<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarter ended September 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________________ to ___________________
Commission File Number 1-1175
Cooper Industries, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Ohio 31-4156620
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
600 Travis, Suite 5800 Houston, Texas 77002
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(713) 209-8400
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(Registrant's telephone number, including area code)
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
Number of shares outstanding of issuer's common stock as of October 31, 1996
was 108,037,569.
<PAGE> 2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
COOPER INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- -----------------------------
1996 1995 (1) 1996 1995 (1)
------------- -------------- -------------- -------------
(in millions, except per share data)
<S> <C> <C> <C> <C>
REVENUES . . . . . . . . . . . . . . . . . $ 1,315.5 $ 1,191.3 $ 3,977.3 $ 3,571.0
Cost of sales . . . . . . . . . . . . . . . 870.0 800.5 2,653.1 2,383.5
Depreciation and amortization . . . . . . . 59.4 55.1 177.4 161.2
Selling and administrative expenses . . . . 225.4 196.8 688.8 586.6
Automotive asset write-down . . . . . . . . 85.3 - 85.3 -
Other income, net . . . . . . . . . . . . . (113.4) (15.1) (145.8) (26.7)
Interest expense . . . . . . . . . . . . . 35.4 37.0 109.8 114.8
------------- ------------- ------------- -------------
Income before income taxes . . . . . . 153.4 117.0 408.7 351.6
Income taxes . . . . . . . . . . . . . . . 76.1 47.7 181.0 144.2
------------- ------------- ------------- -------------
Income from continuing operations . . . 77.3 69.3 227.7 207.4
Charge for discontinued operations . . . . - - - (186.6)
------------- ------------- ------------- -------------
NET INCOME . . . . . . . . . . . . . . . . $ 77.3 $ 69.3 $ 227.7 $ 20.8
============= ============= ============= =============
INCOME PER COMMON SHARE:
Primary:
Continuing operations . . . . . . . . . $ .72 $ .65 $ 2.12 $ 1.83
Net income . . . . . . . . . . . . . . $ .72 $ .65 $ 2.12 $ .18
Fully Diluted:
Continuing operations . . . . . . . . . $ .68 $ .62 $ 2.00 $ 1.76
Net income . . . . . . . . . . . . . . $ .68 $ .62 $ 2.00 $ .18
DIVIDENDS PER COMMON SHARE . . . . . . . . $ .33 $ .33 $ .99 $ .99
</TABLE>
(1) Other income, net, previously reported in revenues, was reclassified
to be consistent with the current presentation.
The accompanying notes are an integral part of these statements.
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<PAGE> 3
COOPER INDUSTRIES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
--------------- --------------
ASSETS (in millions)
<S> <C> <C>
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . $ 9.8 $ 17.7
Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,025.7 992.7
Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981.2 963.5
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114.8 153.4
--------------- --------------
Total current assets . . . . . . . . . . . . . . . . . . . . . . 2,131.5 2,127.3
--------------- --------------
Property, plant and equipment, less accumulated depreciation . . . . . . 1,164.0 1,232.1
Intangibles, less accumulated amortization . . . . . . . . . . . . . . . 2,188.3 2,226.0
Investments in marketable equity securities . . . . . . . . . . . . . . . 404.3 406.2
Deferred income taxes and other assets . . . . . . . . . . . . . . . . . 86.8 72.3
--------------- --------------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . $ 5,974.9 $ 6,063.9
=============== ==============
LIABILITIES AND SHAREHOLDERS' EQUITY
Short-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 109.6 $ 34.3
Accounts payable and accrued liabilities . . . . . . . . . . . . . . . . 1,096.0 1,180.5
Accrued income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 54.1 10.4
Current maturities of long-term debt . . . . . . . . . . . . . . . . . . 80.1 157.2
--------------- --------------
Total current liabilities . . . . . . . . . . . . . . . . . . . 1,339.8 1,382.4
--------------- --------------
Long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,858.0 1,865.3
Postretirement benefits other than pensions . . . . . . . . . . . . . . . 609.5 620.0
Other long-term liabilities . . . . . . . . . . . . . . . . . . . . . . . 321.1 479.8
--------------- --------------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . 4,128.4 4,347.5
--------------- --------------
Common stock, $5.00 par value . . . . . . . . . . . . . . . . . . . . . . 540.1 539.4
Capital in excess of par value . . . . . . . . . . . . . . . . . . . . . 147.1 141.6
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,222.9 1,100.3
Unearned employee stock ownership plan compensation . . . . . . . . . . . (96.6) (121.6)
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.0 56.7
--------------- --------------
Total shareholders' equity . . . . . . . . . . . . . . . . . . . 1,846.5 1,716.4
--------------- --------------
Total liabilities and shareholders' equity . . . . . . . . . . . $ 5,974.9 $ 6,063.9
=============== ==============
</TABLE>
The accompanying notes are an integral part of these statements.
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<PAGE> 4
COOPER INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
------------------------------
1996 1995
------------- -------------
(in millions)
<S> <C> <C>
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 227.7 $ 20.8
Charge for discontinued operations . . . . . . . . . . . . . . . . . . . - 186.6
------------- -------------
Income from continuing operations . . . . . . . . . . . . . . . . . . 227.7 207.4
Adjustments to reconcile to net cash provided
by operating activities:
Depreciation . . . . . . . . . . . . . . . . . . . . . . . . . . . 116.5 103.5
Amortization . . . . . . . . . . . . . . . . . . . . . . . . . . . 60.9 57.7
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . . 15.8 38.2
Gain on sales of marketable equity securities . . . . . . . . . . (127.6) (8.5)
Automotive asset write-down . . . . . . . . . . . . . . . . . . . 85.3 -
Changes in assets and liabilities: (1)
Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . (21.4) 13.4
Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . (9.3) 37.4
Accounts payable and accrued liabilities . . . . . . . . . . . (67.4) (9.8)
Accrued income taxes . . . . . . . . . . . . . . . . . . . . . 43.0 23.9
Other assets and liabilities, net . . . . . . . . . . . . . . . 25.2 (20.0)
------------- -------------
Net cash provided by operating activities . . . . . . . . 348.7 443.2
------------- -------------
Cash flows from investing activities:
Cash paid for acquired businesses . . . . . . . . . . . . . . . . . . . (235.8) (11.9)
Capital expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . (139.8) (134.3)
Proceeds from sales of property, plant and equipment . . . . . . . . . . 20.4 20.7
Proceeds from sales of marketable equity securities . . . . . . . . . . 204.0 9.9
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 (0.4)
------------- -------------
Net cash used in investing activities . . . . . . . . . . (149.0) (116.0)
------------- -------------
Cash flows from financing activities:
Proceeds from issuances of debt . . . . . . . . . . . . . . . . . . . . 314.1 254.7
Repayments of debt . . . . . . . . . . . . . . . . . . . . . . . . . . . (415.2) (429.3)
Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (106.9) (125.7)
Debt issue costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . (0.8) -
Activity under employee stock plans and other . . . . . . . . . . . . . 1.8 6.5
------------- -------------
Net cash used in financing activities . . . . . . . . . . (207.0) (293.8)
------------- -------------
Cash flows used by discontinued operations . . . . . . . . . . . . . . . . - (47.7)
Effect of exchange rate changes on cash and cash equivalents . . . . . . . (0.6) (2.6)
------------- -------------
Decrease in cash and cash equivalents . . . . . . . . . . . . . . . . . . . (7.9) (16.9)
Cash and cash equivalents, beginning of period . . . . . . . . . . . . . . 17.7 25.3
------------- -------------
Cash and cash equivalents, end of period . . . . . . . . . . . . . . . . . $ 9.8 $ 8.4
============= =============
</TABLE>
(1) Net of the effects of acquisitions, divestitures, and translation.
The accompanying notes are an integral part of these statements.
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<PAGE> 5
COOPER INDUSTRIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Adjustments
The financial information presented as of any date other than December
31 has been prepared from the books and records without audit. Financial
information as of December 31 has been derived from the audited financial
statements of the Company, but does not include all disclosures required by
generally accepted accounting principles. In the opinion of management, all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of the financial information for the periods indicated, have
been included. For further information regarding the Company's accounting
policies, refer to the Consolidated Financial Statements and related notes for
the year ended December 31, 1995 included as Appendix A to the Company's Proxy
Statement dated March 12, 1996.
Note 2. Inventories
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
--------------- --------------
(in millions)
<S> <C> <C>
Raw materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 302.6 $ 281.1
Work-in-process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210.6 227.5
Finished goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542.3 500.9
Perishable tooling and supplies . . . . . . . . . . . . . . . . . . . . 55.3 55.0
----------- ----------
1,110.8 1,064.5
Less allowances (primarily LIFO reserves) . . . . . . . . . . . . . . . (129.6) (101.0)
----------- ----------
Net inventories. . . . . . . . . . . . . . . . . . . . . . . . $ 981.2 $ 963.5
=========== ==========
</TABLE>
Note 3. Investments in Marketable Equity Securities
During the quarter ended September 30, 1996, the Company disposed of
its remaining shares of Cooper Cameron Corporation common stock realizing
proceeds of $175.6 million. The Company also continued to sell its Belden Inc.
common stock during the third quarter. Proceeds from the sale of these
marketable equity securities totaled $179.3 million for the quarter, resulting
in a realized gain of $107.2 million. As discussed in Note 7, the Company
recorded a write-down of assets that substantially offset this gain.
- 5 -
<PAGE> 6
Note 4. Long-Term Debt
At September 30, 1996, commercial paper and bank loans of $118.7
million were reclassified to long-term debt, reflecting the Company's intention
to refinance this amount during the 12-month period following the balance sheet
date through either continued short-term borrowing or utilization of available
revolving bank credit facilities.
During 1996 the Company filed a shelf registration statement for $300
million of medium-term notes. During the first six months of this year, $50
million of five-year notes were issued at an average interest rate of 5.74%.
During the third quarter of 1996, the Company did not issue any notes under the
registration statement.
In December 1995, the Company issued DECS(SM) (Debt Exchangeable for
Common Stock) which, at maturity, are mandatorily exchangeable into shares of
Wyman-Gordon Company ("Wyman-Gordon") common stock or, at the Company's option,
into cash in lieu of shares. The DECS are a hedge of the Company's investment
in Wyman-Gordon common stock and will result in the Company realizing an
after-tax gain of $100.6 million at maturity of the DECS. This unrealized gain,
plus any additional appreciation of the investment in Wyman-Gordon common stock
since the issuance of the DECS, is included in shareholders' equity as an
unrealized gain on investments in marketable equity securities, net of tax, at
September 30, 1996. At September 30, 1996 the Company's long-term debt includes
an increase of $102.6 million which represents the increase in the market value
of the Wyman-Gordon common stock exchangeable into the DECS during the nine
months ended September 30, 1996. The offset to the debt increase, net of tax,
which is included in shareholders' equity, decreased the unrealized gain on
investments in marketable equity securities, also included in shareholders'
equity.
- 6 -
<PAGE> 7
Note 5. Net Income Per Common Share
Primary and fully diluted net income per Common share is computed
based on the following information:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-------------------------- --------------------------
1996 1995 1996 1995
----------- ----------- ----------- -----------
PRIMARY: (millions)
<S> <C> <C> <C> <C>
Net income . . . . . . . . . . . . . . . . . . . . $ 77.3 $ 69.3 $ 227.7 $ 20.8
=========== =========== =========== ===========
Average Common shares and
Common share equivalents . . . . . . . . . . . . 107.6 107.4 107.5 113.4
=========== =========== =========== ===========
FULLY DILUTED: (1)
Net income . . . . . . . . . . . . . . . . . . . . $ 77.3 $ 69.3 $ 227.7 $ 20.8
Interest expense related to the 7.05% Convertible
Subordinated Debentures, net of tax 7.3 7.3 21.9 21.9
----------- ----------- ----------- -----------
Net income applicable to Common stock . . . . . . . $ 84.6 $ 76.6 $ 249.6 $ 42.7
=========== =========== =========== ===========
Average Common shares and
Common share equivalents 107.8 107.4 107.8 113.4
Additional shares assuming conversion
of the 7.05% Convertible Subordinated
Debentures . . . . . . . . . . . . . . . . . . . 16.7 16.7 16.7 16.7
----------- ----------- ----------- -----------
Average Common shares and Common
share equivalents . . . . . . . . . . . . . . . 124.5 124.1 124.5 130.1
=========== =========== =========== ===========
</TABLE>
(1) The 1995 fully diluted income per Common share from continuing
operations is computed based on $76.6 million and $229.3 million of
income applicable to Common stock for the three months and nine months
ended September 30, 1995, respectively, and 124.1 million and 130.1
million average Common shares and Common share equivalents for the
three months and nine months ended September 30, 1995, respectively.
The 1995 year-to-date calculation of fully diluted net income is
antidilutive, therefore the primary net income per Common share is
reflected as the fully diluted net income per share.
- 7 -
<PAGE> 8
Note 6. Industry Segment Revenues
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------------- ---------------------------
1996 1995 1996 1995
------------ ------------ ------------ ------------
(millions)
<S> <C> <C> <C> <C>
Electrical Products . . . . . . . . . . . . . . . . $ 613.2 $ 522.7 $ 1,799.0 $ 1,538.8
Tools & Hardware . . . . . . . . . . . . . . . . . 237.2 233.1 718.6 705.1
Automotive Products . . . . . . . . . . . . . . . . 465.1 435.5 1,459.7 1,327.1
------------ ------------ ------------ ------------
$ 1,315.5 $ 1,191.3 $ 3,977.3 $ 3,571.0
============ ============ ============ ============
</TABLE>
Note 7. Nonrecurring Charges
During the third quarter of 1996 the Company completed a strategic
review of its automotive brake business, resulting in a write-down of
approximately 21% of the long-lived assets of the business. The Wagner brake
product lines, acquired as part of the McGraw-Edison acquisition in 1985, have
been subjected to intense competitive pricing over the last several years and
an anticipated profitability improvement during 1996 was not being realized.
As a result of the review of the Wagner brake products, the Company is
replacing Wagner technology with technology acquired through the fourth quarter
1994 acquisition of Abex Friction Products. Based on the strategic review, the
Company concluded that the projected undiscounted cash flows of certain Wagner
product lines would not recover the carrying value of the long-lived assets and
goodwill associated with these product lines. Accordingly, the Company
recorded in the third quarter ended September 30, 1996 an $85.3 million
write-down, including $31.5 million in goodwill.
The write-down will reduce annual depreciation and amortization costs
equivalent to approximately $.03 per share. However, the Company will incur
expense executing its revised brake strategy, which could offset some of the
benefit of the reduced depreciation and amortization. The sale of marketable
equity securities (See Note 3 of Notes to Consolidated Financial Statements)
offset the charge for the write-down resulting in an insignificant impact on
net income and earnings per share for the third quarter.
The Company is continuing to strategically review product lines and
geographic manufacturing and distribution which could result in future charges
in the Automotive Products and Tools & Hardware segments. The Company engaged
an investment banking firm in the third quarter of 1996 to evaluate the
possible sale or strategic realignment of its Kirsch window treatment division.
The Company anticipates finalizing the evaluation in the fourth quarter of 1996
or the first quarter of 1997. If the division is disposed of, the Company
anticipates a gain will be realized.
Note 8. Discontinued Operations
In September 1994, the Company announced its decision to establish its
Petroleum & Industrial Equipment segment as an independent, publicly traded
company, Cooper Cameron Corporation ("Cooper Cameron"), through an exchange
offer with the Company's Common shareholders. The exchange offer was completed
on June 30, 1995, at which time 9.5 million shares of the Company's Common
stock were exchanged for 85.5% of Cooper Cameron common stock.
- 8 -
<PAGE> 9
The Petroleum & Industrial Equipment segment split-off was accounted for as a
discontinued operation. In the second quarter of 1995, the Company recorded a
charge of $186.6 million to reflect the actual loss on the split-off of Cooper
Cameron.
Interest expense of $11.9 million on debt of $375 million through the
date of the completion of the exchange offer was allocated to the discontinued
operation. The interest rates utilized were the actual rates for borrowings
specifically identifiable with the respective businesses, with the Company's
average cost of commercial paper borrowing applied to the residual. Debt
allocated to the discontinued operation of $375 million was considered to be
fixed and related historically to the discontinued operation. Actual cash
provided by or utilized in the discontinued operation, including the payment by
the Company of all U.S. Federal, foreign and state and local income taxes
related to the discontinued operation, was provided by or used in the Company's
continuing operations such that the indebtedness of the discontinued operation
remained constant from year to year.
Note 9. Summary of Noncash Investing and Financing Activities
The following noncash transactions have been excluded from the
consolidated statements of cash flows:
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
------------------------------
1996 1995
------------- -------------
(in millions)
<S> <C> <C>
Assets acquired and liabilities assumed or incurred from the
acquisition of businesses:
Fair value of assets acquired . . . . . . . . . . . . . . . . . . . . $ 96.2 $ 17.6
Cash used to acquire businesses (1) . . . . . . . . . . . . . . . . . (72.2) (11.9)
------------- -------------
Liabilities assumed or incurred . . . . . . . . . . . . . . . . . . $ 24.0 $ 5.7
============= =============
Exchange of $1.60 Convertible Exchangeable Preferred Stock
into 7.05% Convertible Subordinated Debentures . . . . . . . . . . . . . . $ - $ 691.2
Retirement of Cooper Common shares exchanged for
Cooper Cameron Common shares . . . . . . . . . . . . . . . . . . . . . . $ - $ 427.5
</TABLE>
(1) An additional $163.6 million was paid during the first quarter of 1996
for the December 31, 1995 acquisition of CEAG.
- 9 -
<PAGE> 10
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations:
Three Months Ended September 30, 1996 Compared With Three Months Ended
September 30, 1995
Net income for the third quarter of 1996 increased 12% to $77.3 million
on revenues of $1.32 billion compared with 1995 net income of $69.3 million on
revenues of $1.19 billion. Third quarter fully diluted share earnings increased
10% to $.68 from $.62 in 1995. Excluding a $.04 gain from the sale of
marketable equity securities during the third quarter of 1995, fully diluted
share earnings increased 17%. During the quarter the Company realized an
after-tax gain of $66.0 million from the sale of marketable equity securities.
The sale of the marketable equity securities offset a nonrecurring charge in the
automotive segment to write-down the carrying value of certain assets (See Note
7 of Notes to Consolidated Financial Statements).
Revenues:
Revenues for the third quarter of 1996 increased 10% compared to the
third quarter of 1995. After excluding the effects of acquisitions and a
divestiture, revenues were up 5% over the third quarter of 1995. The continued
modest growth in industrial and construction markets and an improvement in the
automotive original equipment and domestic aftermarket contributed to the
revenue gains.
Revenues of the Electrical Products segment were up 17% from the third
quarter of 1995. Adjusted for recent acquisitions and a small divestiture,
revenues increased 8%. Sales of electrical construction materials, lighting
fixtures, transformers and distribution switchgear benefitted from continued
strength in North American industrial production and construction and
renovation activity. Strong worldwide demand for hazardous-duty electrical
construction materials led to the revenue increase. New product introductions
also added to revenues for the quarter.
Tools & Hardware segment revenues increased 2% compared to the third
quarter of 1995. Adjusted for a recent acquisition, revenues were up slightly.
Revenue gains realized from the growth in sales of assembly systems for the
automotive industry and an improving aerospace market were offset by slowing
demand in Europe for hand tools and window treatments. New product
introductions continue to strengthen the segment's market position.
Revenues in the Automotive Products segment increased 7% from the same
prior year period. Adjusted for the effects of recent acquisitions, revenues
in the Automotive Products segment were up 3% from last year. The improvement
reflected increased demand from original equipment manufacturers worldwide and
an improved domestic aftermarket across most product lines. Offsetting a
portion of the revenue gains were declines in domestic sales of heavy duty
brake components and temperature control products, and weaker European
aftermarket sales.
Income Before Income Taxes:
Income before income taxes, exclusive of a $107.2 million gain on the
sale of marketable equity securities and the $85.3 million asset write-down in
the Automotive Products segment, increased 12% to $131.5 million for the third
quarter of 1996, compared to $117.0 million for the same period of 1995. Cost
of sales, as a percentage of revenues, declined due to sales mix and the
- 10 -
<PAGE> 11
benefits of cost improvement programs. Selling and administrative expenses
increased as a percentage of revenues in the third quarter of 1996 compared to
the third quarter of 1995. Anticipated higher expenses associated with the
CEAG operation, additional costs related to the new distribution system at the
hand tools operation and added sales promotion and customer changeover expenses
in the automotive operations all contributed to the increase. Interest expense
declined $1.6 million from the same period of last year due to lower average
interest rates and debt levels.
Operating earnings of the Electrical Products segment reflected a
significant increase compared to the third quarter of 1995. Allowing for the
effects of the CEAG acquisition, a small product line acquisition and a small
divestiture, operating earnings were well above last year. This resulted from
the revenue increases in most major product lines and various cost reduction
actions, including the 1995 plant closing and distribution consolidation at the
Crouse-Hinds operations.
The Tools & Hardware segment's operating earnings were flat compared
to the same period last year. One small acquisition had a minor impact on the
segment's profitability. Flat sales, sales mix and carryover costs related to
a major warehouse and distribution conversion at the hand tools operation
offset improvements in the power tool and drapery hardware businesses.
Operating earnings of the Automotive Products segment, before the
nonrecurring charge of $85.3 million, were up compared to the same period last
year. After allowing for the impact of acquisitions, and excluding the
nonrecurring charge, operating earnings increased modestly over last year,
reflecting the increase in revenues.
Income Taxes:
The effective tax rate (income tax expense as a percentage of income
before income taxes) for the third quarter was 49.6%, compared to 40.8% for the
same quarter of 1995. The increase resulted primarily from the asset
write-down in the Automotive Products segment, which included a write-down of
goodwill that was non-deductible for income tax purposes. Excluding the gain
on the sale of marketable equity securities and the nonrecurring write-down,
the effective tax rate was approximately 41.2%.
Nine Months Ended September 30, 1996 Compared With Nine Months Ended September
30, 1995
Income from continuing operations for the first nine months of 1996
increased 10% to $227.7 million on revenues of $3.98 billion compared with 1995
income from continuing operations of $207.4 million on revenues of $3.57
billion. Fully diluted share earnings from continuing operations increased
14% to $2.00 per share compared to $1.76 per share in 1995. Income per common
share benefited from the Cooper Cameron Exchange Offer completed on June 30,
1995, which reduced shares outstanding by 9.5 million. During the first nine
months of 1996 the Company also continued to sell marketable equity securities,
resulting in a pretax gain of $127.6 million, which was more than offset by
certain nonrecurring expenses, including the automotive asset write-down,
announced plant consolidations, product line rationalization costs, corporate
severance costs, and environmental expenses.
- 11 -
<PAGE> 12
Revenues:
Revenues for the first nine months of 1996 increased 11% compared to
the first nine months of 1995. After excluding the effects of acquisitions and
divestitures, revenues were up 6% over the same period of 1995. The revenue
gain was driven by the continued modest growth of the domestic economy and
improvement in the worldwide automotive original equipment market and domestic
aftermarket.
Revenues of the Electrical Products segment were up 17% from the first
nine months of 1995. Adjusted for recent acquisitions and a small divestiture,
revenues increased 8%. Sales of electrical construction materials, lighting
fixtures and power distribution products benefitted from continued strength in
industrial production and commercial and industrial construction and renovation
activity. In addition, strong international demand for a number of the
segment's transformer and power management products contributed to the revenue
increase. New product introductions also added to revenues for the nine-month
period.
Tools & Hardware segment revenues increased 2% over the first nine
months of 1995. One small acquisition had a minor impact on segment revenues.
The continued strength of domestic industrial production and commercial,
industrial and residential construction has been beneficial to the power tools
and drapery hardware operations. However, slowing demand in the European
markets has limited sales growth of hand tools and drapery hardware products.
Revenues in the Automotive Products segment increased 10% from the
same prior year period. Adjusted for the effects of recent acquisitions,
revenues were up 7% from last year. Harsh winter weather and lean distributor
inventories boosted domestic aftermarket demand, especially for wiper blades
and ignition products earlier in the year. Product sales for the original
equipment market improved as a result of increased light vehicle production and
increased placement of products on new vehicle platforms.
Income Before Income Taxes:
Income before income taxes, exclusive of the third quarter 1996 gain
on the sale of marketable equity securities and the write-down in the
Automotive Products segment, increased 10% to $386.8 million for the first nine
months of 1996, compared to $351.6 million for the same period of 1995. Cost
of sales, as a percentage of revenues, remained the same as last year. The
anticipated lower margins associated with the CEAG acquisition completed on
December 31, 1995, revenue increases in lower margin transformer distribution
equipment and Automotive Products, and nonrecurring expenses recorded in the
first half of 1996 combined to reduce the leverage of the revenue increases on
operating earnings and other cost improvements. Selling and administrative
expenses increased, as a percentage of revenues, to 17% in the first nine
months of 1996 compared to 16% in the first nine months of 1995 as a result of
nonrecurring expenses, anticipated higher than average CEAG expenses and higher
selling and changeover costs in the automotive operations. Interest expense
declined $5 million from the same period of last year due to lower average
interest rates and debt levels.
- 12 -
<PAGE> 13
Operating earnings of the Electrical Products segment reflected an
increase compared to the first nine months of 1995. Allowing for the effects
of the CEAG acquisition, two small product line acquisitions and a small
divestiture, operating earnings were modestly ahead of last year. This
resulted from the growth in revenues from improvements in construction markets,
cost reduction efforts and a more favorable product line mix beginning in the
third quarter of 1996.
The Tools & Hardware segment's operating earnings were down compared
to the same period last year. One small acquisition had a minor impact on the
year-to-year results. The favorable impact from revenue increases was more than
offset by the effect of implementation costs incurred in the warehouse and
distribution system conversion at the hand tools operation, nonrecurring
expenses, and a slow European economy.
Excluding the impact of the third quarter write-down of certain
automotive assets, operating earnings of the Automotive Products segment were
up when compared to last year and flat after adjusting for acquisitions. The
additional earnings from an increase in segment revenues over last year was
more than offset by nonrecurring expenses recorded during the first two
quarters of 1996.
Income Taxes:
The effective tax rate (income tax expense as a percentage of income
before taxes) for the first nine months of 1996 was 44.3%, up from 41.0% in the
same period of 1995. The increase resulted primarily from the third quarter
asset write-down in the Automotive Products segment, which included a
write-down of goodwill that was not deductible for income tax purposes.
Excluding the gain on the sale of marketable equity securities and the
nonrecurring write-down, the effective tax rate increased slightly for the
first nine months of 1996 compared to 1995.
Liquidity and Capital Resources:
The Company's "operating working capital" (defined as receivables and
inventories less accounts payable and accrued liabilities, excluding the
effects of acquisitions, divestitures, and foreign currency translation)
increased $98.1 million during the first nine months of 1996 compared to a
decrease of $41.0 million in the first nine months of 1995. The higher level
of operating working capital resulted primarily from additions in response to
increased levels of business activity partially offset by increased turnover of
inventory.
During 1996, the Company filed a shelf registration statement for $300
million of medium-term notes. During the first six months of this year, $50
million of five-year notes were issued at an average interest rate of 5.74%.
During the third quarter of 1996, the Company did not issue any notes under the
registration statement.
During the quarter ended September 30, 1996, the Company sold
marketable equity securities, including its shares of Cooper Cameron
Corporation common stock. Year-to-date proceeds from the sales of marketable
securities were $204.0 million.
As discussed in Note 7 to the Consolidated Financial Statements, the
Company is strategically reviewing product lines and geographic manufacturing
and distribution which could result in future charges. The Company does not
anticipate that any actions resulting from these evaluations will require cash
outflows that would significantly affect liquidity and capital resources.
- 13 -
<PAGE> 14
Cash flows from operating activities during the first nine months of
1996 totalled $349 million. The cash flows from operating activities were used
to fund capital expenditures of $140 million and dividends of $107 million.
The remaining cash flows from operating activities and proceeds from the sales
of securities provided funding for a decrease in debt of $101 million and five
acquisitions totalling $236 million during the nine-month period. During the
first nine months of 1995, cash flows from operating activities of continuing
operations totalled $443 million. The cash flows from operating activities
were used to fund capital expenditures of $134 million, dividends of $126
million and discontinued operations of $48 million. In addition, debt was
reduced by $175 million.
In connection with acquisitions accounted for as purchases, the
Company records, to the extent appropriate, accruals for the costs of closing
duplicate facilities, severing redundant personnel and integrating the acquired
businesses into existing Company operations. Cash flows from operating
activities are reduced by the amounts expended against the various accruals
established in connection with each acquisition. Spending with respect to
these accruals was $3.6 million, $3.2 million and $4.1 million, respectively,
for the quarters ended September 30, 1996, June 30, 1996 and March 31, 1996.
Spending against these accruals for the quarters ended September 30, 1995, June
30, 1995 and March 31, 1995 was $10.6 million, $9.9 million and $9.8 million,
respectively. There were no significant additions to these accruals during the
first nine months of 1996.
At September 30, 1996, the Company's debt-to-total-capitalization
ratio was 52.6% compared to 54.5% at December 31, 1995. Excluding the DECS,
which at maturity are mandatorily exchangeable into shares of Wyman-Gordon
common stock or, at the Company's option, into cash in lieu of shares, the
Company's debt-to-total capitalization ratio was 48.3% at September 30, 1996
compared to 51.7% at December 31, 1995. The Company has targeted a 35-45%
debt-to-total- capitalization ratio and will continue utilizing excess cash
generated to reduce debt and consummate strategic acquisitions.
Backlog:
Sales backlog represents the dollar amount of all firm open orders for
which all terms and conditions pertaining to the sale have been approved such
that a future sale is reasonably expected. Sales backlog by segment was as
follows:
<TABLE>
<CAPTION>
September 30,
---------------------------
1996 1995
----------- -----------
(in millions)
<S> <C> <C>
Electrical Products . . . . . . . . . . . . . . . . . . . . . . . . . . $ 238.3 $ 232.7
Tools & Hardware . . . . . . . . . . . . . . . . . . . . . . . . . . . 93.6 82.9
Automotive Products . . . . . . . . . . . . . . . . . . . . . . . . . . 113.6 90.2
----------- -----------
$ 445.5 $ 405.8
=========== ===========
</TABLE>
- 14 -
<PAGE> 15
PART II - OTHER INFORMATION
Item 3. Legal Proceedings
The Company and certain of its current and former officers and
directors are named in a consolidated class action lawsuit, brought in the
United States District Court for the Southern District of Texas, Houston
Division, on behalf of all persons who purchased Cooper stock during the period
from February 1, 1993 through January 25, 1994. The case, which was filed on
January 26, 1994, is docketed in the court as Civil Action No. H-94-0280 and is
entitled Phillip Frank and Patricia Rankin, et al v. Cooper Industries, Inc.,
et al. The consolidated complaint alleges that the defendants, through certain
public statements, misled investors respecting (i) deterioration in certain of
the Company's markets and the demand for some of its products, and (ii) the
Company's anticipated performance in 1994. The key allegation in the
consolidated complaint appears to center around the Company's public
announcement in early 1994 that the deterioration in oil, gas and other energy
related markets could cause the Company's share earnings to decrease by as much
as 25 percent in 1994.
The consolidated complaint requests recovery of an unspecified amount
of damages. The case is proceeding through the discovery process. The Company
filed a Motion for Summary Judgement on October 15, 1996, which is pending. The
case is currently scheduled for trial in the December 1996 trial term. While
the ultimate liability, if any, that may result from this litigation cannot be
determined with certainty at this time, the Company believes that its
investigation of the facts to date has not revealed anything to support the
plaintiffs' claims.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3. Twenty-Sixth Amended Articles of Incorporation.
12. Computation of Ratios of Earnings to Fixed Charges
for the Calendar Years 1995 through 1991 and the Nine
Months Ended September 30, 1996 and 1995.
27. Financial Data Schedule.
(b) Reports on Form 8-K
The Company filed a report on Form 8-K on July 24, 1996, which
included a copy of a press release containing the Company's
financial results for the quarter ended June 30, 1996.
- 15 -
<PAGE> 16
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Cooper Industries, Inc.
-----------------------------------
(Registrant)
Date November 12, 1996 /s/ D. Bradley McWilliams
- ----------------------------------- -----------------------------------
D. Bradley McWilliams
Senior Vice President, Finance
Date November 12, 1996 /s/ Terry A. Klebe
- ----------------------------------- -----------------------------------
Terry A. Klebe
Vice President and Controller
and Chief Accounting Officer
- 16 -
<PAGE> 17
Exhibit Index
Exhibit No.
3. Twenty-Sixth Amended Articles of Incorporation.
12. Computation of Ratios of Earnings to Fixed Charges for the
Calendar Years 1995 through 1991 and the Nine Months Ended
September 30, 1996 and 1995.
27. Financial Data Schedule.
- 17 -
<PAGE> 1
EXHIBIT 3
TWENTY-SIXTH AMENDED ARTICLES OF INCORPORATION
OF
COOPER INDUSTRIES, INC.
ARTICLE I
NAME
The name of the Corporation shall be COOPER INDUSTRIES, INC.
ARTICLE II
PRINCIPAL OFFICE IN OHIO
The place in Ohio where the principal office of the Corporation is to
be located as provided in the Ohio Revised Code, Section 1701.04, is Cleveland
in Cuyahoga County.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code, as now in effect or hereafter
amended.
ARTICLE IV
AUTHORIZED SHARES
The authorized number of shares of the Corporation shall consist of
1,340,750 shares of Preferred Stock with no par value (hereinafter called
"Preferred Stock"), 2,821,079 shares of Preferred Stock par value $1.00 per
share (hereinafter called "Preferred Stock ($1 par)"), 10,000,000 shares of
Preferred Stock par value $2.00 per share (hereinafter called "$2.00 Par
Preferred Stock") and 250,000,000 shares of Common Stock par value $5.00 per
share (hereinafter called "Common Stock"). No holder of shares of any class
of stock of the Corporation shall as such holder have any preemptive right to
purchase shares of any class of stock of the Corporation or shares or other
securities convertible into or exchangeable for or carrying rights or options
to purchase shares of any class of stock of the Corporation, whether such class
of stock, shares or other securities are now or hereafter authorized, which at
any time may be proposed to be issued by the Corporation or subjected to rights
or options to purchase granted by the Corporation. Except as otherwise
specifically provided in this Article IV, any action to be taken by the
shareholders of the Corporation under Sections 1701.01 to 1701.98, inclusive,
of the Ohio Revised Code which would require the affirmative vote of two-thirds
of the voting power unless otherwise provided in the Corporation's Articles of
Incorporation, may be taken by the affirmative vote of a majority of the voting
power of the Corporation.
1
<PAGE> 2
A. TERMS OF PREFERRED STOCK
The Shares of Preferred Stock shall have the following express terms:
SECTION 4.1A--Issue in Series--Terms to be Fixed by Directors--The
Preferred Stock may be issued from time to time in one or more series. All
shares of Preferred Stock shall be of equal rank and shall be identical, except
in respect of the matters that may be fixed by the Board of Directors as
hereinafter provided, and each share of each series shall be identical with all
other shares of such series, except as to the date from which dividends are
cumulative. Subject to the provisions of Sections 4.2A to 4.8A, both
inclusive, which provisions shall apply to all Preferred Stock, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more
series and with respect to each such series prior to the issuance thereof to
fix:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board
of Directors may (except where otherwise provided in the creation of
the series) increase or decrease (but not below the number of shares
thereof then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of
the series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in
the event of any liquidation, dissolution or winding up of the affairs
of the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which
such conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6A(b) and 4.6A(c)) on the issuance of shares of any class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with respect to
each such series, the matters described in clauses (a) to (i), both inclusive,
of this Section 4.1A.
SECTION 4.2A--Dividends--The holders of Preferred Stock of each
series, in preference to the holders of Common Stock and of any other class of
shares ranking junior to the Preferred Stock, shall be entitled to receive out
of any funds legally available and when and as declared by the Board of
Directors dividends in cash at the rate for such series fixed in accordance
with the provisions of Section 4.1A and no more, payable quarterly on the dates
fixed for such series. Such dividends shall be cumulative, in the case of
shares of each particular series, from and after the date or dates fixed with
respect to such series. No dividends may be paid upon or declared or set apart
for any of the Preferred Stock for any
2
<PAGE> 3
quarterly dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratable in proportion to the respective
annual dividend rates fixed therefor, shall be paid upon or declared or set
apart for all Preferred Stock of all series then issued and outstanding and
entitled to receive such dividend.
SECTION 4.3A--Dividends on Junior Stock--In no event so long as any
Preferred Stock shall be outstanding shall any dividends, except a dividend
payable in Common Stock or other shares ranking junior to the Preferred Stock,
be paid or declared or any distribution be made on the Common Stock or any
other shares ranking junior to the Preferred Stock, nor shall any Common Stock
or any other shares ranking junior to the Preferred Stock be purchased, retired
or otherwise acquired by the Corporation (except out of the proceeds of the
sale of Common Stock or other shares ranking junior to the Preferred Stock):
(a) unless all accrued and unpaid dividends on Preferred
Stock, including the full dividends for the current quarterly
dividend period, shall have been declared and paid or a sum sufficient
for payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of Preferred Stock of any series from any sinking fund
provided for shares of such series in accordance with the provisions of
Section 4.1A.
SECTION 4.4A--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6A(b)(iii), the Corporation may from
time to time redeem all or any part of the Preferred Stock of any series at the
time outstanding (i) at the option of the Board of Directors at the applicable
redemption price for such series fixed in accordance with the provisions of
Section 4.1A or (ii) in fulfillment of the requirements of any sinking fund
provided for shares of such series at the applicable sinking fund redemption
price, fixed in accordance with the provisions of Section 4.1A, together in
each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Preferred Stock to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less
than thirty (30) days nor more than sixty (60) days prior to the date fixed for
such redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of Preferred Stock to be redeemed with any bank or trust company,
having capital and surplus of more than Five Million Dollars ($5,000,000),
named in such notice, directed to be paid to the respective holders of the
shares of Preferred Stock so to be redeemed, in amounts equal to the redemption
price of all shares of Preferred Stock so to be redeemed, on surrender of the
stock certificate or certificates held by such holders, and upon the making of
such deposit such holders shall cease to be shareholders with respect to such
shares, and after such notice shall have been given and such deposit shall have
been made such holders shall have no interest in or claim against the
Corporation with respect to such shares except only to receive such money from
such bank or trust company without interest or the right to exercise, before
the redemption date, any unexpired privileges of conversion. In case less
than all of the outstanding shares of Preferred Stock are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed in such manner as
shall be prescribed by its Board of Directors. If the holders of shares of
Preferred Stock which shall
3
<PAGE> 4
have been called for redemption shall not, within ten years after such deposit,
claim the amount deposited for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the Corporation such unclaimed amounts
and thereupon such bank or trust company and the Corporation shall be relieved
of all responsibility in respect thereof and to such holders.
(c) Any shares of Preferred Stock which are redeemed by the
Corporation pursuant to the provisions of this Section 4.4A and any shares of
Preferred Stock which are purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series and any shares of
Preferred Stock which are converted in accordance with the express terms
thereof shall be cancelled and not reissued. Any shares of Preferred Stock
otherwise acquired by the Corporation shall resume the status of authorized and
unissued shares of Preferred Stock without serial designation.
SECTION 4.5A--Liquidation--(a) The holders of Preferred Stock of any
series shall, in case of any liquidation, dissolution or winding up of the
affairs of the Corporation be entitled to receive in full out of the assets of
the Corporation, including its capital, before any amount shall be paid or
distributed among the holders of the Common Stock or any other shares ranking
junior to the Preferred Stock the amounts fixed with respect to shares of such
series in accordance with Section 4.1A. In case the net assets of the
Corporation legally available therefor are insufficient to permit the payment
upon all outstanding shares of Preferred Stock of the full preferential amount
to which they are respectively entitled, then such net assets shall be
distributed ratably upon outstanding shares of Preferred Stock in proportion
to the full preferential amount to which each such share is entitled. After
payment to holders of Preferred Stock of the full preferential amounts as
aforesaid, holders of Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the
sale, lease or conveyance of all or substantially all the property or business
of the Corporation, shall not be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes of this Section 4.5A.
SECTION 4.6A-- Voting--(a) The holders of Preferred Stock shall be
entitled to one vote for each share of such stock upon all matters presented
to the shareholders; and, except as otherwise provided herein or required by
law, the holders of Preferred Stock and the holders of Common Stock shall vote
together as one class on all matters. If, and so often as, the Corporation
shall be in default in the payment of six (6) full quarterly dividends
(whether or not consecutive) on any series of Preferred Stock at the time
outstanding, whether or not earned or declared, the holders of Preferred Stock
of all series, voting separately as a class and in addition to all other rights
to vote for Directors, shall be entitled to elect, as herein provided, two (2)
members of the Board of Directors of the Corporation who shall be in addition
to the regular members of the Board of Directors elected by the common
shareholders pursuant to the Corporation's Code of Regulations; provided,
however, that the holders of shares of Preferred Stock shall not have or
exercise such special class voting rights except at meetings of the
shareholders for the election of Directors at which the holders of not less
than thirty-five percent (35%) of the outstanding shares of
4
<PAGE> 5
Preferred Stock of all series then outstanding are present in person or by
proxy; and provided further that the special class voting rights provided for
herein when the same shall have become vested shall remain so vested until all
accrued and unpaid dividends on the Preferred Stock of all series then
outstanding shall have been paid, whereupon the number of persons constituting
the Board of Directors shall be reduced by the number of Directors then in
office elected pursuant to this Section, the term of office of said Directors
so elected shall end, and the holders of Preferred Stock shall be divested of
their special class voting rights in respect of subsequent elections of
Directors, subject to the revesting of such special class voting rights in the
event hereinabove specified in this paragraph. A vacancy in the class of
Directors elected pursuant to this Section shall be filled by the remaining
Director of the class and the Code of Regulations in effect at the time of
filing of these terms and provisions is hereby amended to the extent it is
inconsistent herewith. In the event of default entitling the holders of
Preferred Stock to elect two (2) Directors as above specified, a special
meeting of the shareholders for the purpose of electing such Directors shall be
called by the Secretary of the Corporation upon written request of, or may be
called by, the holders of record of at least ten percent (10%) of the shares of
Preferred Stock of all series at the time outstanding, and notice thereof
shall be given in the same manner as that required for the annual meeting of
shareholders; provided, however, that the Corporation shall not be required to
call such special meeting if the annual meeting of shareholders shall be held
within ninety (90) days after the date of receipt of the foregoing written
request from the holders of Preferred Stock. At any meeting at which the
holders of Preferred Stock shall be entitled to elect Directors, the holders
of thirty-five percent (35%) of the then outstanding shares of Preferred Stock
of all series, present in person or by proxy, shall be sufficient to constitute
a quorum, and the vote of the holders of a majority of such shares so present
at any such meeting at which there shall be such a quorum shall be sufficient
to elect the members of the Board of Directors which the holders of Preferred
Stock are entitled to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds (2/3)
of the shares of Preferred Stock at the time outstanding, given in person or by
proxy at a meeting called for the purpose at which the holders of Preferred
Stock shall vote separately as a class, shall be necessary to effect any one or
more of the following (but so far as the holders of Preferred Stock are
concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the
provisions of the Amended Articles of Incorporation or of the
Regulations of the Corporation which affects adversely the voting
powers, rights or preferences of the holders of Preferred Stock;
provided, however, that, for the purposes of this clause only, neither
the amendment of the Amended Articles of Incorporation so as to
authorize or create, or to increase the authorized or outstanding
amount of, Preferred Stock or of any shares of any class ranking on a
parity with or junior to the Preferred Stock, nor the amendment of
the provisions of the Regulations so as to increase the number of
Directors of the Corporation shall be deemed to affect adversely the
voting powers, rights or preferences of the holders of Preferred
Stock; and provided further, that if such amendment, alteration or
repeal affects adversely the rights or preferences of one or more but
not all series of Preferred Stock at the time outstanding, only the
affirmative vote of the
5
<PAGE> 6
holders of at least two-thirds (2/3) of the number of the shares at
the time outstanding of the series so affected shall be required;
(ii) the authorization or creation of, or the increase in the
authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the Preferred
Stock; or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Preferred Stock then outstanding
except in accordance with a stock purchase offer made to all holders
of record of Preferred Stock, unless all dividends upon all Preferred
Stock then outstanding for all previous quarterly dividend periods
shall have been declared and paid or funds therefor set apart and all
accrued sinking fund obligations applicable thereto shall have been
complied with.
(c) the affirmative vote of the holders of at least a majority of the
shares of Preferred Stock at the time outstanding, given in person or by proxy
at a meeting called for the purpose at which the holders of Preferred Stock
shall vote separately as a class, shall be necessary to effect any one or more
of the following (but so far as the holders of Preferred Stock are concerned,
such action may be effected with such vote):
(i) The sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation
with or merger into any other corporation unless the corporation
resulting from such consolidation or merger will have after such
consolidation or merger no class of shares either authorized or
outstanding ranking prior to or on a parity with the Preferred Stock
except the same number of shares ranking prior to or on a parity with
the Preferred Stock and having the same rights and preferences as the
shares of the Corporation authorized and outstanding immediately
preceding such consolidation or merger, and each holder of Preferred
Stock immediately preceding such consolidation or merger shall receive
the same number of shares, with the same rights and preferences, of
the resulting corporation; or
(ii) The authorization of any shares ranking on a parity with
the Preferred Stock or an increase in the authorized number of shares
of Preferred Stock.
SECTION 4.7A--Preemptive Rights--The holders of Preferred Stock shall
have no preemptive right to purchase or have offered to them for purchase any
shares or other securities of the Corporation, whether now or hereafter
authorized.
SECTION 4.8A--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the Preferred Stock" or "on a parity with the
Preferred Stock", such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an equality with (as the case
may be), the rights of the holders of Preferred Stock; and whenever reference
is made to shares "ranking junior to the Preferred Stock", such reference shall
mean and include all shares of the Corporation in respect of which the rights
of the holders thereof as to the payment of dividends and as to distributions
in the event of a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation are junior and subordinate to the
6
<PAGE> 7
rights of the holders of Preferred Stock. The Preferred Stock ($1 par) shall
rank on a parity with the Preferred Stock and the $2.00 Par Preferred Stock.
B. EXPRESS TERMS OF THE SERIES A PARTICIPATING PREFERRED STOCK
SECTION 4.1B--Designation and Amount--The shares of such series shall
be designated as "Series A Preferred Stock" and the number of shares
constituting such series shall initially be 800,000, no par value, such number
of shares to be subject to increase or decrease by action of the Board of
Directors.
SECTION 4.2B--Dividends and Distributions--(a) Subject to the prior
and superior rights of the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of Series A Participating
Preferred Stock with respect to dividends, the holders of shares of Series A
Participating 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, quarterly dividends payable in cash on the last day of March, June,
September and December 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 A Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10.00 or (b) 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 noncash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, par value $5.00 per share, of the
Corporation (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 A
Participating Preferred Stock. In the event the Corporation shall at any time
after February 17, 1987 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Participating Preferred Stock were entitled immediately
prior to such event under clause (b) 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.
(b) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (a) above
concurrently with its declaration of a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
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 $10.00 per
share of the Series A Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
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(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case 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 A Participating Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Participating 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 A Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than thirty (30) days prior to the date
fixed for the payment thereof.
SECTION 4.3B--Voting Rights--The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(a) The holders of Preferred Stock shall be entitled to one
vote for each share of such stock upon all matters presented to the
shareholders; and, except as otherwise provided herein or required by
law, the holders of Preferred Stock and the holders of Common Stock
shall vote together as one class on all matters. If, and so often as,
the Corporation shall be in default in the payment of six (6) full
quarterly dividends (whether or not consecutive) on any series of
Preferred Stock at the time outstanding, whether or not earned or
declared, the holders of Preferred Stock of all series, voting
separately as a class and in addition to all other rights to vote for
directors, shall be entitled to elect, as herein provided, two (2)
members of the Board of Directors of the Corporation who shall be in
addition to the regular members of the Board of Directors elected by
the common shareholders pursuant to the Corporation's Code of
Regulations; provided, however, that the holders of shares of
Preferred Stock shall not have or exercise such special class voting
rights except at meetings of the shareholders for the election of
Directors at which the holders of not less than thirty-five percent
(35%) of the outstanding shares of Preferred Stock of all series then
outstanding are present in person or by proxy; and provided further
that the special class voting rights provided for herein when the same
shall have become vested shall remain so vested until all accrued and
unpaid dividends on the Preferred Stock of all series then outstanding
shall have been paid, whereupon the number of persons constituting the
Board of Directors shall be reduced by the number of Directors then in
office elected pursuant to this Section, the term of office of said
Directors so elected shall end, and the holders of Preferred Stock
shall be divested of their special class voting rights in respect of
subsequent elections of directors, subject to the revesting of such
special class voting rights in the event hereinabove specified in this
paragraph. A vacancy in the class of Directors elected pursuant to
this Section shall be filled by the remaining Director or the class
and the Code of Regulations in effect at the time of filing of these
terms and provisions
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is hereby amended to the extent it is inconsistent herewith. In the
event of default entitling the holders of Preferred Stock to elect two
(2) Directors as above specified, a special meeting of the
shareholders for the purpose of electing such Directors shall be
called by the Secretary of the Corporation upon written request of,
or may be called by, the holders of record of at least ten percent
(10%) of the shares of Preferred Stock of all series at the time
outstanding, and notice thereof shall be given in the same manner as
that required for the annual meeting of shareholders; provided,
however, that the Corporation shall not be required to call such
special meeting if the annual meeting of shareholders shall be held
within ninety (90) days after the date of receipt of the foregoing
written request from the holders of Preferred Stock. At any meeting
at which the holders of Preferred Stock shall be entitled to elect
Directors, the holders of thirty-five percent (35%) of the then
outstanding shares of Preferred Stock of all series, present in person
or by proxy shall be sufficient to constitute a quorum, and the vote
of the holders of a majority of such shares so present at any such
meeting at which there shall be such a quorum shall be sufficient to
elect the members of the Board of Directors which the holders of
Preferred Stock are entitled to elect as hereinabove provided.
SECTION 4.4B--Certain Restrictions--(a) Whenever quarterly dividends
or other dividends or distributions payable on the Series A Participating
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series A Participating Preferred Stock outstanding shall have been
paid in full, the Corporation 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 Participating
Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the
Series A Participating Preferred Stock, except dividends paid ratably
on the Series A Participating 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;
(iii) purchase or otherwise acquire for consideration any
shares of Series A Participating 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
annual dividend rates and other rights and preferences of the series,
shall determine in good faith will result in fair and equitable
treatment to the holders of such series.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section
4.4B, purchase or otherwise acquire such shares at such time and in such
manner.
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SECTION 4.5B--Reacquired Shares--Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired promptly after the acquisition thereof.
SECTION 4.6B--Liquidation, Dissolution or Winding Up--(a) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Participating Preferred Stock shall
have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference").
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Participating Preferred Stock then
such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences.
SECTION 4.7B--No Redemption--The shares of Series A Participating
Preferred Stock shall not be redeemable.
SECTION 4.8B--Ranking--The Series A Participating Preferred Stock
shall rank equal to all other series of the Corporation's Preferred Stock as
to the payment of dividends and the distribution of assets.
SECTION 4.9B--Amendment--The Restated Articles of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds (2/3) or more of the outstanding
shares of the Series A Participating Preferred Stock, voting separately as a
class.
SECTION 4.1OB--Fractional Shares--Series A Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Participating Preferred Stock.
C. TERMS OF PREFERRED STOCK ($1 Par)
The shares of Preferred Stock ($1 par) shall have the following
express terms:
SECTION 4.1C--Issue in Series--Terms to be Fixed by Directors--The
Preferred Stock ($1 par) may be issued from time to time in one or more
series. All shares of Preferred Stock shall be of equal rank and shall be
identical, except in respect of the matters that may be fixed by the Board of
Directors as hereinafter provided, and each share of each series shall be
identical with all other shares of such series, except as to the date from
which dividends are cumulative. Subject to the provisions of Sections 4.2C to
4.8C, both inclusive, which provisions shall apply to all Preferred Stock ($1
par), the Board of Directors hereby
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is authorized to cause such shares to be issued in one or more series and with
respect to each such series prior to the issuance thereof to fix:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board
of Directors may (except where otherwise provided in the creation of
the series) increase or decrease (but not below the number of shares
thereof then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of
the series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in
the event of any liquidation, dissolution or winding up of the
affairs of the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which
such conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6C(b) and 4.6C(c)) on the issuance of shares of any class or series.
The Board of Directors is authorized to adopt from time to time amendments to
the Articles of Incorporation fixing or changing, with respect to each such
series, the matters described in clauses (a) to (i), both inclusive, of this
Section 4.1C.
SECTION 4.2C--Dividends--The holders of Preferred Stock ($1 par) of
each series, in preference to the holders of Common Stock and of any other
class of shares ranking junior to the Preferred Stock ($1 par), shall be
entitled to receive out of any funds legally available and when and as declared
by the Board of Directors dividends in cash at the rate for such series fixed
in accordance with the provisions of Section 4.1C and no more, payable
quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after
the date or dates fixed with respect to such series. No dividends may be paid
upon or declared or set apart for any of the Preferred Stock ($1 par) for any
quarterly dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratable in proportion to the respective
annual dividend rates fixed therefor, shall be paid upon or declared or set
apart for all Preferred Stock ($1 par) of all series then issued and
outstanding and entitled to receive such dividend.
SECTION 4.3C--Dividends on Junior Stock--In no event so long as any
Preferred Stock ($1 par) shall be outstanding shall any dividends, except a
dividend payable in Common Stock or other shares ranking junior to the
Preferred Stock ($1 par) be paid or declared or any distribution be made on the
Common Stock or any other shares ranking
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junior to the Preferred Stock ($1 par) be purchased, retired or otherwise
acquired by the Corporation (except out of the proceeds of the sale of Common
Stock or other shares ranking junior to the Preferred Stock ($1 par)):
(a) unless all accrued and unpaid dividends on Preferred Stock
($1 par), including the full dividends for the current quarterly
dividend period, shall have been declared and paid or a sum
sufficient for payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of Preferred Stock ($1 par) of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 4.1C.
SECTION 4.4C--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6C(b)(iii), the Corporation may from
time to time redeem all or any part of the Preferred Stock ($1 par) of any
series at the time outstanding (i) at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 4.1C or (ii) fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price, fixed in accordance with the provisions of Section 4.1C,
together in each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of Preferred Stock ($1 par) to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less
than thirty (30) days nor more than sixty (60) days prior to the date fixed for
such redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
shares of Preferred Stock ($1 par) to be redeemed with any bank or trust
company, having capital and surplus of more than Five Million Dollars
($5,000,000), named in such notice, directed to be paid to the respective
holders of the shares of Preferred Stock ($1 par) so to be redeemed, in amounts
equal to the redemption price of all shares of Preferred Stock ($1 par) so to
be redeemed, on surrender of stock certificate or certificates held by such
holders, and upon the making of such deposit such holders shall cease to be
shareholders with respect to such shares, and after such notice shall have been
given and such deposit shall have been made, such holders shall have no
interest in or claim against the Corporation with respect to such shares except
only to receive such money from such bank or trust company without interest or
the right to exercise, before the redemption date, any unexpired privileges of
conversion. In case less than all of the outstanding shares of any series of
Preferred Stock ($1 par) is to be redeemed, the Corporation shall select by lot
the shares of the series so to be redeemed in such manner as shall be
prescribed by its Board of Directors. If the holders of shares of Preferred
Stock ($1 par) which shall have been called for redemption shall not, within
six (6) years after such deposit, claim the amount deposited for the redemption
thereof, any such bank or trust company shall, upon demand, pay over to the
Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and
to such holders.
(c) Any shares of Preferred Stock ($1 par) which are redeemed by the
Corporation pursuant to the provisions of this Section 4.4C and any shares of
Preferred Stock ($1 par) which are purchased and delivered in satisfaction of
any sinking fund requirements provided
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for shares of such series and any shares of Preferred Stock ($1 par) which are
converted in accordance with the express terms thereof shall be cancelled and
not reissued. Any shares of Preferred Stock ($1 par) otherwise acquired by the
Corporation shall resume the status of authorized and unissued shares of
Preferred Stock ($1 par) without serial designation.
SECTION 4.5C--Liquidation--(a) The holders of Preferred Stock ($1 par)
of any series shall, in case of any liquidation, dissolution or winding up of
the affairs of the Corporation, be entitled to receive in full out of the
assets of the Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Stock or any other shares
ranking junior to the Preferred Stock ($1 par) the amounts fixed with respect
to shares of such series in accordance with Section 4.1C. In case the net
assets of the Corporation legally available therefor are insufficient to permit
the payment upon all outstanding shares of Preferred Stock ($1 par) of the full
preferential amount to which they are respectively entitled, then such net
assets shall be distributed ratably upon outstanding shares of Preferred Stock
($1 par) in proportion to the full preferential amounts to which each such
share is entitled. After payment to holders of Preferred Stock ($1 par) of the
full preferential amounts as aforesaid, holders of Preferred Stock ($1 par) as
such shall have no right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5C.
SECTION 4.6C--Voting--(a) The holders of Preferred Stock ($1 par)
shall be entitled to one-tenth (1/10) vote for each share of such stock upon
all matters presented to the shareholders; and, except as otherwise provided
herein or required by law, the holders of Preferred Stock ($1 par) and the
holders of Preferred Stock, the holders of $2.00 Par Preferred Stock and the
holders of Common Stock shall vote together as one class on all matters. If,
and so often as, the Corporation shall be in default in the payment of six (6)
full quarterly dividends (whether or not consecutive) on any series of
Preferred Stock ($1 par) at the time outstanding, whether or not earned or
declared, the holders of Preferred Stock ($1 par) of all series, voting
separately as a class and in addition to all other rights to vote for
Directors, shall be entitled to elect, as herein provided, two (2) members of
the Board of Directors of the Corporation who shall be in addition to the
regular members of the Board of Directors elected by the common shareholders
and directors elected by the holders of any other class of shares, pursuant to
these Amended Articles of Incorporation or the Corporation's Code of
Regulations; provided, however, that the holders of shares of Preferred Stock
($1 par) shall not have or exercise such special class voting rights except at
meetings of the shareholders for the election of Directors at which the holders
of not less than thirty-five percent (35%) of the outstanding shares of
Preferred Stock ($1 par) of all series then outstanding are present in person
or by proxy; and provided further that the special class voting rights provided
for herein when the same shall have become vested shall remain so vested until
all accrued and unpaid dividends on the Preferred Stock ($1 par) of all series
then outstanding shall have been paid, whereupon the number of persons
constituting the Board of Directors shall be reduced by the number of Directors
then in
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office elected pursuant to this Section 4.6C, the term of office of said
Directors so elected shall end, and the holders of Preferred Stock ($1 par)
shall be divested of their special class voting rights in respect of subsequent
elections of Directors, subject to the revesting of such special class voting
rights in the event hereinabove specified in this paragraph. A vacancy in the
class of Directors elected pursuant to this Section 4.6C shall be filled by the
remaining Directors of the class and if no other Directors of the class are
then in office such vacancy shall be filled by the holders of Preferred Stock
($1 par) entitled to elect the class of directors. The Code of Regulations in
effect at the time of filing of these terms and provisions is hereby amended to
the extent it is inconsistent herewith. In the event of default entitling the
holders of Preferred Stock ($1 par) to elect two (2) Directors as above
specified, a special meeting of the shareholders for the purpose of electing
such Directors shall be called by the Secretary of the Corporation upon written
request of, or may be called by, the holders of record of at least ten percent
(10%) of the shares of Preferred Stock ($1 par) of all series at the time
outstanding, and notice thereof shall be given in the same manner as that
required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual
meeting of shareholders shall be held within ninety (90) days after the date of
receipt of the foregoing written request from the holders of Preferred Stock
($1 par). At any meeting at which the holders of Preferred Stock ($1 par) shall
be entitled to elect Directors, the holders of thirty-five percent (35%) of the
then outstanding shares of Preferred Stock ($1 par) of all series, present in
person or by proxy, shall be sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to elect the members of
the Board of Directors which the holders of Preferred Stock ($1 par) are
entitled to elect as hereinabove provided.
(b) The affirmative vote of the holders of at least two-thirds of the
shares of Preferred Stock ($1 par) at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of Preferred
Stock ($1 par) shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of Preferred Stock
($1 par) are concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the
provisions of the Amended Articles of Incorporation or of the
Regulations of the Corporation which affects adversely the voting
powers, rights or preferences of the holders of Preferred Stock ($1
par); provided, however, that, for the purposes of this clause only,
neither the amendment of the Amended Articles of Incorporation so as
to authorize or create, or to increase the authorized or outstanding
amount of, Preferred Stock ($1 par) or of any shares of any class
ranking on a parity with or junior to the Preferred Stock ($1 par),
nor the amendment of the provisions of the Regulations so as to
increase the number of Directors of the Corporation shall be deemed
to affect adversely the voting powers, rights or preferences of the
holders of Preferred Stock ($1 par); and provided further, that if any
amendment, alteration or repeal affects adversely the rights or
preferences of one or more but not all series of Preferred Stock ($1
par) at the time outstanding, only the affirmative vote of the
holders of at least two-thirds of the number of the shares at the time
outstanding of the series so affected shall be required;
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(ii) the authorization or creation of any class, or the
increase in the authorized amount of any shares of any class, or any
security convertible into shares of any class, ranking prior to the
Preferred Stock ($1 par); or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Preferred Stock ($1 par) then
outstanding except in accordance with a stock purchase offer made to
all holders of record of Preferred Stock ($1 par), unless all
dividends upon all Preferred Stock ($1 par) then outstanding for all
previous quarterly periods shall have been declared and paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
(c) The affirmative vote of the holders of at least a majority of the
shares of Preferred Stock ($1 par) at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of Preferred
Stock ($1 par) shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of Preferred Stock
($1 par) are concerned, such action may be effected with such vote):
(i) the sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation
with or merger into any other corporation unless the corporation
resulting from such consolidation or merger will have after such
consolidation or merger no class of shares either authorized or
outstanding ranking prior to or on a parity with the Preferred Stock
($1 par) except the same number of shares ranking prior to or on a
parity with the Preferred Stock ($1 par) and having the same rights
and preferences as the shares of the Corporation authorized and
outstanding immediately preceding such consolidation or merger, and
each holder of Preferred Stock ($1 par) immediately preceding such
consolidation or merger shall receive the same number of shares, with
the same rights and preferences, of the resulting corporation; or
(ii) the authorization of any shares ranking on a parity with
the Preferred Stock ($1 par) or an increase in the authorized number
of shares of Preferred Stock ($1 par).
SECTION 4.7C--Preemptive Rights--The holders of Preferred Stock ($1
par) shall have no preemptive right to purchase or have offered to them for
purchase or have offered them for purchase any shares or other securities of
the Corporation, whether now or hereafter authorized.
SECTION 4.8C--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the Preferred Stock ($1 par)" or "on a parity with the
Preferred Stock ($1 par)", such reference shall mean and include all shares of
the Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an equality with (as the
case may be) the rights of the holders of Preferred Stock ($1 par); and
whenever reference is made to shares "ranking junior to the Preferred Stock",
such reference shall mean and include all shares of the Corporation in respect
of which the rights of the holders thereof as to the payment of dividends and
as to distributions in the event of a voluntary or involuntary
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<PAGE> 16
liquidation, dissolution or winding up of the affairs of the Corporation are
junior and subordinate to the rights of the holders of Preferred Stock ($1
par). The Preferred Stock ($1 par) shall rank on a parity with the Preferred
Stock and the $2.00 Par Preferred Stock.
D. EXPRESS TERMS OF THE $1.60 CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
[EXPLANATORY NOTE: The Express Terms of the $1.60 Convertible
Exchangeable Preferred Stock were deleted following the redemption of said
$1.60 Preferred Stock on January 1, 1995.]
E. TERMS OF $2.00 PAR PREFERRED STOCK
The Shares of $2.00 Par Preferred Stock shall have the following
express terms:
SECTION 4.1E--Issue in Series--Terms to be fixed by Directors--The
$2.00 Par Preferred Stock may be issued from time to time in one or more
series. All shares of $2.00 Par Preferred Stock shall be of equal rank and
shall be identical, except in respect of the matters that may be fixed by the
Board of Directors as hereinafter provided, and each share of each series shall
be identical with all other shares of such series, except as to the date from
which dividends are cumulative. Subject to the provisions of Sections 4.2E to
4.8E, both inclusive, which provisions shall apply to all $2.00 Par Preferred
Stock, the Board of Directors hereby is authorized to cause such shares to be
issued in one or more series and with respect to each such series prior to the
issuance thereof to fix:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the
Board of Directors may (except where otherwise provided in the
creation of the series) increase or decrease (but not below the number
of shares thereof then outstanding);
(c) the dividend rate of the series;
(d) the dates of payment of dividends and the dates from which
dividends shall be cumulative;
(e) the redemption rights and price or prices for shares of
the series;
(f) sinking fund requirements, if any, for the purchase or
redemption of shares of the series;
(g) the liquidation price payable on shares of the series in
the event of any liquidation, dissolution or winding up of the affairs
of the Corporation;
(h) whether the shares of the series shall be convertible into
Common Stock, and, if so, the conversion price or prices, any
adjustments thereof, and all other terms and conditions upon which
such conversion may be made; and
(i) restrictions (in addition to those set forth in Sections
4.6E(b) and 4.6E(c)) on the issuance of shares of any class or series.
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The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with respect
to each such series, the matters described in clauses (a) to (i), both
inclusive, of this Section 4.1E.
SECTION 4.2E--Dividends--The holders of $2.00 Par Preferred Stock of
each series, in preference to the holders of Common Stock and of any other
class of shares ranking junior to the $2.00 Par Preferred Stock, shall be
entitled to receive out of any funds legally available and when and as declared
by the Board of Directors dividends in cash at the rate for such series fixed
in accordance with the provisions of Section 4.1E and no more, payable
quarterly on the dates fixed for such series. Such dividends shall be
cumulative, in the case of shares of each particular series, from and after,
the date or dates fixed with respect to such series. No dividends may be paid
upon or declared or set apart for any of the $2.00 Par Preferred Stock for any
quarterly dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratable in proportion to the respective
annual dividend rates fixed therefor, shall be paid upon or declared or set
apart for all $2.00 Par Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend.
SECTION 4.3E--Dividends on Junior Stock--In no event so long as any
$2.00 Par Preferred Stock shall be outstanding shall any dividends, except a
dividend payable in Common Stock or other shares ranking junior to the $2.00
Par Preferred Stock, be paid or declared or any distribution be made on the
Common Stock or any other shares ranking junior to the $2.00 Par Preferred
Stock, nor shall any Common Stock or any other shares ranking junior to the
$2.00 Par Preferred Stock be purchased, retired or otherwise acquired by the
Corporation (except out of the proceeds of the sale of Common Stock or other
shares ranking junior to the $2.00 Par Preferred Stock):
(a) unless all accrued and unpaid dividends on $2.00 Par
Preferred Stock, including the full dividends for the current
quarterly dividend period, shall have been declared and paid or a sum
sufficient for payment thereof set apart; and
(b) unless there shall be no arrearages with respect to the
redemption of $2.00 Par Preferred Stock of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 4.1E.
SECTION 4.4E--Redemption--(a) Subject to the express terms of each
series and to the provisions of Section 4.6E(b)(iii), the Corporation may from
time to time redeem all or any part of the $2.00 Par Preferred Stock of any
series at the time outstanding (i) at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 4.1E or (ii) in fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price, fixed in accordance with the provisions of Section 4.1E,
together in each case with accrued and unpaid dividends to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the $2.00 Par Preferred Stock to be redeemed at
their respective addresses then appearing on the books of the Corporation, not
less than thirty (30) days nor more than sixty (60) days prior to the date
fixed for such redemption. At any time before or after notice has been given
as above provided, the Corporation may deposit the aggregate
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<PAGE> 18
redemption price of the shares of $2.00 Par Preferred Stock to be redeemed with
any bank or trust company, having capital and surplus of more than Five Million
Dollars ($5,000,000), named in such notice, directed to be paid to the
respective holders of the shares of $2.00 Par Preferred Stock so to be
redeemed, in amounts equal to the redemption price of all shares of $2.00 Par
Preferred Stock so to be redeemed, on surrender of the stock certificate or
certificates held by such holders, and upon the making of such deposit such
holders shall cease to be shareholders with respect to such shares, and after
such notice shall have been given and such deposit shall have been made such
holders shall have no interest in or claim against the Corporation with respect
to such shares except only to receive such money from such bank or trust
company without interest or the right to exercise, before the redemption date,
any unexpired privileges of conversion. In case less than all of the
outstanding shares of any series of $2.00 Par Preferred Stock are to be
redeemed, the Corporation shall select by lot the shares of that series so to
be redeemed in such manner as shall be prescribed by its Board of Directors.
If the holders of shares of $2.00 Par Preferred Stock which shall have been
called for redemption shall not, within ten years after such deposit, claim the
amount deposited for the redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such unclaimed amounts and
thereupon such bank or trust company and the Corporation shall be relieved of
all responsibility in respect thereof and to such holders.
(c) Any shares of $2.00 Par Preferred Stock which are redeemed by the
Corporation pursuant to the provisions of this Section 4.4E and any shares of
$2.00 Par Preferred Stock which are purchased and delivered in satisfaction of
any sinking fund requirements provided for shares of such series and any shares
of $2.00 Par Preferred Stock which are converted in accordance with the express
terms thereof shall be cancelled and not reissued. Any shares of $2.00 Par
Preferred Stock otherwise acquired by the Corporation shall resume the status
of authorized and unissued shares of $2.00 Par Preferred Stock without serial
designation.
SECTION 4.5E--Liquidation--(a) The holders of $2.00 Par Preferred
Stock of any series shall, in case of any liquidation, dissolution or winding
up of the affairs of the Corporation be entitled to receive in full out of the
assets of the Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Stock or any other shares
ranking junior to the $2.00 Par Preferred Stock the amounts fixed with respect
to shares of such series in accordance with Section 4.1E. In case the net
assets of the Corporation legally available therefor are insufficient to
permit the payment upon all outstanding shares of $2.00 Par Preferred Stock of
the full preferential amount to which they are respectively entitled, then such
net assets shall be distributed ratably upon outstanding shares of $2.00 Par
Preferred Stock in proportion to the full preferential amount to which each
such share is entitled. After payment to holders of $2.00 Par Preferred Stock
of the full preferential amounts as aforesaid, holders of $2.00 Par Preferred
Stock as such shall have no right or claim to any of the remaining assets of
the Corporation.
(b) The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Section 4.5E.
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SECTION 4.6E--Voting--(a) The holders of $2.00 Par Preferred Stock
shall be entitled to one vote for each share of such stock upon all matters
presented to the shareholders; and, except as otherwise provided herein or
required by law, the holders of $2.00 Par Preferred Stock and the holders of
Preferred Stock, the holders of Preferred Stock ($1 par) and the holders of
Common Stock shall vote together as one class on all matters. If, and so often
as, the Corporation shall be in default in the payment of six (6) full
quarterly dividends (whether or not consecutive) on any series of $2.00 Par
Preferred Stock at the time outstanding, whether or not earned or declared,
the holders of $2.00 Par Preferred Stock of all series, voting separately as a
class and in addition to all other rights to vote for Directors, shall be
entitled to elect, as herein provided, two (2) members of the Board of
Directors of the Corporation who shall be in addition to the regular members of
the Board of Directors elected by the common shareholders and directors elected
by holders of any other class of shares pursuant to the Amended Articles of
Incorporation or the Corporation's Code of Regulations; provided, however, that
the holders of shares of $2.00 Par Preferred Stock shall not have or exercise
such special class voting rights except at meetings of the shareholders
for the election of Directors at which the holders of not less than thirty-five
percent (35%) of the outstanding shares of $2.00 Par Preferred Stock of all
series then outstanding are present in person or by proxy; and provided further
that the special class voting rights provided for herein when the same shall
have become vested shall remain so vested until all accrued and unpaid
dividends on the $2.00 Par Preferred Stock of all series then outstanding
shall have been paid, whereupon the number of persons constituting the Board of
Directors shall be reduced by the number of Directors then in office elected
pursuant to this Section, the term of office of said Directors so elected shall
end, and the holders of $2.00 Par Preferred Stock shall be divested of their
special class voting rights in respect of subsequent elections of Directors,
subject to the revesting of such special class voting rights in the event
hereinabove specified in this paragraph. A vacancy in the class of Directors
elected pursuant to this Section shall be filled by the remaining Director of
the class and the Code of Regulations in effect at the time of filing of these
terms and provisions is hereby amended to the extent it is inconsistent
herewith. In the event of default entitling the holders of $2.00 Par
Preferred Stock to elect two (2) Directors as above specified, a special
meeting of the shareholders for the purpose of electing such Directors shall be
called by the Secretary of the Corporation upon written request of, or may be
called by, the holders of record of at least ten percent (10%) of the shares of
$2.00 Par Preferred Stock of all series at the time outstanding, and notice
thereof shall be given in the same manner as that required for the annual
meeting of shareholders; provided, however, that the Corporation shall not be
required to call such special meeting if the annual meeting of shareholders
shall be held within ninety (90) days after the date of receipt of the
foregoing written request from the holders of $2.00 Par Preferred Stock. At
any meeting at which the holders of $2.00 Par Preferred Stock shall be entitled
to elect Directors, the holders of thirty-five percent (35%) of the then
outstanding shares of $2.00 Par Preferred Stock of all series, present in
person or by proxy, shall be sufficient to constitute a quorum, and the vote of
the holders of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to elect the members
of the Board of Directors which the holders of $2.00 Par Preferred Stock are
entitled to elect as hereinabove provided.
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<PAGE> 20
(b) The affirmative vote of the holders of at least two-thirds of the
shares of $2.00 Par Preferred Stock at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of $2.00 Par
Preferred Stock shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of $2.00 Par
Preferred Stock are concerned, such action may be effected with such vote):
(i) any amendment, alteration or repeal of any of the
provisions of the Amended Articles of Incorporation or of the
Regulations of the Corporation which affects adversely the voting
powers, rights or preferences of the holders of $2.00 Par Preferred
Stock; provided, however, that, for the purposes of this clause
only, (i) neither the amendment of the Amended Articles of
Incorporation so as to authorize or create, or to increase the
authorized or outstanding amount of, $2.00 Par Preferred Stock or of
any shares of any class ranking on a parity with or junior to the
$2.00 Par Preferred Stock, nor the amendment of the provisions of the
Regulations so as to increase the number of Directors of the
Corporation shall be deemed to affect adversely the voting powers,
rights or preferences of the holders of $2.00 Par Preferred Stock;
and provided further, that if such amendment, alteration or repeal
affects adversely the rights or preferences of one or more but not all
series of $2.00 Par Preferred Stock at the time outstanding, only the
affirmative vote of the holders of at least two-thirds (2/3) of the
number of the shares at the time outstanding of the series so affected
shall be required;
(ii) the authorization or creation of, or the increase in the
authorized amount of any shares of any class, or any security
convertible into shares of any class, ranking prior to the $2.00 Par
Preferred Stock; or
(iii) the purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the $2.00 Par Preferred Stock then
outstanding except in accordance with a stock purchase offer made to
all holders of record of $2.00 Par Preferred Stock, unless all
dividends upon all $2.00 Par Preferred Stock then outstanding for all
previous quarterly dividend periods shall have been declared and paid
or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.
(c) the affirmative vote of the holders of at least a majority of the
shares of $2.00 Par Preferred Stock at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders of $2.00 Par
Preferred Stock shall vote separately as a class, shall be necessary to effect
any one or more of the following (but so far as the holders of $2.00 Par
Preferred Stock are concerned, such action may be effected with such vote):
(i) The sale, lease or conveyance by the Corporation of all or
substantially all of its property or business, or its consolidation
with or merger into any other corporation unless the corporation
resulting from such consolidation or merger will have after such
consolidation or merger no class of shares either authorized or
outstanding ranking prior to or on a parity with the $2.00 Par
Preferred Stock except the same number of shares ranking prior to or
on a parity with the $2.00 Par Preferred Stock and having the same
rights and preferences as the shares of the Corporation authorized and
outstanding immediately preceding such consolidation or merger, and
each holder of $2.00 Par Preferred Stock immediately preceding such
consolidation or merger shall receive the
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<PAGE> 21
same number of shares, with the same rights and preferences, of the
resulting corporation; or
(ii) The authorization of any shares ranking on a parity with
the $2.00 Par Preferred Stock or an increase in the authorized number
of shares of $2.00 Par Preferred Stock.
SECTION 4.7E--Preemptive Rights--The holders of $2.00 Par Preferred
Stock shall have no preemptive right to purchase or have offered to them for
purchase any shares or other securities of the Corporation, whether now or
hereafter authorized.
SECTION 4.8E--Prior or Parity Stock--Whenever reference is made to
shares "ranking prior to the $2.00 Par Preferred Stock" or "on a parity with
the $2.00 Par Preferred Stock", such reference shall mean and include all
shares of the Corporation in respect of which the rights of the holders thereof
as to the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation are given preference over, or rank on an equality with (as
the case may be), the rights of the holders of $2.00 Par Preferred Stock; and
whenever reference is made to shares "ranking junior to the $2.00 Par Preferred
Stock", such reference shall mean and include all shares of the Corporation in
respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation are
junior and subordinate to the rights of the holders of $2.00 Par Preferred
Stock. The $2.00 Par Preferred Stock shall rank on a parity with the Preferred
Stock and the Preferred Stock ($1 par).
F. FAIR PRICE TO SHAREHOLDERS IN BUSINESS COMBINATIONS
SECTION 4.1F--The affirmative vote of the holders of not less than
eighty percent (80%) of the voting power of the Corporation shall be required
for the approval or authorization of any "Business Combination" (as hereinafter
defined); provided, however, that the eighty percent (80%) voting requirement
shall not be applicable, and the provisions of Ohio law and of these Articles
relating to the percentage of shareholder approval, if any, shall apply to any
such Business Combination if:
(a) The "Continuing Directors" of the Corporation (as
hereinafter defined) by a two-thirds vote have expressly approved the
Business Combination either in advance of or subsequent to the
acquisition of outstanding shares of Common Stock of the Corporation
that caused the Related Person involved in the Business Combination to
become a Related Person; or
(b) If the following conditions are satisfied:
(i) The aggregate amount of the cash and the
fair market value of the property, securities or other
consideration to be received in the Business Combination by
holders of the Common Stock of the Corporation, other than the
Related Person involved in the Business Combination, is not
less than the "Highest Per Share Price" (with appropriate
adjustments for recapitalizations, reclassifications, stock
splits, reverse stock splits and stock dividends) paid by the
Related Person
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in acquiring any of its holdings of the Corporation's Common
Stock, all as determined by two-thirds of the Continuing
Directors; and
(ii) A proxy statement complying with the
requirements of the Securities Exchange Act of 1934, as
amended, shall have been mailed at least 30 days prior to any
vote on the Business Combination, to all shareholders of the
Corporation for the purpose of soliciting shareholder
approval of the Business Combination. The proxy statement
shall contain at the front thereof, in a prominent place, the
position of the Continuing Directors as to the advisability
(or inadvisability) of the Business Combination and, if deemed
appropriate by two-thirds of the Continuing Directors, the
opinion of an investment banking firm selected by two-thirds
of the Continuing Directors as to the fairness of the terms
of the Business Combination, from the point of view of the
holders of the outstanding shares of capital stock of the
Corporation other than the Related Person involved in the
Business Combination.
SECTION 4.2F--For purposes of this Section F of Article IV: (a) The
term "Business Combination" means (i) any merger, consolidation or share
exchange of the Corporation or any of its subsidiaries into or with a Related
Person, in each case irrespective of which corporation or company is the
surviving entity; (ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition to or with a Related Person (in a single transaction or a
series of related transactions) of all or a Substantial Part (as hereinafter
defined) of the assets of the Corporation (including without limitation any
securities of a subsidiary) or a Substantial Part of the assets of any of its
subsidiaries; (iii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition to or with the Corporation or to or with any of its
subsidiaries (in a single transaction or series of related transactions) of all
or a Substantial Part of the assets of a Related Person; (iv) the issuance or
transfer of any securities of the Corporation or any of its subsidiaries by the
Corporation or any of its subsidiaries to a Related Person (other than an
issuance or transfer of securities which is effected on a pro rata basis to all
shareholders of the Corporation); (v) any reclassification of securities
(including any reverse stock split), recapitalization, or any other transaction
involving the Corporation or any of its subsidiaries, that would have the
effect of increasing the voting power of a Related Person; (vi) the adoption of
any plan or proposal for the liquidation or dissolution of the Corporation
proposed by or on behalf of a Related Person, and (vii) the entering into of
any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(b) The term "Related Person" shall mean any individual, corporation,
partnership or other person or entity other than the Corporation or any of its
subsidiaries which, as of the record date for the determination of shareholders
entitled to notice of and to vote on any Business Combination, or immediately
prior to the consummation of such transaction, together with its "Affiliates"
and "Associates" (as defined in Rule 12b-2 of the Regulations under the
Securities Exchange Act of 1934 as in effect at the date of the adoption of
this Section F of Article IV by the shareholders of the Corporation
(collectively and as so in effect, the "Exchange Act")), are "Beneficial
Owners" (as defined in Rule 13d-3 of the Exchange Act) in the aggregate of 20
percent or more of the outstanding shares of Common Stock of the Corporation,
and any Affiliate or Associate of any such individual,
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<PAGE> 23
corporation, partnership or other person or entity. Notwithstanding the
definition of "Beneficial Owners" in this subparagraph (b), any Common Stock of
the Corporation that any Related Person has the right to acquire pursuant to
any agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, shall be deemed beneficially owned by the Related Person.
(c) The term "Substantial Part" shall mean more than twenty percent
(20%) of the fair market value, as determined by two-thirds (2/3) of the
Continuing Directors, of the total consolidated assets of the Corporation and
its subsidiaries taken as a whole, as of the end of its most recent fiscal year
ending prior to the time the determination is being made.
(d) For the purposes of paragraph (b)(i) of Section 4.1F, in the event
of a Business Combination in which the Corporation is the surviving
corporation, the term "other consideration to be received" shall include,
without limitation, Common Stock or other capital stock of the Corporation
retained by shareholders of the Corporation other than Related Persons or
parties to such Business Combination.
(e) The term "Continuing Directors" shall mean a director who either
(i) was a member of the Board of Directors of the Corporation immediately prior
to the time that the Related Person involved in a Business Combination became a
Related Person, or (ii) was designated (before his or her initial election as
Director) as a Continuing Director by two-thirds of the then Continuing
Directors.
(f) A "Related Person" shall be deemed to have acquired a share of the
Common Stock of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to the shares owned by Affiliates,
Associates or other persons whose ownership is attributed to a Related Person
under the foregoing definition of Related Person, the price paid for said
shares shall be deemed to be the higher of (i) the price paid upon the
acquisition thereof by the Affiliate, Associate or other person or (ii) the
market price of the shares in question at the time when the Related Person
became the Beneficial Owner thereof.
(g) The term "Highest Per Share Price" as used in this Section F shall
mean the highest price determined by two-thirds of the Continuing Directors to
have been paid at any time by the Related Person for any share or shares of
Common Stock. In determining the Highest Per Share Price, all purchases by the
Related Person shall be taken into account regardless of whether the shares
were purchased before or after the Related Person became a Related Person. The
Highest Per Share Price shall include any brokerage commissions, transfer taxes
and soliciting dealers' fees paid by the Related Person with respect to the
shares of Common Stock of the Corporation acquired by the Related Person.
SECTION 4.3F--Any amendment, change or repeal of this Article IV,
Section F, or any other amendment of these Articles of Incorporation which
would have the effect of modifying or permitting circumvention of this Article
IV, Section F, shall require the favorable vote, at a meeting of the
shareholders of the Corporation, of the holders of at least eighty percent
(80%) of the voting power of the Corporation; provided, however, that this
Section 4.3F shall not apply to and such eighty percent (80%) vote shall not be
required for, any such amendment, change or repeal recommended to shareholders
by two-thirds (2/3) of the Continuing Directors and such amendment, change or
repeal so recommended shall
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<PAGE> 24
require only the vote, if any, required under the applicable provisions of the
General Corporation Law of the State of Ohio and of these Articles. For the
purposes of this Section 4.3F only, if at the time when any such amendment,
change, or repeal is under consideration there is no proposed Business
Combination (in which event, the definition of Continuing Director in paragraph
(e) of Section 4.2F would be inapplicable), the "Continuing Directors" shall be
deemed to be those persons who are members of the Board of Directors of the
Corporation at the time when the amendment of these Articles to add this
Section F was approved by the shareholders plus those persons who are
Continuing Directors under clause (ii) of paragraph (e) of Section 4.2F.
ARTICLE V
PURCHASE OF CORPORATION'S SHARES
The Corporation by action of its Board of Directors may purchase any
issued shares of the Corporation to the extent not prohibited by law.
ARTICLE VI
OPTIONS AND WARRANTS
The directors are authorized, from time to time, in their discretion,
to grant to such persons, for such periods and upon such terms as to the
directors may appear advisable, options to purchase such number of shares of
any class or classes or of any series of any class as the directors may deem
advisable, and to cause warrants or other appropriate instruments evidencing
such options to be issued.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
(a) The Corporation shall indemnify any director or officer or any
former director or officer of the Corporation or any person who is serving or
has served at the request of the Corporation as a director, officer, or trustee
of another corporation, joint venture, trust or other enterprise against
expenses, including attorneys' fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the Corporation, to which he was, is, or is threatened to be made a
party by reason of the fact that he is or was such director, officer, or
trustee, provided it is determined in the manner set forth in paragraph (c) of
this Article that he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and that, with
respect to any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful.
(b) In the case of any threatened, pending or completed action or suit
by or in the right of the Corporation, the Corporation shall indemnify each
person indicated in paragraph (a) of this Article against expenses, including
attorneys' fees, actually and reasonably incurred in connection with the
defense or settlement thereof, provided it is determined in the
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manner set forth in paragraph (c) of this Article that he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification shall be made in
respect of any claim, issue, or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Corporation unless and only to the extent that the court of common
pleas or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability, but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common pleas or such
other court shall deem proper.
(c) The determinations referred to in paragraphs (a) and (b) of this
Article shall be made (i) by a majority vote of a quorum consisting of
directors of the Corporation who were not and are not parties to or threatened
with any such action, suit or proceeding, or (ii) if such a quorum is not
obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been
retained by or who has performed services for the Corporation, or any person to
be indemnified, within the past five years, or (iii) by the shareholders, or
(iv) by the court of common pleas or the court in which such action, suit or
proceeding was brought.
(d) Expenses, including attorneys' fees, incurred in defending any
action, suit or proceeding referred to in paragraphs (a) and (b) of this
Article, may be paid by the Corporation in advance of the final disposition of
such action, suit, or proceeding as authorized by the directors in the specific
case upon receipt of an undertaking by or on behalf of the director, officer,
or trustee to repay such amount, unless it shall ultimately be determined that
he is entitled to be indemnified by the Corporation as authorized in this
Article.
(e) The indemnification provided by this Article shall not be deemed
exclusive (i) of any other rights to which those seeking indemnification may be
entitled under the articles, the regulations, any agreement, any insurance
purchased by the Corporation, vote of shareholders or disinterested directors,
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, or of (ii) the power of the
Corporation to indemnify any person who is or was an employee or agent of the
Corporation or of another corporation, joint venture, trust or other enterprise
which he is serving or has served at the request of the Corporation, to the
same extent and in the same situations and subject to the same determinations
as are hereinabove set forth with respect to a director, officer, or trustee.
As used in this paragraph (e), references to the "Corporation" include all
constituent corporations in a consolidation or merger in which the Corporation
or a predecessor to the Corporation by consolidation or merger was involved.
The indemnification provided by this Article shall continue as to a person who
has ceased to be a director, officer, or trustee and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
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ARTICLE VIII
ELIMINATION OF CUMULATIVE VOTING
No shareholder of this Corporation may cumulate his voting power.
These Twenty-Sixth Amended Articles of Incorporation shall supersede
and take the place of the theretofore existing Articles of Incorporation and
amendments thereto.
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EXHIBIT 12
COOPER INDUSTRIES, INC.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Dollar Amounts in Thousands)
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30, Year Ended December 31,
--------------------- ------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Expense $109,800 $114,800 $151,000 $73,300 $80,900 $92,500 $125,400
Estimated Interest Portion
of Rent Expense 13,668 12,439 16,865 19,289 20,701 16,178 18,130
-------- -------- -------- ------- -------- -------- --------
Fixed Charges $123,468 $127,239 $167,865 $92,589 $101,601 $108,678 $143,530
======== ======== ======== ======= ======== ======== ========
Income From Continuing
Operations Before Income Taxes $408,700 $351,600 $478,000 $504,700 $506,000 $392,100 $406,700
Add: Fixed Charges 123,468 127,239 167,865 92,589 101,601 108,678 143,530
Dividends From Less Than
50% Owned Companies 237 728 968 835 2,395 2,278 1,711
Less: Equity in Net Income
of Less Than 50% Owned
Companies (1,004) (754) (1,000) (1,900) (1,200) (1,900) (900)
-------- -------- -------- -------- -------- -------- --------
Earnings Before Fixed Charges $531,401 $478,813 $645,833 $596,224 $608,796 $501,156 $551,041
======== ======== ======== ======= ======== ======== ========
Ratio of Earnings to Fixed
Charges 4.3x 3.8x 3.8x 6.4x 6.0x 4.6x 3.8x
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE COMPANY'S CONSOLIDATED FINANCIAL
STATEMENTS FOR THE PERIOD INDICATED AS REPORTED IN
THE COMPANY'S FORM 10-Q AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 9,800
<SECURITIES> 0
<RECEIVABLES> 1,025,700
<ALLOWANCES> 0
<INVENTORY> 981,200
<CURRENT-ASSETS> 2,131,500
<PP&E> 2,257,700
<DEPRECIATION> 1,093,700
<TOTAL-ASSETS> 5,974,900
<CURRENT-LIABILITIES> 1,339,800
<BONDS> 1,858,000
0
0
<COMMON> 540,100
<OTHER-SE> 1,306,400
<TOTAL-LIABILITY-AND-EQUITY> 5,974,900
<SALES> 3,977,300
<TOTAL-REVENUES> 3,977,300
<CGS> 2,653,100
<TOTAL-COSTS> 2,653,100
<OTHER-EXPENSES> 201,800
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 109,800
<INCOME-PRETAX> 408,700
<INCOME-TAX> 181,000
<INCOME-CONTINUING> 227,700
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 227,700
<EPS-PRIMARY> 2.12
<EPS-DILUTED> 2.00
</TABLE>
