CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PREFERRED STOCK
OF
MINERALS TECHNOLOGIES INC.
Pursuant to Section 151 of the Delaware
General Corporation Law
I, John R. Stack, Vice President - Finance of Minerals
Technologies Inc., a corporation organized and existing under the
Delaware General Corporation Law (the "Company"), in accordance
with the provisions of Section 151 of such law, DO HEREBY CERTIFY
that pursuant to the authority conferred upon the Board of
Directors by the Amended and Restated Certificate of
Incorporation of the Company, the Board of Directors on October
26, 1992 adopted the following resolution which creates a series
of 280,000 shares of Preferred Stock designated as Series A
Junior Preferred Stock, as follows:
RESOLVED, that pursuant to Section 151(g) of the Delaware
General Corporation Law and the authority vested in the Board of
Directors of the Company in accordance with the provisions of
ARTICLE FOURTH, Section B of the Amended and Restated Certificate
of Incorporation of the Company, a series of Preferred Stock of
the Company be, and hereby is, created, and the powers,
designations, preferences and relative, participating, optional
or other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof, be, and
hereby are, as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Preferred Stock"
(the "Series A Preferred Stock") and the number of shares
constituting such series shall be 280,000.
Section 2. Dividends and Distributions.
(A) Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of Series A
Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, (I) cash dividends in an amount per share
(rounded to the nearest cent) equal to 100 times the aggregate
per share amount of all cash dividends declared or paid on the
Common Stock, $0.10 par value per share, of the Company (the
"Common Stock") and (ii) preferential cash dividend (the
"Preferential Dividends"), if ny, in preference to the holders of
any class of Common Stock, on the first day of February, May,
August and November of each year (each 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 A Preferred Stock, payable in an amount (except
in the case of the first Quarterly Dividend Payment if the date
of the first issuance of Series A Preferred Stock is a date other
than a Quarterly Dividend Payment date, in which case such
payment shall be a prorated amount of such amount) equal to $1.00
per share of
Series A Preferred Stock less the per share amount
of all cash dividends declared on the Series A Preferred Stock
pursuant to clause (I) of this sentence 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 A Preferred Stock.
In the event the Company shall, at any time after the issuance of any share
or fraction of a share of Series A Preferred Stock,
make any distribution on the shares of Common Stock of the
Company, whether by way of a dividend or a reclassification of
stock, a recapitalization, reorganization or partial liquidation
of the Company or otherwise, which is payable in cash or any debt
security, debt instrument, real or personal property or any other
property (other than cash dividends subject to the immediately
preceding sentence, a distribution of shares of Common Stock or
other capital stock of the Company or a distribution of rights or
warrants to acquire any such share, including any debt security
convertible into or exchangeable for any such share, at a price
less than the Fair Market Value (as hereinafter defined) of such
share), then, and in each such event, the Company shall
simultaneously pay on each then outstanding share of Series A
Preferred Stock of the Company a distribution, in like kind, of
100 times such distribution paid on a share of Common Stock
(subject to the provisions for adjustment hereinafter set forth).
The dividends and distributions on the Series A Preferred Stock
to which holders thereof are entitled pursuant to clause (I) of
the first sentence of this paragraph and pursuant to the second
sentence of this paragraph are hereinafter referred to as
"Dividends" and the multiple of such cash and non-cash dividends
on the Common Stock applicable to the determination of the
Dividends, which shall be 100 initially buy shall be adjusted
from time to time as hereinafter provided, is hereinafter
referred to as the "Dividend Multiple". In the event the Company
shall at any time after November 6, 1992 declare or pay any
dividend or make any distribution on Common Stock payable in
shares of Common Stock, or effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding
shares of Common Stock into a greater or lesser number of shares
of Common Stock, then in each such case the Dividend Multiple
thereafter applicable to the determination of the amount of
Dividends which holders of shares of Series A Preferred Stock
shall be entitled to receive shall be the Dividend Multiple
applicable immediately prior to such event multiplied 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.
(B) The Company shall declare each Dividend at the same time
it declares any cash or non-cash dividend or distribution on the
Common Stock in respect of which a Dividend is required to be
paid. No cash or non-cash dividend or distribution on the Common
Stock in respect of which a Dividend is required to be paid shall
be paid or set aside for payment on the Common Stock unless a
2
Dividend in respect of such dividend or distribution on the
Common Stock shall be simultaneously paid, or set aside for
payment, on the Series A Preferred Stock.
(C) Preferential Dividends shall begin to accrue on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issuance of any
shares of Series A Preferred Stock. Accrued but unpaid
Preferential Dividends shall cumulate but shall not bear
interest. Preferential Dividends paid on the shares of Series A
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.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Company. The number of votes which a
holder of Series A Preferred Stock is entitled to cast, as the
same may be adjusted from time to time as hereinafter provided,
is hereinafter referred to as the "Vote Multiple". In the event
the Company shall at any time after November 6, 1992 declare or
pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or split or a combination,
consolidation or reverse split of the outstanding shares of
Common Stock into a greater or lesser number of shares of Common
Stock, then in each such case the Vote Multiple thereafter
applicable to the determination of the number of votes per share
to which holders of shares of Series A Preferred Stock shall be
entitled after such event shall be the Vote Multiple immediately
prior to such event multiplied 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.
(B) Except as otherwise provided herein, in the Amended and
Restated Certificate of Incorporation or By-laws, the holders of
shares of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Company.
(C) In the event that the Preferential Dividends accrued on
the Series A Preferred Stock for four or more quarterly dividend
periods, whether consecutive or not, shall not have been declared
and paid or irrevocably set aside for payment, the holders of
record of Preferred Stock of the Company of all series (including
the Series A Preferred Stock), other than any series in respect
of which such right is expressly withheld by the Amended and
Restated Certificate of Incorporation or the authorizing
resolutions included in any Certificate of Designations therefor,
shall have the right, at the next meeting of stockholders called
for the election of directors, to elect two members to the Board
of Directors, which directors shall be in addition to the number
3
required by the By-laws prior to such event, to serve until the
next Annual Meeting and until their successors are elected and
qualified or their earlier resignation, removal or incapacity or
until such earlier time as all accrued and unpaid Preferential
Dividends upon the outstanding shares of Series A Preferred Stock
shall have been paid (or irrevocably set aside for payment) in
full. The holders of shares of Series A Preferred Stock shall
continue to have the right to elect directors as provided by the
immediately preceding sentence until all accrued and unpaid
Preferential Dividends upon the outstanding shares of Series A
Preferred Stock shall have been paid (or set aside for payment)
in full. Such directors may be removed and replaced by such
stockholders, and vacancies in such directorships may be filled
only by such stockholders (or by the remaining director elected
by such stockholders, if there be one) in the manner permitted by
law; provided, however, that any such action by stockholders
shall be taken at a meeting of stockholders and shall not be
taken by written consent thereto.
(D) Except as otherwise required by the Amended and Restated
Certificate of Incorporation or By-laws or set forth herein, holders of
Series A Preferred Stock shall have no other special
voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock
as set forth herein) for the taking of any corporate action.
Section 4. Certain Restrictions.
(A) Whenever Preferential Dividends or Dividends are in
arrears or the Company shall be in default of payment thereof,
thereafter and until all accrued and unpaid Preferential
Dividends and Dividends, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid or set
irrevocably aside for payment in full, and in addition to any and
all other rights which any holder of shares of Series A Preferred
Stock may have in such circumstances, the Company shall not
(I) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration, any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to
dividends with the Series A Preferred Stock, unless dividends are
paid ratably on the Series A 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 if the full dividends accrued thereon were to be
paid;
(iii) except as permitted by subparagraph (iv) of this
paragraph 4(A), redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, provided that the Company may at
any time redeem, purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock of the Company
ranking junior (both as to dividends and upon liquidation,
dissolution or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock (either as
to dividends or upon liquidation, dissolution or winding up),
except in accordance with a purchase offer made 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.
(B) The Company shall not permit any Subsidiary (as
hereinafter defined) of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company
unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner. A "Subsidiary" of the Company shall mean any
corporation or other entity of which securities or other
ownership interests having ordinary voting power sufficient to
elect a majority of the board of directors of such corporation or
other entity or other persons performing similar functions are
beneficially owned, directly or indirectly, by the Company or by
any corporation or other entity that is otherwise controlled by the Company.
(C) The Company shall not issue any shares of Series A
Preferred Stock except upon exercise of Rights issued pursuant to
that certain Rights Agreement dated as of October 26, 1992
between the Company and Chemical Bank, a copy of which is on file
with the Secretary of the Company at its principal executive
office and shall be made available to stockholders of record
without charge upon written request therefor addressed to said
Secretary. Notwithstanding the foregoing sentence, nothing
contained in the provisions hereof shall prohibit or restrict the
Company from issuing for any purpose any series of Preferred
Stock with rights and privileges similar to, different from, or
greater than, those of the Series A Preferred Stock.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Company in
any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares upon their
retirement and cancellation shall become authorized but unissued
shares of Preferred Stock, without designation as to series, and
such shares may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of
Directors.
6. Liquidation, Dissolution or Winding Up. Upon
any voluntary or involuntary liquidation, dissolution or winding
up of the Company, no distribution shall be made (I) to the
holders of shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless the holders of shares of Series A
Preferred Stock shall have received, subject to adjustment as
hereinafter provided, (A) $100.00 per share plus an amount equal
to accrued
and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment or, (B) if greater than
the amount specified in clause (I) (A) of this sentence, an
amount equal to 100 times the aggregate amount to be
distributed per share to holders of Common Stock, as the same may
be adjusted as hereinafter provided and (ii) to the holders of
stock ranking on a parity upon liquidation, dissolution or
winding up with the Series A Preferred Stock, unless
simultaneously therewith distributions are made ratably on the
Series A Preferred Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of
shares of Series A Preferred Stock are entitled under clause (I)
(A) of this sentence and to which the holders of such parity
shares are entitled, in each case upon such liquidation,
dissolution or winding up. The amount to which holders of Series
A Preferred Stock may be entitled upon liquidation, dissolution
or winding up of the Company pursuant to clause (I) (B) of the
foregoing sentence is hereinafter referred to as the
"Participating Liquidation Amount" and the multiple of the amount
to be distributed to holders of shares of Common Stock upon the
liquidation, dissolution or winding up of the Company applicable
pursuant to said clause to the determination of the Participating
Liquidation Amount, as said multiple may be adjusted from time to
time as hereinafter provided, is hereinafter referred to as the
"Liquidation Multiple". In the event the Company shall at any
time after November 6, 1992 declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision
or split or a combination, consolidation or reverse split of the
outstanding shares of Common Stock into a greater or lesser
number of shares of Common Stock, then, in each such case, the Liquidation
Multiple thereafter applicable to the determination
of the Participating Liquidation Amount to which holders of
Series A Preferred Stock shall be entitled after such event shall
be the Liquidation Multiple applicable immediately prior to such
event multiplied 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.
Section 7. Certain Reclassifications and Other Events.
(A) In the event that holders of shares of Common Stock
of the Company receive after November 6, 1992 in respect of their
shares of Common Stock any share of capital stock of the Company
(other than any share of Common Stock of the Company), whether by
way of reclassification, recapitalization, reorganization,
dividend or other distribution or otherwise (a "Transaction"),
then, and in each such event, the dividend rights, voting rights
and rights upon the liquidation, dissolution or winding up of the
Company of the shares of Series A Preferred Stock shall be
adjusted so that after such event the holders of Series A
Preferred Stock shall be entitled, in respect of each share of
Series A Preferred Stock held, in addition to such rights in
respect thereof to which such holder was entitled immediately
prior to such adjustment, to (I) such additional dividends as
equal the Dividend Multiple in effect immediately prior to such
Transaction multiplied by the additional dividends which the
holder of a share of Common Stock shall be entitled to receive by
virtue of the receipt in the Transaction of such capital stock,
(ii) such additional voting rights as equal the Vote Multiple in
effect immediately prior to such Transaction multiplied by the
additional voting rights which the holder of a share of Common
Stock shall be entitled to received by virtue of the receipt in
the Transaction of such capital stock and (iii) such additional
distributions upon liquidation, dissolution or winding up of the
Company as equal the Liquidation Multiple in effect immediately
prior to such Transaction multiplied by the additional amount
which the holder of a share of Common Stock shall be entitled to
receive upon liquidation, dissolution or winding up of the
Company by virtue of the receipt in the Transaction of such
capital stock, as the case may be, all as provided by the terms
of such capital stock.
(B) In the event that holders of shares of Common Stock of
the Company receive after November 6, 1992 in respect of their
shares of Common Stock any right or warrant to purchase Common
Stock (including as such a right, for all purposes of this
paragraph, any security convertible into or exchangeable for
Common Stock) at a purchase price per share less than the Fair
Market Value of a share of Common Stock on the date of issuance
of such right or warrant, then and in each such event the
dividend rights, voting rights and rights upon the liquidation,
dissolution or winding up of the Company of the shares of Series
A Preferred Stock shall each be adjusted so that after such event
the Dividend Multiple, the Vote Multiple and the Liquidation
Multiple shall each be the product of the Dividend Multiple, the
Vote Multiple and the Liquidation Multiple, as the case may be,
in effect immediately prior to such event multiplied by a
fraction the numerator of which shall be the number of shares of
Common Stock outstanding immediately before such issuance of
rights or warrants plus the maximum number of shares of Common
Stock which could be acquired upon exercise in full of all such
rights or warrants and the denominator of which shall be the number of
shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the number of shares of
Common Stock which could be purchased, at the Fair Market Value
of the Common Stock at the time of such issuance, by the maximum
aggregate consideration payable upon exercise in full of all such
rights or warrants.
(C) In the event that holders of shares of Common Stock of
the Company receive after November 6, 1992 in respect of their
shares of Common Stock any right or warrant to purchase capital
stock of the Company (other than shares of Common Stock),
including as such a right, for all purposes of this paragraph,
any security convertible into or exchangeable for capital stock
of the Company (other than Common Stock), at a purchase price per
share less than the Fair Market Value of such shares of capital
stock on the date of issuance of such right or warrant, then and
in each such event the dividend rights, voting rights and rights
upon liquidation, dissolution or winding up of the Company of the
shares of Series A Preferred Stock shall each be adjusted so that
after such event each holder of a share of Series A Preferred
Stock shall be entitled, in respect of each share of Series A
Preferred Stock held, in addition to such rights in respect
thereof to which such holder was entitled immediately prior to
such event, to receive (I) such additional dividends as equal the
Dividend Multiple in effect immediately prior to such event
multiplied, first, by the additional dividends to which the
holder of a share of Common Stock shall be entitled upon exercise
of such right or warrant by virtue of the capital stock which
could be acquired upon such exercise and multiplied again by the
Discount Fraction (as hereinafter defined) and (ii) such
additional voting rights as equal the Vote Multiple in effect
immediately prior to such event multiplied, first, by the
additional voting rights to which the holder of a share of Common
Stock shall be entitled upon exercise of such right or warrant by
virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction and (iii)
such additional distributions upon liquidation, dissolution or
winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such event multiplied, first, by the
additional amount which theholder of a share of Common Stock
shall be entitled to receive upon liquidation, dissolution or
winding up of the Company upon exercise of such right or warrant
by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction. For
purposes of this paragraph, the "Discount Fraction" shall be a
fraction the numerator of which shall be the difference between
the Fair Market Value of a share of the capital stock subject to
a right or warrant distributed to holders of shares of Common
Stock of the Company as contemplated by this paragraph
immediately after the distribution thereof and the purchase price
per share for such share of capital stock pursuant to such right
or warrant and the denominator of which shall be the Fair Market
Value of a share of such capital stock immediately after the
distribution of such right or warrant.
(D) For purposes of this Certificate of Designations, the
"Fair Market Value" of a share of capital stock of the Company
(including a share of Common Stock) on any date shall be deemed
to be the average of the daily closing price per share thereof
over the 30 consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date; provided, however, that,
in the event that such Fair Market Value of any such share of
capital stock is determined during a period which includes any
date that is within 30 Trading Days after (i) the ex-dividend date for
a dividend or distribution on stock payable in shares of
such stock or securities convertible into shares of such stock,
or (ii) the effective date of any subdivision, split,
combination, consolidation, reverse stock split or
reclassification of such stock, then, and in each such case, the
Fair Market Value shall be appropriately adjusted by the Board of
Directors of the Company to take into account ex-dividend or
post-effective date trading. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked
prices, regular way (in either case, as reported in the
applicable transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange), or, if the shares are not listed or admitted to
trading on the New York Stock Exchange, as reported in the
applicable transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the shares are listed or admitted to trading or, if the
shares are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of
Securities Sealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then in use, or if on any such date the shares
are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional
market maker making a market in the shares selected by the Board
of Directors of the Company. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which
the shares are listed or admitted to trading is open for the
transaction of business or, if the shares are not listed or
admitted to trading on any national securities exchange, on which
the New York Stock Exchange or such other national securities
exchange as may be selected by the Board of Directors of the
Company is open. If the shares are not publicly held or not so
listed or traded on any day within the period of 30 Trading Days
applicable to the determination of Fair Market Value thereof as
aforesaid,"Fair Market Value" shall mean the fair market value
thereof per share as determined in good faith by the Board of
Directors of the Company. In either case referred to in the
foregoing sentence, the determination of Fair Market Value shall
be described in a statement filed with the Secretary of the
Company.
Section 8. Consolidation, Merger, etc. In case the Company
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case each outstanding share of Series
A Preferred Stock shall at the same time be similarly exchanged
for or changed into the aggregate amount of stock, securities,
cash and/or other property (payable in like kind), as the case
may be, for which or into which each share of Common Stock is
changed or exchanged multiplied by the highest of the Vote
Multiple, the Dividend Multiple or the Liquidation Multiple in
effect immediately prior to such event.
Section 9. Effective Time of Adjustments.
(A) Adjustments to the Series A Preferred Stock required by
the provisions hereof shall be effective as of the time at which
the event requiring such adjustments occurs.
(B) The Company shall give prompt written notice to each
holder of a share of Series A Preferred Stock of the effect of
any adjustment to the voting rights, dividend rights or rights
upon liquidation, dissolution or winding up of the Company of
such shares required by the provisions hereof. Notwithstanding
the foregoing sentence, the failure of the Company to give such
notice shall not affect the validity of or the force or effect of
or the requirement for such adjustment.
Section 10. No Redemption. The shares of Series A
Preferred Stock shall not be redeemable at the option of the
Company or any holder thereof. Notwithstanding the foregoing
sentence of this Section, the Company may acquire shares of
Series A Preferred Stock in any other manner permitted by law,
the provisions hereof and the Restated Certificate of
Incorporation of the Company.
Section 11. Ranking. Unless otherwise provided in the
Amended and Restated Certificate of Incorporation of the Company
or a Certificate of Designations relating to a subsequent series
of preferred stock of the Company, the Series A Preferred Stock
shall rank junior to all other series of the Company's 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.
Section 12. Amendment. The provisions hereof and the
Amended and Restated Certificate of Incorporation of the Company
shall not be amended in any manner which would adversely affect
the rights, privileges or powers of the Series A Preferred Stock
without, in addition to any other vote of stockholders required
by law, the affirmative vote of the holders of two-thirds or more
of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, I have executed and subscribed this
Certificate of Designations and do affirm the foregoing as true
under the penalties of perjury this 4th day of November, 1992.
/s/ _________________________
Name: John R. Stack
Title: Vice President - Finance
ATTEST:
/s/_____________________________
Secretary