A-1
EXHIBIT
A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ZEMEX CORPORATION
This corporation was organized by filing its original
Certificate of Incorporation with the Secretary of State of
the State of Delaware on November 27, 1985 under the
name of "Pactin Reincorporation
Corporation". This Amended and Restated
Certificate of Incorporation, which restates, integrates
and further amends the Certificate of Incorporation
of this
corporation, was duly adopted in accordance with Section 245
of the General Corporation Law of the State of Delaware.
ARTICLE I
The corporation was organized and exists under Delaware law.
ARTICLE II
The name of the corporation is "Zemex Corporation"
(hereinafter referred to as the "Corporation").
ARTICLE III
The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange
Street, City of Wilmington, County of New Castle, Delaware
19801. The name of
its registered agent at such address is The Corporation
Trust Company.
ARTICLE IV
The nature of the business of the Corporation and the
purposes for which it is organized are to engage in any
business and in any lawful act or activity for which
corporations may be organized under the General Corporation
Law of the State of Delaware and to possess and employ all
powers and privileges now or hereafter granted or available
under the laws of the State of Delaware to such corporations.
ARTICLE V
5.1 The total number of shares that the Corporation shall
have authority to issue is 25,000,000 shares, of which
20,000,000 shares shall be Common Shares, each with a par
value of $1.00, and 5,000,000 shares shall be Preferred
Shares, each with a par value of $1.00.
5.2 The board of directors is authorized, subject to
limitations prescribed by law, to provide by resolution or
resolutions for the issuance of the shares of preferred stock
as a class or in series, and, by filing a certificate of
designations, pursuant to the Delaware General Corporation
Law, setting forth a copy of
such resolution or resolutions, to establish from time to
time the number of shares to be included in each such series,
and to
fix the designations, powers, preferences, and rights of
the shares of the class or of each such series and
the
qualifications, limitations, and restrictions thereof.
The
authority of the board of directors with respect to the class
or
each series shall include, but not be limited to,
determination of the following:
(a) The number of shares constituting any series and
the
distinctive designation of that series;
(b) The dividend rate on the shares of the class or of
any
series, whether dividends shall be cumulative, and, if so,
from which date or dates, and the relative rights of priority,
if any, of payment of dividends on shares of the class or of
that series;
(c) Whether the class or any series shall have voting rights,
in addition to the voting rights provided by law, and, if so,
the terms of such voting rights;
(d) Whether the class or any series shall have
conversion
privileges, and, if so, the terms and conditions of
such conversion, including provision for adjustment of the
conversion rate in such events as the board of directors shall
determine;
(e) Whether or not the shares of the class or of any
series
shall be redeemable and, if so, the terms and conditions of
such redemption, including the date or date upon or after
which they shall be redeemable and the amount per share
payable in case
of
redemption, which amount may vary under different conditions
and at different redemption dates;
(f) Whether the class or any series shall have a sinking
fund
for the redemption or purchase of shares of the class or of
that series, and, if so, the terms and amount of such sinking
fund;
(g) The rights of the shares of the class or of any series
in
the event of voluntary or involuntary dissolution or winding
up
of the corporation, and the relative rights of priority, if
any, of payment of shares of the class or of that series; and
(h) Any other powers, preferences, rights,
qualifications,
limitations, and restrictions of the class or of any series.
5.3 Stock certificates shall not be issued to
represent
fractions or interests of less than a full share of Common
Shares of
the Corporation resulting from any decrease of
the
Corporation's authorized Capital Stock pursuant to an
amendment of this Certificate of Incorporation or otherwise,
but instead any and all rights in and to fractions or
interests of less than a full share of Common Shares of
the Corporation shall
be
represented by bearer scrip certificates to be adopted by
the board of directors of the Corporation. Such scrip
certificates shall not confer upon the holders any rights to
dividends or any voting or other rights of stockholders of
the Corporation, but that the Corporation shall from time to
time, prior to the sale of the shares represented by scrip
certificates as provided below, issue one or more whole
shares of Common Shares upon the surrender of scrip
certificates for fractions of shares aggregating the
number of whole shares issuable in respect of the scrip
certificates so surrendered, and a scrip certificate for any
fraction of a share in excess of one or more whole shares.
The shares of Common Shares of the Corporation in respect
of
interests in which scrip certificates shall be outstanding
shall be issued in the name of the Treasurer of the
Corporation,
as
such, and after January 1, 1942, in the discretion of the
board of directors of the Corporation, the shares of Capital
Stock then represented by outstanding scrip certificates may be
sold. After such sale, scrip certificates then outstanding
shall entitle the holders thereof to no rights whatsoever
except to receive their respective pro rata shares of the
proceeds of the shares of Common Shares sold as aforesaid,
without interest thereon, less their pro rata shares of the
expenses of such sale.
ARTICLE VI
6.1 The number of directors of the Corporation shall be
fixed from time to time in the manner provided in the by-laws
and may be increased or decreased from time to time in
the manner provided in the by-laws.
6.2 The board of directors shall have the power to provide,
by the by-laws or otherwise, for the selection from among
their own number of an Executive Committee of such number as
they may from time to time designate, and to delegate to
such Executive Committee all or any of the powers of the board
of directors, in so far as the delegation of such powers is
not contrary to law.
ARTICLE VII
The board of directors of the Corporation is expressly
authorized to make, alter, or repeal the by-laws of the
Corporation, but such authorization shall not divest the
shareholders of the power, nor limit their power, to adopt,
amend, or repeal by-laws.
ARTICLE VIII
The Corporation shall, to the fullest extent permitted
by Delaware law, as in effect from time to time, indemnify
any person against all liability and expense (including
attorneys' fees) incurred by reason of the fact that he is or
was a director or officer of the Corporation or, while serving
at the request of the Corporation as a director, officer,
partner or trustee of, or in any similar managerial or
fiduciary position of, or an employee or agent of,
another corporation, partnership, joint venture, trust,
association, or other entity. Expenses (including
attorneys' fees) incurred in defending an action, suit, or
proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit, or proceeding to the
fullest extent and under the circumstances permitted by
Delaware law. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee, fiduciary, or agent of the Corporation
against any liability asserted against and incurred by such
person in any such capacity or arising out of such person's
position, whether or not the Corporation would have the
power to indemnify against such liability under the
provisions of this Article VIII.
The
indemnification provided by this Article VIII shall not be
deemed exclusive of any other rights to which those indemnified
may be entitled under this Certificate of Incorporation,
any by-law, agreement, vote of stockholders or
disinterested directors, statute, or otherwise, and shall
inure to the benefit of their heirs, executors, and
administrators. The provisions of this Article VIII shall
not be deemed to preclude the Corporation from indemnifying
other persons from similar or other expenses and liabilities
as the board of directors or the stockholders may determine
in a specific instance or be resolution of general
application. Any repeal or modification of this Article VIII
by the shareholders of the Corporation shall not adversely
affect any right or protection of a director or officer
of the Corporation existing at the time of such repeal or
modification.
ARTICLE IX
A director of the Corporation shall not be personally liable
to the Corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except as to
liability for (i) any breach of the director's duty of
loyalty to the Corporation or its shareholders, (ii) acts or
omissions not in good faith or which involve intentional
misconduct or a knowing of violation of law, (iii)
violations of Section 174 of the Delaware General
Corporation Law, or (iv) any transaction from which the
director derived any improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to
further eliminate or limit the liability of a director, then a
director of the Corporation, in addition to the circumstances
in which a director is not personally liable as set forth in
the preceding sentence, shall not be liable to the fullest
extent permitted by the amended Delaware General Corporation
Law. Any repeal or modification of this Article IX by
the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
ARTICLE X
The Corporation shall have authority, to the fullest extent
now or hereafter permitted by the General Corporation Law
of the State of Delaware, or by any other applicable law, to
enter into any contract or transaction with one or more of its
directors or officers, or with any corporation, partnership,
joint venture, trust, association, or other entity in which
one or more of its directors or officers are directors or
officers, or have a financial interest, notwithstanding
such relationships and
notwithstanding the fact that the director or officer is
present at or participates in the meeting of the board of
directors or committee thereof which authorizes the contract
or transaction.
ARTICLE XI
The Corporation shall not be subject to the provisions of
Section 203 of the Delaware General Corporation Law.
The undersigned, for the purpose of Amending and Restating
the Certificate of Incorporation of the Corporation, does
make, file and record this Amended and Restated Certificate of
Incorporation and does hereby certify that the facts herein
stated are true; and I have accordingly hereunto set my hand.
Executed this 1st day of May, 1995.
____________________________________
Richard L. Lister
President and Chief Executive
Officer
ATTEST:
________________________________
Allen J. Palmiere
Vice President, Chief Financial Officer
and Assistant Secretary