof and 7ei Rvesro Co., a New Jersey corporation (hereinafter called "Ruberoid"), whose princinai office and place of business in the State of New Jersey is at Canal Road, South 3ound 3rook, and a majority of the directors thereof (said corporations being hereinafter sometimes referred to as the "Constituent Corporations"). Whbw, the respective Boards of Directors of the Constituent- Corporations deem it advisable for the general welfare and advantage of the respective Constituent Corporations and their respective stockholders that the Constituent Corporations merge into a single corporation pursuant to this Agree ment and the applicable laws oi the States of Delaware and New Jersey; Now, Therefore, in consideration of the mutual agreements and conditions herein contained, the Constituent Corporations hereby agree each with the other, in accordance with the applicable laws of the States of Delaware and New Jersey, that Ruberoid shall be merged with and into GAF as the surviving corporation, the name of which shall continue to be General Aniline & Film Corporation (and which in its capacity as such surviving corporation is hereinafter called the "Surviving Corporation"), and the terms and conditions of the merger and the mode of carrying it into effect are and shall be as follows: Article I. Effective Date; Filing Date. When this Agreement shall have been authorized, adopted, approved, signed, acknowledged, filed and recorded in accordance with the laws of. the State of Delaware and shali have been adopted, certified and fiied in accordance with the laws of the State of New Jersey, the separate existence oi Ruberoid shall cease and it shall be merged into the. Surviving Corporation. The date on which such recording and filing have been completed1 shall, be Imowxas the. "Effective Date", provided, however, that tor accounting purposes only, the merger shall be. considered efrtrdve as of the close oi business on the last day of the calendar month in which the Effective Date occurs. Counsel tor each of the Constituent Corporations shall agree upon the date on which this Agreement shall be submitted for filing in the States of Delaware and New Jersey, out such submission shall take place with reasonable promptness after the due approval o: this Agreement by the respective stockholders of the Constituent Corporations and the fulfillment or waiver of all o: the other conditions contained :r. Articles Nil and XIII hereof. Tne date ox such submission ior filing shall be known as the "Fiiing Date". % Article II. Governing Lev;; Certificate of Incorporation. Tne laws which are to govern the Surviving Corporation are the laws oi the State of Delaware. The Certificate o: Incorporation o? GAF as in effect cn the Effective Date, which shall be as stated in Exhibit A hereto, shall be the Certificate of Incorporation oi the Surviving Corporation from and after the Effective Date, subject always to the right of the Surviving Corporation to amend its Certificate oi incorporation in accordance with the laws ot the State of Delaware. Article III. By-Laws. The By-Laws oi the Surviving Corporation shall be the 3y-Laws of GAF as in effect on the Effecave Date, until changed or amended as provided therein. .Article IV. Manner of Converting Shores; Capitalization. The mode of carrying the merger into effec: and the manner and basis of converting the shares oi Ruberoid into shares ot the Surviving: Cor poration. forthwith upon the Effective Date, are as follows: (a) Each share of Capital Stock ct Ruberoid c: the par value of SI per share which is issued and outstanding on the Effective Date (other than shares o: such Capital Stock then cwr.ed by GAF or Ruberoid) shall, by virtue of the merger and without any action on the part at the holder thereof, be converted into one share of S1.2C Convertible Preferred Stock oi the Surviving Corporation of the par value oi SI per share, oi which the voting powers, designations, preferences and relative, participating or other rights, and the qualifications, limitations or restrictions thereof, are set forth in Exhibit A hereto, and which is hereafter in this Articie IV called the "New-Preferred". (b) Each share of Capital Stock of Ruberoid of the par value of $1 per share, which is issued and outstanding and owned by GAF or Ruberoid on the Effective Date shall, by virtue of the merger and without any action on the part of GAF or Ruberoid, be forthwith retired and cancelled. (c) The shares of Common Stock of GAF oi the par value of SI per share, issued and outstanding on the Effective Date, and any shares of such Common Stock held by it in its treasury, shall rtm.atn unchanged, and each certificate evidencing ownership oi any such shares shall continue to evidence ownership of the same number oi shares of the Surviving Corporation. As promptly as practicable after the Effective Date, each holder of an outstanding ctroifcate or certificates theretofore representing shares oi Capital Stock of Ruberoid shall surrender the same to Firs: National Gry Bank, New York, N. Y., and such holder shall be enctled upon such surrender to receive in exchange therefor a certificate or certificates representing die number of hull shares of New Preferred into which the shares of Capital Stock of Ruberoid theretoiore represented by the cerfincate or certificates so surrendered shall have been converted as aforesaid. Until so surrendered, each outstanding certificate which, prior to the Effective Date, represented Capital Stock of Ruberoid, shall be deemed for all pur poses, other than the payment of dividends or other distributions, to evidence ownership of the number of shares of New Preferred into which the shares of Capital Stock oi Ruberoid (which, prior to the Effec tive Date, were represented thereby) have been so converted, and no dividend or other distribution, if any, payable to holders of record of the shares of New Preferred as of any date subsequent to file Effective Date shall be paid to the holders of outstanding certificates theretofore representing shares oi Capital Stock of Ruberoid; provided, however, that upon surrender and exchange of such outstanding certificates theretofore representing shares of Capital Stock oi Ruberoid there shall be paid to the record holders of the certificates issued in exchange therefor the amount, without interest, thereon, of dividends and other distributions, ii any, which would have theretoiore become payable with-respect-to the-snares oi New Preferred represented thereby. On the Effective Date, each outstanding option to purchase or right to receive shares of Capital Stock of Ruberoid granted under Ruberoid's Incentive Stock Option Plan or Incentive Compensation Plan shall be assumed by the Surviving Corporation and shall forthwith be convened into an option to purchase or right to receive from the Surviving Corporation a number oi shares of New Preferred equal to the number of shares of Capital Stock of Ruberoid receivable or purchasable thereunder without any change in the aggregate valuation or option price. Each such option and right s'r.ail otherwise be upon the same terms and conditions as set forth in Ruberoid's Incentive Stock Option Plan or Incentive Compensation Plan, respectively. The total number of shares of all classes of stock which the Surviving Corporation shall have authority to issue shall be 31,000,000 shares, consisting of (i) 23,000.000 shares c: Common Stock of the par value of Si per share and (ii) 6.000.000 shares of Convertible Preferred Stock of the par value of SI per share, divided into and issuable in series, of which 3,1SS.320 shares shall be oi an initial series designated $1.20 Convertible Preferred Stock. AXTICLL V. Board of Directors and Of.ccrs. Initially, and until the election and cual their respecrive successors, the members o: the 3card of Directors of the Surviving Corpora shall be 16 in number) shall consist of the following persons : Hist Jesse Werner T. Roiand Berner John 3. 3ricgwood John A. Coleman Phiiip 3. Daiton ?o: C-.v.et Acd.-iij 140 Wes: ils: Street New York. N. Y. 10020. 30- Valley 3ouievard Wood-Ridge, N. J. 070/3 One Chase Manhattan Plana New York, X. Y. 10015 ! 1 Wail Street New York. X. Y. 10C05 140 West 51st Street New York, X. Y. .10020 ,OT. Of (who Niae Frands A. Gibbons Oveta Culp Hobby Bailey K. Howard Mathew Manes Wm. Peyton Maria Seymour Milstein E. J. O'Leary Donald L. Sanders Oiris C Schulze Sumner H. Williams Alvin Zises Port OSes Aadrtsi 140 Wen 5is: Street New York. N. Y. 1X20 2410 Polk Avenue Houston, Texas 77001 401 North Wabash Avenue Chicago, Illinois 606 ii 250 Park Avenue New York, N. Y. 1X17 84 William Street New York, N. Y. TX38 733 Third Avenue New York, N. Y. 1X17 733 Third Avenue New York, N. Y. 1X17 140 West 51st Street New York, N. Y. 1X20 140 West 51s: Street New York, N. Y. 1X20 65 Joanna Way Short Kills, N. J. 0707S 1255 Boylston Street Boston, Mass. 02115 In case any vacancy shall occur prior to the Effective Date, it may be filled after the Effective D by the remaining Directors in accordance with the By-Laws of the Surriring*Corporation. Initially, the officers of the Surviving Corporation (who shall be 13 in' number), shall crnsis: c: iolloving persons, who shall continue in office a: the pleasure of the Board of Directors of tie. Surviv Corpo. 4h,ot, Nine 0ce Post Once Address Jesse Werner Francis A. Gibbons Philip B. Dalton E. J. O'Leary Donald L. Sanders Chris C. Schulae James M. Cloney Leon Katz Beniamin D. Sisson Frank P. Soraie C. Joseph Hyland Herbert L. Abrons John F. Keintz Chairman o: die Eoard and President Executive Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Treasurer Secretary Counsel Controller 140 West 51s: Street New York, N. Y. 1X20 140 West 51s; Street New York, N. Y. 10020 140 West 51st Street New York, N. Y. 1X20 "33 Third Avenue New York, N. Y*. 10017 140 West 51s; Street New York. N. Y. ICC20 140 Wes: 51st Street New York. N. Y. 10C20 140 West 51s; Street New York. N. Y. iX20 i40 Wes; 51st Street New York. N. Y. iQX* 140 West 51s: Street New York. X. Y. iOC2C 14-0 West 51st Street New York, X. Y. :<X20 !-0 West 5lit Street New York. X. Y. 1X20 140 Wes: 51s: Scree: New York. N. Y. 1X20 I^O West 51s: Stret: New York, X. Y. 1X2* 3 Aaticis VI. Eject of the Merger. Upon the merger becoming effective, all the rights, privilege powers and franchises and ail property and assets of every kind and description of Ruberoid, including, without limitation,' patents, tradentarks, tradenames, names, licenses and registrations, and the good w-m relating to any of the foregoing, shall be vested in and be heid and enjoyed by the Surviving Come.--dor., without further act or deed, and ail the estates and interests of every kind of the Constituent Corporations, including all debts due to any of them oa whatever account, shall be as effectually the preperm* of the Sur viving Corporation as they were of the respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in any of the Constituent Corporations shall not revert or be in any wav impaired by reason of the merger; and all rights of creditors and all liens upon any property of any of the Constituent Corporations shall be preserved unimpaired, and all debts, liabilities and dunes of the respective Constituent Corporations shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as it said debts, liabilities and duties had been incurred or contracted by it. Ruberoid hereby agrees, to the extent permitted by law, from time to time, as and when requested by the Surviving Corporation or by its successors or assigns, to execute and deliver, or cause to be executed and delivered, all such deeds and instruments, and to take, or cause to be taken, such further or other action as the Surviving Corporation may deem necessary or desirable in order to vest in and confirm to the Surviving Corporation title to, and possession of, any property of Ruberoid acquired or to be acquired by reason of or as a result of the merger herein provided for, and otherwise to carry out the intent and purposes hereof, and the proper officers and directors of Ruberoid and the proper officers and directors of die Surviving Corporation are hereby authorized, in the name of Ruberoid or otherwise, to take any and all such actiox Aancir VII. Approval of Stockholders. This Agreement shall be submitted to the stockholders of each of the Constituent Corporations as provided by the applicable laws of the States of Delaware and Mew Jersey at meetings called separately to be held tor that purpose on or before May 31. 196", and if this Agreement shall have been adopted by the requisite vote.or consent of such stockholder: (which, in the case of each of the Constituent Corporations is the vote of the holders of at least two-thirds of the respective shares of Common or Capital Stock outstanding) and signed and. acknowledged in accordance with the applicable iaws of the States of Delaware and Xew Jersey, men. provided all card:iters herein contained shail have been fulfilled at such date, this Agreement ska:! be filed ar.c recorded ir. accordance with the laws of the State o: Delaware and a certified copy oi this Agreement shill be filed ir. accordance with the laws of the State of Xew Jersey, all as contemplated by Article I nerect. The Constituent Corporations shall do all such acts and things as shail be necessary cr desirable in order to effectuate the merger. This Agreement shall not be so submitted to the stockholders oi the Constituent Corporations unless the conditions referred to in Article XII (e) and Article XIII (e) shall have theretofore been met. AxTlClZ VIII.' Representations and n'arrar.ties of Ruberoid. Ruberoid represents and warrants mat: (a) Ruberoid is a corporation duly organized and existing and in good standing under tie laws of the State of Xew Jersey and has an authorized capital stock consisting of IC.CCO.OOO shares of . Capital Stock of the par value of SI per share oi which, as oi the date hereof, 4,i72.$c2 shares ' are issued and outstanding, exclusive of 42.9S6 shares heid in the treasury; no authorized but unissued shares of such Capital Stock have been reserved for issuance for any purpose exceot 101,690 shares reserved for issuance under Ruberoid's Incentive Stock Option Pian and there'are outstanding no other options, warrants or rights to purchase shares of such Capital Stock. (o) The following subsidiaries of Ru'ceroid constitute all of the presently active subsidiaries cf Ruberoid and are duly organized and validly existing in the states of their respective incorpo ration: Anertcan Felt Company (Massachusetts) ar.c its subsidiary Dryccr re:: Company (Con necticut). All the outstanding capital stock o: each oi said subsidiaries is owned by Ruberoid, subject to no liens or encumbrances, except that 513 shares oi the 192.750 outstanding shares oi Common Stock and all of the outstanding 4.474 shares of 6$c Cumulative Preferred 'Stock, o: American Feit 4 Company are owned by persons other than Ruberoid, and .American Fci: Company o\\-na ahl outstanding capital stock of Drycor Felt Company. (c) The consolidated statements of financial position of Ruberoid and its subsidiaries as a: December 31, 1966, 1965 and 1964 and the statements of consolidated earnings and income :;:a:ne-J in the business of Ruberoid and its subsidiaries for the three years ended on such cares, cerr.ctd by Price Waterhouse St Co., copies of which have been delivered by Ruberoid to GAF, fair:-,present the financial position of Ruberoid and its subsidiaries as at said dates and the results of their operations for the years then ended. All such statements have been prepared in ccorcmir.with generally accepted accounting principles consistently applied. (d) Since December 31, 1966, there h2s been no material adverse change in the business cr properties or in the condition, financial or otherwise, of Ruberoid and its subsidiaries. (e) Except as heretofore disciosed in writing by Ruberoid to GAF, there is no material litigation, proceeding or investigation pending or threatened which might result in a material!;adverse change in the properties or business or in the condition, financial or otherwise, of Ruberoid and its subsidiaries or which questions the validity or legality o: this Agreement or of acv action taken or to be taken by Ruberoid prior to or in connection with this Agreement. (f) Except as heretofore disclosed in writing by Ruberoid to GAF, neither Ruberoid nor any of its suosidiaries is a parry to any material contract not in the ordinary course of business which is to be performed in whole or in pan at or aiter the date of this Agreement. (g) Ruberoid and its subsidiaries, respectively, have good and. marketable, title to ail the real property, and good and valid tide to all other propern-, included in- the consolidated statement o: financial position of Ruberoid and its subsidiaries as of December 31, 1966, other an property dis posed of in the ordinary- course of business aiter said date. The properties of Ruberoid and its sub sidiaries are not subject to any mortgage, pledge, reservation, encumbrance or lien of any lead except miner encumbrances which do no: materially interfere with the use o: the property in die conduct of the business of Ruberoid or its subsidiaries, as the case may be. (h) The federal income tax returns of Ruberoid and its subsidiaries have been audited by the Internal Revenue Sen-ice tor all years to and including the taxable year ending December 31, 1960. .The provisions ior federal and state income taxes refiected in the financial statements referred to in subparagTaph (c) oi this Article VIII are adequate to cover any such taxes which may be assessed against Ruberoid and its subsidiaries in respect oi their business and operations during the periods covered by said financial statements and all prior periods. (i) Consummation o: the merger wiil not violate or result in a breach of or constitute a default under any provision of any charter, by-law, indent;:re, mortgage, lease, agreement, contract, instrument, order, judgment, decree, ordinance, regular: cu or any restriction of any kind or character to which any property of Ruberoid is subject or by which Ruberoid is bound, txcen: Ruberoid's Loan Agreement dated May 5, 1965 between Ruberoid and tne Banks named therein and the Agreement dated April S, 1959 with The Prudent::al Insurance Company of .America which was assumed by Ruberoid on May 3, 1965, and except tor possible minor breaches or defaults which in the aggregate would not materially intertere w;th the use ct Ruberoic's properties ar.d assets or the operation of its bustness. Art;car IX. P.;prtscr.:znons cnc Ii'erron: ns of C.-.F. G.-.F represents and warrant- that (a) C-AF is a corporation duiv organised and existing and in good standing under the iaws of the State of Delaware and has an authorised capital stock consisting o: 20.OOC.OOG shares or Common Stock of the par value of Si per share, of wnict*.. as oi tne date iiereoi. 13,342.060.r snares are issued and outstanding; no authorized but unissued shares of such Common Stock have beer, reserved for issuance for any purpose except 5S0.000 shares reserved for issuance,pursuant to options granted or to be gtanted under GAF's Stock Option Plan, 450 shores/ reserved for issuance pursuant to an option assayed by G.AF and 130,90S shares reserved for issuance uccz co=ve-:;=;. of GAF's Syafe Convertible Subordinated Notes due April 1, 19S3, and there are cutstancin^'ro other options, warrants or rights to purchase shares of' such Common Stock. (b) GAFhas heretofore disclosed in writing to Ruberoid the names of all of its presen-Jv a--vsubsidiaries and the place of organisation and the percentage of the outstanding voting stock c: eati: such subsidiary owned by GAF. Such voting stock is owned directly or indirectly by G.AF, subject, in the case of domestic corporations, to no liens or encumbrances. (c) The consolidated balance sheets oi GAF and its subsidiaries as of December 31, 1965. 19;5 and 1964 and the statements of consolidated income and retained earnings of GAF and its sub sidiaries for the three years on said dates, certified by Kaskins & Sells, copies oi which have been delivered by GAF to Ruberoid, fairly present the financial position of GAF and its subsidiaries as a: said dates and the results of their operations for the years then ended. All such statements have been prepared in conformity with generally accepted accounting principles consistently applied. (d) Since December 31, 1966, there has been no material adverse change in the business or properties or in the condition, financial or otherwise, of GAF and its subsidiaries. (e) Except as heretofore disclosed in writing by GAF to Ruberoid, there is no material liti gation, proceeding or investigation pending or threatened that might result in any materially adverse change in the properties or business or in the condition, financial or otherwise, of GAF and its subsidiaries or which questions the validity or legality of this Agreement or oi any action taken or to be taken by GAr prior to or in connection with this Agreement. (f) Except as heretofore disclosed in writing by GAF to Ruberoid. neither GAP r.or any of its subsidiaries is a part)- to any material contract not in the ordinary course of- business which is to be performed in whole or is part a: or after the date of mis Agreement. (g) GAF and its subsidiaries, respectively, have good and markemble title to all the real property, and good and vaiid title to all other property', induced in the consolidated balance sheet o: GAF and its subsidiaries as of December 31, 1966, other than property disposed of in the ordinary course of business after said date. The properties o: GAF and its subsidiaries are not subject to any mortgage, pledge, reservation, encumbrance or lien of any kind except minor en cumbrances which do not materially interfere with the use of the property in the conduct oi the business of GAF or its subsidiaries, as the case may be. (h) The federal income ax rerums of GAF have been audited by the Internal F.ever.ue Service for all years to and inducing the taxable year ending December 31, 1964. The provisions for Federal and .state income taxes rejected in the financial statements referred to in subparagranh (c) of this Article IX are adequate to.cover any such taxes which may be assessed again-: GAF in respect oi the business and operations during the periods covered by said financial statements and all prior periods. (i) Consummation oi the merger will not violate or result in a breach of o: constitute z. default under any provision of any charter, by-law, indenture, mortgage, lease, agreement, contract, instrument, order, judgment, decree, ordinance, regulation or ar.v restriction ot any kind or character to which any property ci GAF is subject or by which GAF is bound, except the Agree ments dated July 10, 194/ and July 5, 1951 between C-AF and The Metropolitan Life Insurance Company, the Note Exchange Agreements dated October 10. 1966 between GAF arc Massachusetts Mutual Life Insurance Company, The Prudential Insurance Company of -America and Allstate Insur ance Company, respectively, and the Note Exchange .Agreement dated October i4, 1966 between C-AF and United States National Bank of Oregon, a.nc except tor possible minor breaches or defaults which in the aggregate would not materially interfere with the use of GAF's properties and assets or the operation of its business. o Axitcax X. Covenants of Ruberoid. Ruberoid covenants and agrees that from and after date of this Agreement and until the E5ecriv Date: (a) Ruberoid will not declare or pay any dividends or make any other distribution c; assets to its shareholders, except regular quarterly dividends on its Capital Stock in an amount net exceeding $.25 per share per quarter. (b) Except as contemplated by this Agreement, neither Ruberoid nor any subsidiary will: (1) Make any change in its Certificate of Incorporation or 3v-Lcws; (2) Issue or sell, or issue rights to subscribe to, or grant options to purchase, its Capita! Stock (except upon exercise of options heretofore granted) or make any change in its capital structure (except for the purchase of outstanding shares of stock of American Felt Companv not owned hy Ruberoid) ; (3) Enter into any commitment not in the ordinary' course of business; or (4) Purchase any of its outstanding shares of Capital Stock. Ruberoid covenants and agrees that it will, prior to the Filing Date and subject to the approval oi its stockholders, amend Article Third of its Certificate oi Incorporation to read as set forth in Exhibit B hereto. AJtTicaz XI. Covenants of CAF. GAP covenants and agrees that from and after the date of this Agreement and until the Effective Date: (a) GAP will not declare or pay any dividends or make any other distribution of assets to its shareholders, except regular quarterly dividends on its Common Stock in an amount not exceeding S.10 per share. (b) Except as contemplated by this Agreement, GAF will not: (1) Make any change in its Certificate of Incorporation or By-Laws except as con templated by GAF's Proxy Statement dated March 17, 1957. a ccpy c: which has been delivered to Ruberoid; or (2) Without the.prior consent of Ruberoid, issue or sell or issue rights to subscribe to its Common Stock (except for shares presently reserved for issuance under GAF's Stock Octicn Plan or otherwise) or make any change in its capita: structure. GAF covenants and agrees that it will, pricr to the Filing Date and suhieca tome approval of its stockholders, amend Articles Third, Fourth and Fifth of its Certificate or lacnrpcrauor., as heretofore amended, so that its Certificate of Incorporation wili read as set form in Exhibit A hereto. 1 Article XII. Conditions Precedent to Obligations of CAP. GAF need r.ot consummate the merger ur.iess the following conditions shall be fulfiiied: (a) The representations ar.c warranties of Ruberoid set rertrt in Article VIII of this Agree ment snail be true and correct at and as o: the Filing Date as thou;rh made at and as of such cat: except as affected by transactions contemplated hereby, and GAF shall have received a cirunca:: dated the Fiiir.g Date, signed on behaii of Ruberoid by its Presic:er.t or a Vic* President and it Treasurer or an Assistant Treasurer, certifying in such detail as C-.-.F may request to the iumiimen of this condition. (b) Ruberoid shall have performed ail agreements herein contained to be performed b\ it on or before the Filing Date. 7 s/ (c) This Agreement shall have been adopted by the necessary vote or consent ct holders cf capital stock of Ruberoid and G.AF as set forth in Article VII hereof and any other requirements prescribed by law as requisite to the consummation of the merger shall have been fulfilled. (d) All coaseats of third parties, including governmental authorities, necessary on the part c: GAr or Ruberoid to the execution and delivery of this Agreement and the coasummauon c: i-.t transactions hereby contemplated, shall have been obtained, except any such consents which in the aggregate would not materially interfere with the use c: their respective properties and assets or the operation of their respecave businesses. (e) Article Third of the Ceraficate of Incorporation of Ruberoid, as heretofore amended, shall have been duly amended to read as set forth in Exhibit B hereto, Articles Third, Fourth and Fifth c: the Certificate of Incorporation of GAF, as heretofore amended, shall have been duly amended so that its Certificate of Incorporation will read as set forth in Exhibit A hereto. (f) The holders of not more than 200,000 shares of Ruberoid Capital Stock and 500,000 shares of GAF Common Stock shall have duly objected to the merger in accordance with the appraisal statutes of the States of New Jersey and Delaware, respectively. (g) GAF shall have become the beneficial and record owner of not less chan 1,090,200 snares of the outstanding Capital Stock of Ruberoid, subject to no lien, charge or encumbrance. (h) The parties to the agreements referred to in Articles VTII(i) and IX(i) (other that G.AF or Ruberoid) shall have consented to the consummation of the merger or the indebtedness out standing under such agreements shall have been refinanced in a manner - satisfactory so GAF. (i) Ruberoid shall have delivered to GAF an opinion of its counsel,.Messrs. Austin, Bums, Smith & Wails, dated as of the Filing Date, in form satisfactory to counsel for GAr, to the effect that: (1) Ruberoid is a corporation duly organized and-existing and in good standing under the laws of the State of New jersey and is duly qualified to do business as a foreign comcraticn in each jurisdiction in which the nature of its business or properties requires such qualification; (2) This Agreement has been duly and validly authorized, executed and delivered bv Ruberoid and is valid and binding upon Ruberoid in accordance with its terms; and (3) .All proceedings required by law or the provisions oi this Agreement to be taker, cv Ruberoid on or prior to the Filing Date in connection with the transactions contemplated bv this Agreement have been duly and validly taken. (j) Rubero'id shall have delivered to GAF an opinion of its tax counsel, Herman Goldman, Esc., dated as of the Filing Date, in form satisfactor- to counsel for GAr, to the effect that the merrer, if consummated as contemplated by this Agreement, will not result in any recognizable gain or loss to GA? or Ruberoid or the stockholders oi either of them tor Federal income tax ourooses. '. (k) GAF shall have received an opinion or opinions oi its counsel, or GAr shall have a tide policy or policies (or binder therefor), that upon the Effective Date the Surviving Corot:atier, will have acquired tide to the real properties described in subparagraph (g) o: .Article VIII her to: e: like quality- to that represented in said subparagraph (g). (1) GAF shall nave received a ler.tr from Price Waterhouse 5: Co., dated the Filing Datt, in form and substance satisfactory to GAr. stating that on the basis ot consultation with c meets of Ruberoid, a limited review (burnot an audit) oi Ruueroic'i amounting records. ar.c ether spec:fied procedures and inquiries, nothing has come to their attention which indicates chat durir. g the period from December 31, 1966 to a specified date not more than five days prior to the Filing Date there has been any material adverse change in the financial position ot Ruberoid and its subtle: anez. S (m) The shares of Sl_fO Convertible Preferred Stock issuable pursuant to this A----------'-he shares of Common Stock issuable upon conversion thereof, shall have been duly Listed uoco official notice of issuance on the New York Stock Exchange (n) None of the information which shall have been furnished by or on behalf of Ruberoid for inclusion in the proxy solicitation material sent to the stockholders of GAP in connection with the meeting of such stockholders to be held in accordance with Article VII of this Agreement shall be faise or misleading in any material respect or shall fail to state any tact necessary to make the statements therein not false or misleading in any material respecu ARTICLE XIII. Conditions Precedent to Obligations of Ruberoid. Ruberoid need no; consummate the merger unless the following conditions shall be fulfilled (a) The representations and warranties of GAF set forth in Amide IX of this Agreement shall be true and correct at and as of the Filing Date as though made at and as of said date, except as affected by transactions contemplated hereby, and Ruberoid shall have received a certificate, dated the Filing Date, signed on behalf of GAF by its President or a Vice President and its Treasurer or an Assistant Treasurer, certifying in such detail as Ruberoid may request to the fulfillment o: this condition. (b) GAF shall have performed all agreements herein contained to be performed by i; on or before the Filing Date. (c) This Agreement shall have been adopted by .the. necessary vore-.or.consent of holders of capital stock of Ruberoid and GAF as set forth in Article--VII hereof 2nd.any other requirements prescribed by law as requisite to the consummation of .the merger shall have.been fulfilled. (d) All consents of third parties, including governmental authorities;'necessary-on the part of Ruberoid or GAF to die execution and delivery 0: this Agreement and the consummation of the V transactions hereby contemplated shall have been obtained, except any such consents which in the aggregate would not materially interfere with the use of their respective properties and assets or the operation of their respective businesses. (e) Articles Third, Fourth, and Filth oi the Certificate of Incorporation e: GAF, as hereto* fore amended, shall have been duly amended so that its Certificate oi Incorporation will read as set forth in Exhibit A hereto, and Anicle Third oi the Certificate 0: Incorporation of Ruberoid, as heretofore amended, shall have been duly amended to read as set forth in Exhibit 3 hereto. (f) The parties to the agreements referred to in .Articles V'III(i) and IX(i) (other than C-.AF or Ruberoid)-shall have consented to the consummation oi the merger or the indebtedness outstand ing under.such agreements shall have been refinanced in a manner satisfactory to Rubercic. (g) GAF shall have delivered to Ruberoid a:i opinion 0: its counsel. Messrs. Wind Putn2m & Roberts, dated the Filing Date, in form satisfactory to counsel for Ru' erect that: p. 5 mson. oic, :o tr.e (1) GAF is a corporatic:r. duly orgar.tced and existing and in good standing under the laws 0: the State oi Delaware and is duly qualified to co business as a foreign corporation in each jurisdiction in which the nature ci the properties owned requires such qualification; (2) this .Agree nt has been duly and validly authorised, executed and delivered and is valid and bin g upon C-.AF in accordance with its terms; GAF (3) all proceedings required by law or the provisions of this'.Agreement to be taken by GAF on or prior to the Filing Date in connection with the transactions contemplated by this Agreement have been duly and validly taken; and 9 j (4) The merger, if consummated as contemplated by this Agreement, will no: result in any recognizable gainor loss to GAF or Ruieroid or the stockholders of either of them :'c: Federal income tax purposes. (h) Ruberoid shall have received a letter from Haskins 5: Sells, dated the Filing Date, in form, and substance satisfactory to Ruberoid. stating that on the basis of consultation with omcers c: GA~, a limited renew (but not an audit) of GAF's accounting records, and other specified procedures ar.d inquiries, nothing has come to their attention which indicates that during the period from December 31, 1966 to a specified date not more than five days prior to the Filing Date there has im material adverse change in the financial position of GAF and its subsidiaries. (i) The shares of $1.20 Converuble Preferred Stock issuable pursuant to this Agreement, end the shares of Common Stock issuable upon conversion thereof, shall have been duly listed upon official notice of issuance on the New York Stock Exchange (j) None of the information which shall have been furnished by or on behalf of GAF for inclusion in the proxy solicitation material sent to the stockholders of Ruberoid in connection with the meeting of such stockholders, to be held in accordance with Article VII of this Agree ment shall be false or misleading in any material respect or shall fail to state any fact necessary to make the statements therein not false or misleading in any material respect. Article XIV. Termination. If, in the opinion ox the Board of Directors of both of the Con stituent Corporations, as evidenced by resolutions adopted by the respective Boards and deiivered to the other Constituent Corporation prior to the Filing Date, it is nor advisable.to proceed with the consummation of the merger for any reason, including, without limitation, the number of shares of either Constituent Corporation for which the holders thereof shall have demanded payment, then this Agreement, notwithstanding the satisfaction of all conditions herein contained, shall terminate. The Constituent Corporations agree that the representations and warranties contained in this Agree ment shall expire upon, and be terminated by, the consummation o: the merger. Article XV. Waiver. Any failure of either of the Constituent Corporations to comply with any of its obligations, agreements or conditions herein contained may be waived in writing by the other Constituent Corporation. In the event that either of the Constituent Corporations shall have been put on notice at least five days before the Filing Date of the failure or apparent failure of the other Constituent Corporation to comply with any of its obligations, agreements or conditions herein contained, such Constituent Corporation snail, at least five days before the Filing Date, notify such other Constituent Corporation of such failure and (if such be the case) its intention to rely therecn as a basis for not consummating the merger. Article XVI. Inspection. From the date hereof to the Effective Date. GAF and Ruberoid, respectively, shall provide each other with such information and permit their respective omcers and representatives such access to properties as either of them may from time to time reasonably require, provided, however, that neither part}- shall have access to the formulae, secret know-how and scientific research data of the other. If the merger is not consummated, all documents shall be returned to the party furnishing the same, and all information obtained pursuant to this paragraph shall be treated as confidential. Article XVII. Expenses. The Surviving Corpora tier, shall pay all expenses of carrying this Agreement into effect ana of accomplishing the merger, including amounts,, if ar.y, to whim stockholders who may dissent may be entitled by reason oi the merger; provided, however, that in the event the merger shall not become effective for any reason, each of the parties hereto shall pay the iets and expenses of its respective counsel, accountants and financial advisers,, but ail other expenses 10 incident to the negotiation and the preparason of this Agreement shall be divided equally between ' GA? and Ruberoid. AiTXCLX XVIII. General. V (a) Brokerage. GAF and Ruberoid each represents to die other that it has not incurred ar.v liability for brokerage fees or commissions in connection with this Agreement or the merger. . (b) Certificates as to Votes and Dissents. Prior to the Piling Date of the merger, GAP and Ruberoid shall each deliver to the other a certificate of its Secretar*y or an Assistant Secrstar*v serinO* forth: (1) The number of shares of stock outstanding and entitled to vote on die approval 0f this Agreement and the number of shares voted in favor oi the approval of this Agreement and the number of shares voted against the approval of this Agreement; and (2) The number of stockholders not voting in favor of this Agreement, as of the date of said certificate, who have duly objected to the merger as contemplated by Article XII(f), and the number of shares of record held by each such stockholder. (c) Execution in Counterparts. For the convenience of die parties and to facilitate filing, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original instrument, but all such counterparts together shall constitute but one agreement. (d) Notices. All notices which are required or may be given pursuant to this Agreement shall be sufficient in all respects if given in writing and delivered personally or by registered or certified mail, postage prepaid, as follows: If to GAF: To: Copy to: Jesse Werner, Chairman and President General Aniline & Film Corporation 140 West" 51st Street Mew York, K.Y. 10020 Wlnthrop, Stimson. Putnam & Roberts 30 Rockefeller Plata New York, N.Y. 10020 If to Ruberoid t To: Copy to: E. J. O'Leary, Chairman and President The Ruberoid Co. 733 Third Avenue New York, N.Y. 10017 Austin, Bums, Smith S; Wails 535 Fiith Avenue New York, N.Y*. 10017 - I.v Witjcsss Whsxsof, this Agreement has beer, signed by at leas; a rr.a.ioritv of he Beard ot Directors of each of the Constituent Corporations, and each of the Cor.stiru er.t Corpcratso: s has caused its corporate seal to be hereunto affixed and attested by the signature o ;s Secretary or Assistant Secretin-, all as of the date firs; above written. 11 y D:xcrcxs or Czyzx^i. Asn.:sx Ovea Cui? Hobbr C"U C Sc.-.":; J V 12 I, C. JOSEPH HYLAND, Secretary cf G ENERAL T ' * V & FILM CORPORATION,' a corporation organized and exis under the laws of the State of Delaware, hereby certify, as such Secretary and under the seal of the said corporation, that the Agreement cf Merger to which this certificate' is attached, after having been first duly signed on behalf of the said corporation, as required by the General Corporation Lav of Delaware, by a majority of the directors cf said corporation, and by The Ruberoid Co., a corporation cf the State of New Jersey, was duly submitted to the stockholders of General Aniline <5: Film Corporation at a special meeting cf said stockholders called and held separately from the meeting of stockholders of any other corporation after at least twenty days 1 notice by mail and notice by publication as provided by Section 251 of Title 8 of the Delav/are Code of 1953i on the 26th day of May, 1967, for the purpose of considering and taking action upon the proposed Agreement of Merger: and that Thirteen Million, Three Hundred Forty-cvo Thousand sixty and one-half (13^3^2,060.5) shares of stock of said corporation were on said date issued and outstanding; that the holders of Nine Million, Severr Hundred Tuer-cy-Eighc Thousand, Se Hundred Thircy-cwo (9,728,732 ' ` ) shares voted by ballot in person or oy p roxy in favor of the adoption, and the u ciders Of two Thousand Eighcy-Seven, Eighc Hundred Tvency-Eighc 687,828 ) shares voted by ballot in person or by proxy against the adoption, of the proposed Agreement of Merger, the said affirmative vote representing at least two-thirds or total number of shares of the outstanding capital stock of said corporation; and that thereby the Agreement cf Merger -.'as at said meeting duly adopted as the act orf the stockholders of General Aniline & Film Corporation and the duly adopted agreerne of said corporation. WITNESS my hand and the seal of said General A & Film Corporation this day of /fflZAsy , 196 7. ie V The foregoing Agreement of Merger, having been executed by a majority of the Board of Directors of General Aniline 5: Film Corporation, a corporation of the State of Delaware, and having been adopted separately by the stock holders of said General Aniline & Film Corporation, in accord ance with the provisions of the General Corporation Law of the State of Delaware, and that fact having been certified on said Agreement of Merger by the Secretary of said corpora tion, and having been adopted by The Ruberoid Co., a corpora tion of the State of New Jersey, in the manner prescribed by the provisions of Title 14 of the Revised Statutes of the State of New Jersey, the President and Secretary of each of O the corporations parties to the Agreement do new hereby exe this Agreement of Merger under its corporate seal by the'au of the directors and stockholders of General Aniline <5: Film Corporation and the stockholders of The Ruberoid Co., as the act, deed and agreement of each of said corporations on this -2Gtk day of /frlG^y , 1967. GENERAL ANILINE & FILU.CORPORATION THE RUBEROID CC. j STATS OF NSW YOHX ) : SS. : COUNTY OF NSW YOHK) BS IT FB2GT-2BBZD that on this day^of May, A.D. 1967, personally cane before me /f. ^<_ a Notary Public in and for the County and State aforesaid, JSSS3 WEZNER, President of GSNZP.AL ANILINE <5: FILM CORPORATION, a corporation of the State of Delaware and one of the corp orations described in and which executed the foregoing Agreement of Merger, known to me personally to be such, ar.d he, the said Jesse Werner, as such President, duly executed said Agreement of Merger before-ne and acknowledged said Agreement of Merger to be the act, deed and agreement of said General Aniline & Film Corporation, that the signatures of the said President and the Secretary of said corporation to the said Agreement of Merger are in the handwriting of said President and Secretary of said General. Aniline < Film Corporation, and that the seal affixed - to-* said Agreement of Merger is the common or corporate seal of said.;corporation. IN WITNESS WHEREOF, I have hereunto set my hand ant seal of office the day and year aforesaid. it R^NCAC; Cafwy Fuoi>c. ii4: e.` Nw To*k t No. 05.3622200 __ m e.-on* Cstmfy oir, M4IU 20,