<PAGE> 1
As filed with the Securities and Exchange Commission on November 7, 1996
Registration Statement No. 333-5763
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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M. A. HANNA COMPANY
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 34-0232435
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
SUITE 36-5000
200 PUBLIC SQUARE
CLEVELAND, OHIO 44114-2304
(216) 589-4000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
---------------
John S. Pyke, Jr., Esq.
Vice President, General Counsel and Secretary
M. A. Hanna Company
Suite 36-5000
200 Public Square
Cleveland, Ohio 44114-2304
(216) 589-4000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
---------------
Copies to:
Lyle G. Ganske, Esq. John W. White, Esq.
Christopher M. Kelly, Esq. Cravath, Swaine & Moore
Jones, Day, Reavis & Pogue 825 Eighth Avenue
901 Lakeside Avenue New York, NY 10019
Cleveland, Ohio 44114 (212) 474-1000
(216) 586-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of the Registration Statement
as determined in light of market conditions.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
<PAGE> 2
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 7, 1996
PROSPECTUS [LOGO]
$300,000,000
M. A. HANNA COMPANY
DEBT SECURITIES
M.A. Hanna Company (the "Company") may offer and sell from time to time
unsecured debentures, notes or other evidences of indebtedness ("Debt
Securities"), with an initial offering price not to exceed $300,000,000 in the
aggregate (or the equivalent in foreign denominated currency or units based on
or related to currencies, including European Currency Units). All specific terms
of the offering and sale of the Debt Securities, including the specific
designations, rights and restrictions and whether the Debt Securities are senior
or subordinated, the currencies or composite currencies in which the Debt
Securities are denominated, the aggregate principal amount, the maturity, rate
and time of payment of interest, and any conversion, exchange, redemption or
sinking fund provisions, and initial public offering price, any material United
States federal income tax consequences, listing on any securities exchange, and
the agents, dealers or underwriters, if any, to be utilized in connection with
the sale of the Debt Securities, will be set forth in an accompanying Prospectus
Supplement (the "Prospectus Supplement"). The Debt Securities may be sold for
U.S. Dollars, foreign denominated currency or currency units; principal of and
any interest may likewise be payable in U.S. Dollars or foreign denominated
currency or currency units -- in each case, as the Company specifically
designates. The managing underwriters with respect to each series sold to or
through underwriters will be named in the Prospectus Supplement.
The Debt Securities may be offered directly, through dealers, through
underwriters or through agents designated from time to time as set forth in the
Prospectus Supplement. The names of any such dealers, underwriters or agents and
any applicable commissions or discounts and the net proceeds to the Company from
such sale will be set forth in the Prospectus Supplement. See "Plan of
Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY ANY OF THE DEBT SECURITIES OTHER THAN THE DEBT SECURITIES DESCRIBED
IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is ________ __, 1996.
<PAGE> 4
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE ACCOMPANYING
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS CORRECT AS OF ANY DATE SUBSEQUENT
TO THE DATE HEREOF OR THEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
THE COMPANY SINCE THE DATE HEREOF OR THEREOF. NEITHER THIS PROSPECTUS NOR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR SOLICITATION
OF AN OFFER TO BUY THE DEBT SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION.
IN CONNECTION WITH AN OFFERING OF DEBT SECURITIES, THE UNDERWRITERS, IF ANY, FOR
SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICES OF SUCH DEBT SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549 and at the following regional offices of the
Commission: New York Regional Office, Seven World Trade Center, Suite 1300, New
York, New York 10048, and Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained by mail at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission
also maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
at http:// www.sec.gov. The Company's Common Stock is listed on the New York
Stock Exchange, and such reports, proxy statements and other information
concerning the Company may also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005, and the Chicago Stock
Exchange, 440 South LaSalle Street, Chicago, Illinois 60605.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933 (the "Securities Act"). This Prospectus and the
accompanying Prospectus Supplement omit certain of the information contained in
the Registration Statement in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the Debt
Securities. Statements contained herein concerning the provisions of any
document are not necessarily complete and, in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission are incorporated by reference in this Prospectus: (i) the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995, as
amended; and (ii) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996.
<PAGE> 5
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Debt
Securities shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of the filing of such documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement and this Prospectus to the extent
that a statement contained herein or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein or in the
accompanying Prospectus Supplement modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Registration Statement or
this Prospectus.
The Company will provide, without charge, to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of any such person, a copy of any or all of the documents which
have been incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests should be directed to M. A. Hanna Company, Suite
36-5000, 200 Public Square, Cleveland, Ohio 44114-2340, Attention: John S. Pyke,
Jr., Esq., Vice President, General Counsel and Secretary, telephone (216)
589-4000.
THE COMPANY
The Company is one of the largest independent custom compounders of
rubber in the world, a leading distributor of engineered plastic sheet, rod,
tube, film products, and polymer resins, a leading producer of custom formulated
color and additive concentrates in North America and Europe and a leading
compounder of plastics in North America in terms of pounds produced. The Company
conducts its operations through various business units located in North America,
Europe and Asia.
The Company's executive offices are located a Suite 36-5000, 200 Public
Square, Cleveland, Ohio 44114, and its telephone number is (216) 589-4000.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used for general
corporate purposes, which may include repayment of indebtedness, additions to
working capital, capital expenditures and acquisitions. Further details relating
to the uses of the net proceeds of any such offering will be set forth in the
applicable Prospectus Supplement.
<PAGE> 6
RATIOS OF EARNINGS TO FIXED CHARGES
The following table represents the Company's consolidated ratio of
earnings to fixed charges1 for the periods shown:
<TABLE>
<CAPTION>
Nine Months Ended Fiscal Year Ended
--------------------------------- ---------------------------------------
September 30, September 30, December 31,
1996 1995 1995 1994 1993 1992 1991
--------------- --------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
4.78 4.15 4.07 2.94 2.00 1.73 0.42
- ----------
<FN>
1 For the purpose of calculating the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before income
taxes and fixed charges (excluding capitalized interest). "Fixed
charges" consist of (i) interest on indebtedness, whether expensed or
capitalized, and (ii) that portion of rental expense the Company
believes to be representative of interest.
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be described
in the Prospectus Supplement relating to such Debt Securities. Accordingly, for
a description of the terms of a particular issue of Debt Securities, reference
must be made to both the Prospectus Supplement relating thereto and to the
following description.
The Debt Securities will be general obligations of the Company and may
be subordinated to "Senior Indebtedness" (as defined below) of the Company to
the extent set forth in the Prospectus Supplement relating thereto. See
"Description of Debt Securities -- Subordination" below. Debt Securities will be
issued under an indenture (the "Indenture") to be entered into between the
Company and NBD Bank (the "Trustee"). A copy of the form of Indenture has been
filed as an exhibit to the Registration Statement filed with the Commission. The
following discussion of certain provisions of the Indenture is a summary only
and does not purport to be a complete description of the terms and provisions of
the Indenture. Accordingly, the following discussion is qualified in its
entirety by reference to the provisions of the Indenture, including the
definition therein of terms used below with their initial letters capitalized.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder. The Debt Securities may be issued in
one or more series as may be authorized from time to time by the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities of the series with respect to which such Prospectus
Supplement is being delivered:
(a) The title of Debt Securities of the series;
(b) Any limit on the aggregate principal amount of the Debt
Securities of the series that may be authenticated and delivered under
the Indenture;
(c) The date or dates on which the principal and premium, if
any, with respect to the Debt Securities of the series are payable;
<PAGE> 7
(d) The rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest (if any) or
the method of determining such rate or rates, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable or the method by which such date will be
determined, the record dates for the determination of holders thereof
to whom such interest is payable (in the case of Registered
Securities), and the basis upon which interest will be calculated if
other than that of a 360-day year of twelve 30-day months;
(e) The Place or Places of Payment, if any, in addition to or
instead of the corporate trust office of the Trustee where the
principal, premium, if any, and interest with respect to Debt
Securities of the series shall be payable;
(f) The price or prices at which, the period or periods within
which, and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company or otherwise;
(g) The obligation, if any, of the Company to redeem,
purchase, or repay Debt Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a holder
thereof and the price or prices at which, the period or periods within
which, and the terms and conditions upon which Debt Securities of the
series shall be redeemed, purchased, or repaid, in whole or in part,
pursuant to such obligations;
(h) The terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for Common Stock, Preferred
Stock (which may be represented by depositary shares), other Debt
Securities or warrants for Common Stock, Preferred Stock or
Indebtedness or other securities of any kind of the Company or any
other obligor and the terms and conditions upon which such conversion
or exchange shall be effected, including the initial conversion or
exchange price or rate, the conversion or exchange period and any other
provision in addition to or in lieu of those described herein;
(i) If other than denominations of $1,000 or any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(j) If the amount of principal, premium, if any, or interest
with respect to the Debt Securities of the series may be determined
with reference to an index or pursuant to a formula, the manner in
which such amounts will be determined;
(k) If the principal amount payable at the stated maturity of
Debt Securities of the series will not be determinable as of any one or
more dates prior to such stated maturity, the amount that will be
deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof that will be due and payable
upon any maturity other than the stated maturity or that will be deemed
to be outstanding as of any such date (or, in such case, the manner in
which such deemed principal amount is to be determined), and if
necessary, the manner of determining the equivalent thereof in United
States currency;
(l) Any changes or additions to the provisions of the
Indenture dealing with defeasance, including the addition of additional
covenants that may be subject to the Company's covenant defeasance
option;
(m) The coin or currency or currencies or units of two or more
currencies in which payment of the principal and premium, if any, and
interest with respect to Debt Securities of the series shall be
payable;
<PAGE> 8
(n) If other than the principal amount thereof, the portion of
the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration or provable in bankruptcy;
(o) The terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of the Indenture
as currently in effect;
(p) Any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the
right of the Trustee or the holders to declare the principal of and
interest on, such Debt Securities due and payable;
(q) If the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security, the terms and
conditions, if any, upon which such Global Security may be exchanged in
whole or in part for other individual Debt Securities in definitive
registered form and the Depositary for such Global Security;
(r) Any trustees, authenticating or paying agents, transfer
agents or registrars;
(s) The applicability of, and any addition to or change in the
covenants and definitions currently set forth in the Indenture or in
the terms relating to permitted consolidations, mergers, or sales of
assets, including conditioning any merger, conveyance, transfer or
lease permitted by the Indenture upon the satisfaction of an
Indebtedness coverage standard by the Company and Successor Company;
(t) The terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Debt Securities of
the series and any corresponding changes to the provisions of the
Indenture as currently in effect;
(u) The subordination, if any, of the Debt Securities of the
series pursuant to the Indenture and any changes or additions to the
provisions of the Indenture relating to subordination;
(v) With regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
and
(w) Any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the Indenture).
The Prospectus Supplement will also describe any material United States
federal income tax consequences or other special considerations applicable to
the series of Debt Securities to which such Prospectus Supplement relates,
including those applicable to (a) Debt Securities with respect to which payments
of principal, premium, or interest are determined with reference to an index or
formula (including changes in prices of particular securities, currencies, or
commodities), (b) Debt Securities with respect to which principal, premium, or
interest is payable in a foreign or composite currency, (c) Debt Securities that
are issued at a discount below their stated principal amount, bearing no
interest or interest at a rate that at the time of issuance is below market
rates ("Original Issue Discount Debt Securities"), and (d) variable rate Debt
Securities that are exchangeable for fixed rate Debt Securities.
Payments of interest on Debt Securities shall be made at the corporate
trust office of the Trustee or at the option of the Company by check mailed to
the registered holders thereof or, if so provided in the applicable Prospectus
Supplement, at the option of a holder by wire transfer to an account designated
by such holder.
<PAGE> 9
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities may be transferred or exchanged at the office of the Trustee at which
its corporate trust business is principally administered in the United States or
at the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which its corporate agency business is
conducted, subject to the limitations provided in the Indenture, without the
payment of any service charge, other than any tax or governmental charge payable
in connection therewith.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in
the form of one or more fully registered global securities (a "Global Security")
that will be deposited with a depositary (the "Depositary"), or with a nominee
for a Depositary identified in the Prospectus Supplement relating to such
series. In such case, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee of
such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depositary
("participants"). The amounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interest through participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). So long as the
Depositary for a Global Security, or its nominee, is the registered owner of
such Global Security, such Depositary or such nominee, as the case may be, will
be considered the sole owner or Holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture. Except as set forth
below, owners of beneficial interests in a Global Security will not be entitled
to have the Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners or
Holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Global Security registered in the name of a Depositary or its
nominee will be made to such Depositary or its nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the Trustee
or any paying agent for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in such Global Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium, or interest, will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be
<PAGE> 10
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
name", and will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Global
Security is at any time unwilling or unable to continue as Depositary and a
successor Depositary is not appointed by the Company within ninety days, the
Company will issue such Debt Securities in definitive form in exchange for such
Global Security. In addition, the Company may at any time and in its sole
discretion determine not to have any of the Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for the Global Security
or Securities representing such Debt Securities.
SUBORDINATION
Debt Securities may be subordinated ("Subordinated Debt Securities") to
senior debt to the extent set forth in the Prospectus Supplement relating
thereto.
Subordinated Debt Securities will be subordinate in right of payment,
to the extent and in the manner set forth in the Indenture and the Prospectus
Supplement relating to such Subordinated Debt Securities, to the prior payment
of all Indebtedness of the Company that is designated as "Senior Indebtedness"
(as defined in the Indenture) with respect to such Subordinated Debt Securities.
Senior Indebtedness, with respect to any series of Subordinated Debt Securities,
will consist of (a) any and all amounts payable under or with respect to the
Company's "Bank Indebtedness" (defined as the Credit Agreement, dated June 30,
1994, among the Company as Borrower, and the Banks party thereto, as amended,
modified, supplemented, refinanced or replaced at any time from time to time)
and (b) any other indebtedness of the Company that is designated in a resolution
of the Company's Board of Directors or the supplemental Indenture establishing
such series as Senior Indebtedness with respect to such series.
Upon any payment or distribution of assets of the Company to creditors
or upon a total or partial liquidation or dissolution of the Company or in a
bankruptcy, receivership, or similar proceeding relating to the Company or its
property, holders of Senior Indebtedness shall be entitled to receive payment in
full in cash of the Senior Indebtedness before holders of Subordinated Debt
Securities shall be entitled to receive any payment of principal, premium, or
interest with respect to the Subordinated Debt Securities, and until the Senior
Indebtedness is paid in full, any distribution to which holders of Subordinated
Debt Securities would otherwise be entitled shall be made to the holders of
Senior Indebtedness (except that such holders may receive shares of stock and
any debt securities that are subordinated to Senior Indebtedness to at least the
same extent as the Subordinated Debt Securities).
The Company may not make any payments of principal, premium, or
interest with respect to Subordinated Debt Securities, make any deposit for the
purpose of defeasance of such Subordinated Debt Securities, or repurchase,
redeem, or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund, by the delivery of Subordinated Debt
Securities by the Company to the Trustee in satisfaction of the Company's
sinking fund obligation) any Subordinated Debt Securities if (a) any principal,
premium, if any, or interest with respect to Senior Indebtedness is not paid
within any applicable grace period (including at maturity) or (b) any other
default on Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms, unless, in either
case, the default has been cured or waived and such acceleration has been
rescinded, such Senior Indebtedness has been paid in full in cash, or the
Company and the Trustee receive written notice approving such payment from the
representatives of each issue of "Designated Senior Indebtedness" (which will
include the Bank Indebtedness and any other specified issue of Senior
Indebtedness). During the continuance of any default (other than a default
described in clause (a) or (b) above) with respect to any Senior Indebtedness
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may
not pay the Subordinated Debt Securities for a period (the "Payment Blockage
Period") commencing on the receipt by the Company and the Trustee of written
notice of such default from the representative of any
<PAGE> 11
Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period (a "Blockage Notice"). The Payment Blockage Period may be
terminated before its expiration by written notice to the Trustee and the
Company from the person who gave the Blockage Notice, by repayment in full in
cash of the Senior Indebtedness with respect to which the Blockage Notice was
given, or because the default giving rise to the Payment Blockage Period is no
longer continuing. Unless the holders of such Senior Indebtedness shall have
accelerated the maturity thereof, the Company may resume payments on the
Subordinated Debt Securities after the expiration of the Payment Blockage
Period. Not more than one Blockage Notice may be given in any period of 360
consecutive days unless the first Blockage Notice within such 360-day period is
given by or on behalf of holders of Designated Senior Indebtedness other than
the Bank Indebtedness, in which case the representative of the Bank Indebtedness
may give another Blockage Notice within such period. In no event, however, may
the total number of days during which any Payment Blockage Period or Periods is
in effect exceed 179 days in the aggregate during any period of 360 consecutive
days. After all Senior Indebtedness is paid in full and until the Subordinated
Debt Securities are paid in full, holders of the Subordinated Debt Securities
shall be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness.
By reason of such subordination, in the event of insolvency, creditors
of the Company who are holders of Senior Indebtedness, as well as certain
general creditors of the Company, may recover more, ratably, than the holders of
the Subordinated Debt Securities.
EVENTS OF DEFAULT AND REMEDIES
The following events are defined in the Indenture as "Events of
Default" with respect to a series of Debt Securities:
(a) Default in the payment of any installment of interest on
any Debt Securities of that series as and when the same shall become due and
payable (whether or not, in the case of Subordinated Debt Securities, such
payment shall be prohibited by reason of the subordination provision described
above) and continuance of such default for a period of 30 days;
(b) Default in the payment of principal or premium with
respect to any Debt Securities of that series as and when the same become due
and payable, whether at maturity, upon redemption, by declaration, upon required
repurchase, or otherwise (whether or not, in the case of Subordinated Debt
Securities, such payment shall be prohibited by reason of the subordination
provision described above);
(c) Default in the payment of any sinking fund payment with
respect to any Debt Securities of that series as and when the same shall become
due and payable;
(d) Failure on the part of the Company to comply with the
provisions of the Indenture relating to consolidations, mergers and sales of
assets;
(e) Failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the Company in
the Debt Securities of that series, in any resolution of the Board of Directors
of the Company authorizing the issuance of that series of Debt Securities, in
the Indenture with respect to such series, or in any supplemental Indenture with
respect to such series (other than a covenant or agreement a default in the
performance of which is otherwise specifically dealt with) continuing for a
period of 60 days after the date on which written notice specifying such failure
and requiring the Company to remedy the same shall have been given to the
Company by the Trustee or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Debt Securities of that series at
the time outstanding;
(f) Indebtedness of the Company or any Subsidiary of the
Company is not paid within any applicable grace period after final maturity or
is accelerated by the holders thereof because of a default, the total amount of
such indebtedness unpaid or accelerated exceeds $30 million or the United States
dollar
<PAGE> 12
equivalent thereof at the time, and such default remains uncured or such
acceleration is not rescinded for 10 days after the date on which written notice
specifying such failure and requiring the Company to remedy the same shall have
been given to the Company by the Trustee or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of the Debt Securities
of that series at the time outstanding;
(g) The Company or any of its Restricted Subsidiaries shall
(1) voluntarily commence any proceeding or file any petition seeking relief
under the United States Bankruptcy Code or other federal or state bankruptcy,
insolvency, or similar law, (2) consent to the institution of, or fail to
controvert within the time and in the manner prescribed by law, any such
proceeding of the filing of any such petition, (3) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, or similar official
for the Company or any such Restricted Subsidiary or for a substantial part of
its property, (4) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (5) make a general assignment
for the benefit of creditors, (6) admit in writing its inability or fail
generally to pay its debts as they become due, (7) take corporate action for the
purpose of effecting any of the foregoing, or (8) take any comparable action
under any foreign laws relating to insolvency;
(h) The entry of an order or decree by a court having
competent jurisdiction for (1) relief with respect to the Company or any of its
Restricted Subsidiaries or a substantial part of any of their property under the
United States Bankruptcy Code or any other federal or state bankruptcy,
insolvency, or similar law, (2) the appointment of a receiver, trustee,
custodian, sequestrator, or similar official for the Company or any such
Restricted Subsidiary or for a substantial part of any of their property (except
any decree or order appointing such official of any Restricted Subsidiary
pursuant to a plan under which the assets and operations of such Restricted
Subsidiary are transferred to or combined with another Restricted Subsidiary or
Subsidiary of the Company or to the Company), or (3) the winding-up or
liquidation of the Company or any such Restricted Subsidiary (except any decree
or order approving or ordering the winding-up or liquidation of the affairs of a
Restricted Subsidiary pursuant to a plan under which the assets and operations
of such Restricted Subsidiary are transferred to or combined with another
Restricted Subsidiary or Subsidiaries of the Company or to the Company), and
such order or decree shall continue unstayed and in effect for 60 consecutive
days, or any similar relief is granted under any foreign laws and the order or
decree stays in effect for 60 consecutive days; or
(i) Any other Event of Default provided under the terms of the
Debt Securities of that series.
An Event of Default with respect to one series of Debt
Securities is not necessarily an Event of Default for another series.
If an Event of Default occurs and is continuing with respect
to any series of Debt Securities, unless the principal and interest with respect
to all the Debt Securities of such series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities of such series then outstanding may
declare the principal of (or, if Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in such series) and interest
on all the Debt Securities of such series due and payable immediately.
If an Event of Default occurs and is continuing, the Trustee
shall be entitled and empowered to institute any action or proceeding for the
collection of the sums so due and unpaid or to enforce the performance of any
provision of the Debt Securities of the affected series or the Indenture, to
prosecute any such action or proceeding to judgment or final decree, and to
enforce any such judgment or final decree against the Company or any other
obligor on the Debt Securities of such series. In addition, if there shall be
pending proceedings for the bankruptcy or reorganization of the Company or any
other obligor on the Debt Securities, or if a receiver, trustee, or similar
official shall have been appointed for its property, the Trustee shall be
entitled and empowered to file and prove a claim for the whole amount of
principal, premium and interest (or, in the case of Original Issue Discount Debt
Securities, such portion of the
<PAGE> 13
principal amount as may be specified in the terms of such series) owing and
unpaid with respect to the Debt Securities. No holder of any Debt Securities of
any series shall have any right to institute any action or proceeding upon or
under or with respect to the Indenture, for the appointment of a receiver or
trustee, or for any other remedy, unless (a) such holder previously shall have
given to the Trustee written notice of an Event of Default with respect to Debt
Securities of that series and of the continuance thereof, (b) the holders of not
less than 25% in aggregate principal amount of the outstanding Debt Securities
of that series shall have made written request to the Trustee to institute such
action or proceeding with respect to such Event of Default and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses, and liabilities to be incurred therein or thereby, and (c) the
Trustee, for 60 days after its receipt of such notice, request, and offer of
indemnity shall have failed to institute such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to the provisions of the Indenture.
Prior to the acceleration of the maturity of the Debt
Securities of any series, the holders of a majority in aggregate principal
amount of the Debt Securities of that series at the time outstanding may, on
behalf of the holders of all Debt Securities of that series, waive any past
default or Event of Default and its consequences for that series, except (a) a
default in the payment of the principal, premium, or interest with respect to
such Debt Securities or (b) a default with respect to a provision of the
Indenture that cannot be amended without the consent of each holder affected
thereby. In case of any such waiver, such default shall cease to exist, any
Event of Default arising therefrom shall be deemed to have been cured for all
purposes, and the Company, the Trustee and the holders of the Debt Securities of
that series shall be restored to their former positions and rights under the
Indenture.
The Trustee shall, within 90 days after the occurrence of a
default known to it with respect to a series of Debt Securities, give to the
holders of the Debt Securities of such series notice of all uncured defaults
with respect to such series known to it, unless such defaults shall have been
cured or waived before the giving of such notice; provided, however, that except
in the case of default in the payment of principal, premium, or interest with
respect to the Debt Securities of such series or in the making of any sinking
fund payment with respect to the Debt Securities of such series, the Trustee
shall be protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interest of the holders of such
Debt Securities.
MODIFICATION OF THE INDENTURE
The Company and the Trustee may enter into supplemental
indentures without the consent of the holders of Debt Securities issued under
the Indenture for one or more of the following purposes:
(a) To evidence the succession of another person to
the Company pursuant to the provisions of the Indenture relating to
consolidations, mergers, and sales of assets and the assumption by such
successor of the covenants, agreements, and obligations of the Company in the
Indenture and in the Debt Securities;
(b) To surrender any right or power conferred upon
the Company by the Indenture, to add to the covenants of the Company such
further covenants, restrictions, conditions, or provisions for the protection of
the holders of all or any series of Debt Securities as the Board of Directors of
the Company shall consider to be for the protection of the holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance of a
default in any of such additional covenants, restrictions, conditions, or
provisions, a default or an Event of Default under the Indenture (provided,
however, that with respect to any such additional covenant, restriction,
condition, or provision, such supplemental indenture may provide for a period of
grace after default, which may be shorter or longer than that allowed in the
case of other defaults, may provide for an immediate enforcement upon such
default, may limit the remedies available to the Trustee upon such default, or
may limit the right of holders of a majority in aggregate principal amount of
any or all series of Debt Securities to waive such default);
<PAGE> 14
(c) To cure any ambiguity or to correct or supplement
any provision contained in the Indenture, in any supplemental indenture, or in
any Debt Securities that may be defective or inconsistent with any other
provision contained therein, to convey, transfer, assign, mortgage, or pledge
any property to or with the Trustee, or to make such other provisions in regard
to matters or questions arising under the Indenture as shall not adversely
affect the interests of any holders of Debt Securities of any series;
(d) To modify or amend the Indenture in such a manner
as to permit the qualification of the Indenture or any supplemental Indenture
under the Trust Indenture Act as then in effect;
(e) To add or change any of the provisions of the
Indenture to change or eliminate any restriction on the payment of principal or
premium with respect to Debt Securities so long as any such action does not
adversely affect the interest of the holders of Debt Securities in any material
respect or permit or facilitate the issuance of Debt Securities of any series in
uncertificated form;
(f) To comply with the provisions of the Indenture
relating to consolidations, mergers, and sales of assets;
(g) In the case of Subordinated Debt Securities, to
make any change in the provisions of the Indenture relating to subordination
that would limit or terminate the benefits available to any holder of Senior
Indebtedness under such provisions (but only if such holder of Senior
Indebtedness consents to such change);
(h) To add guarantees with respect to the Debt
Securities or to secure the Debt Securities;
(i) To make any change that does not adversely affect
the rights of any holder;
(j) To add to, change, or eliminate any of the
provisions of the Indenture with respect to one or more series of Debt
Securities, so long as any such addition, change, or elimination not otherwise
permitted under the Indenture shall (1) neither apply to any Debt Securities of
any series created prior to the execution of such supplemental Indenture and
entitled to the benefit of such provision nor modify the rights of the Holders
of any such Debt Security with respect to such provision or (2) become effective
only when there is no such Debt Security outstanding;
(k) To evidence and provide for the acceptance of
appointment by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the Indenture by more than one Trustee; and
(l) To establish the form or terms of Debt Securities
of any series, as described under "Description of Debt Securities -- General"
above.
With the consent of the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of each series affected
thereby, the Company and the Trustee may from time to time and at any time enter
into a supplemental Indenture for the purpose of adding any provisions to,
changing in any manner, or eliminating any of the provisions of the Indenture or
of any supplemental Indenture or modifying in any manner the rights of the
holder of the Debt Securities of such series; provided, however, that without
the consent of the holders of each Debt Security so affected, no such
supplemental Indenture shall (a) reduce the percentage in principal amount of
Debt Securities of any series whose holders must consent to an amendment, (b)
reduce the rate of or extend the time for payment of interest on any Debt
Security, (c) reduce the principal of or extend the stated maturity of any Debt
Security, (d) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed,
(e) make any Debt Security payable in a currency other than that stated in the
Debt Security, (f) in the case of any Subordinated Debt Security, make any
change in the
<PAGE> 15
provisions of the Indenture relating to subordination that adversely affects the
rights of any holder under such provisions, (g) release any security that may
have been granted with respect to the Debt Securities, or (h) make any change in
the provisions of the Indenture relating to waivers of defaults or amendments
that require unanimous consent.
CERTAIN COVENANTS
Limitation on Liens. The Company may not, and may not permit
any of its Subsidiaries to, directly or indirectly, create or permit to exist
any Lien on any Principal Property, whether owned on the date of issuance of the
Debt Securities or thereafter acquired, securing any obligation unless the
Company contemporaneously secures the Debt Securities equally and ratably with
(or prior to) such obligation. The preceding sentence will not require the
Company to secure the Debt Securities if the Lien consists of the following: (i)
Permitted Liens; or (ii) Liens securing Indebtedness if, after giving pro forma
effect to the Incurrence of such Indebtedness (and the receipt and application
of the proceeds thereof) or the securing of outstanding Indebtedness, the sum of
(without duplication) (A) all Indebtedness of the Company and its Subsidiaries
secured by Liens on Principal Property (other than Permitted Liens) and (B) all
Attributable Indebtedness in respect of Sale/Leaseback Transactions with respect
to any Principal Property, at the time of determination does not exceed 10% of
the total consolidated stockholders' equity of the Company as shown on the
audited consolidated balance sheet contained in the latest annual report to
stockholders of the Company.
Limitation on Sale/Leaseback Transactions. The Company may
not, and may not permit any of its Subsidiaries to, enter into any
Sale/Leaseback Transaction with respect to any Principal Property unless (i) the
Company or such Subsidiary would be entitled to create a Lien on such Principal
Property securing Indebtedness in an amount equal to the Attributable
Indebtedness with respect to such Sale/Leaseback Transaction without securing
the Debt Securities pursuant to the covenant described in "Limitation on Liens"
above or (ii) the Company, within six months from the effective date of such
Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement
(excluding retirements of Debt Securities or other Indebtedness ranking pari
passu with the Debt Securities as a result of conversions or pursuant to
mandatory sinking fund or mandatory prepayment provisions or by payment at
maturity) of Debt Securities or other Indebtedness ranking pari passu with the
Debt Securities an amount equal to the Attributable Indebtedness in respect of
such Sale/Leaseback Transaction.
Certain Definitions. The following definitions, among others,
are used in the Indenture. Many of the definitions of terms used in the
Indenture have been negotiated specifically for the purposes of inclusion in the
Indenture and may not be consistent with the manner in which such terms are
defined in other contexts. Prospective purchasers of Debt Securities are
encouraged to read each of the following definitions carefully and to consider
such definitions in the context in which they are used in the Indenture.
Capitalized terms used herein but not defined have the meanings assigned thereto
in the Indenture.
"Attributable Indebtedness" in respect of a Sale/ Leaseback
Transaction means, as of the time of determination, (i) if the obligation in
respect of such Sale/Leaseback Transaction is a Capitalized Lease Obligation,
the amount of such obligation determined in accordance with GAAP and included in
the financial statements of the lessee or (ii) if the obligation in respect of
such Sale/Leaseback Transaction is not a Capitalized Lease Obligation, the total
Net Amount of Rent required to be paid by the lessee under such lease during the
remaining term thereof (including any period for which the lease has been
extended), discounted from the respective due dates thereof to such
determination date at the rate per annum borne by the Debt Securities compounded
semi-annually.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP; and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment
<PAGE> 16
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Currency Exchange Protection Agreement" means, in respect of
any Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Disqualified Stock" of a Person means Redeemable Stock of
such Person as to which the maturity, mandatory redemption, conversion or
exchange or redemption at the option of the holder thereof occurs, or may occur,
on or prior to the first anniversary of the Stated Maturity of the Debt
Securities.
"GAAP" means generally accepted accounting principles in the
United States as in effect as of the date on which the Debt Securities of the
applicable series are issued, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.
"Government Contract Lien" means any Lien required by any
contract, statute, regulation or order in order to permit the Company or any of
its Subsidiaries to perform any contract or subcontract made by it with or at
the request of the United States or any State thereof or any department, agency
or instrumentality of either or to secure partial, progress, advance or other
payments by the Company or any of its Subsidiaries to the United States or any
State thereof or any department agency or instrumentality of either pursuant to
the provisions of any contract, statute, regulation or order.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Protection Agreement, Currency
Exchange Protection Agreement or Commodity Price Protection Agreement or other
similar agreement.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication),
(i) the principal of Indebtedness of such Person for borrowed
money;
(ii) the principal of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of
credit, banker's acceptances or other similar instruments or credit
transactions (including reimbursement obligations with respect
thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through
(iv) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than
the third business day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit;
(vi) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock (but excluding, in each case, any accrued dividends);
<PAGE> 17
(vii) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; PROVIDED, HOWEVER, that the amount of such Indebtedness
shall be the lesser of (A) the fair market value of such asset at such
date of determination and (B) the amount of such Indebtedness of such
other Persons; and
(viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; PROVIDED, HOWEVER, that if such Stock is
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Interest Rate Protection Agreement" means, in respect of any
Person, any interest rate swap agreement, interest rate option agreement,
interest rate cap agreement, interest rate collar agreement, interest rate floor
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Net Amount of Rent" as to any lease for any period means the
aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. In the case of
any lease that is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent shall be
considered as payable under such lease subsequent to the first date upon which
it may be so terminated.
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws, social security laws or similar legislation, or
good faith deposits in connection with bids, tenders, contracts (other than for
the payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits of
cash or bonds to secure performance, surety or appeal bonds to which such Person
is a party or which are otherwise required of such Person, or deposits as
security for contested taxes or import duties or for the payment of rent or
other obligations of like nature, in each case incurred in the ordinary course
of business; (b) Liens imposed by law, such as carriers', warehousemen's,
laborers', materialmen's, landlords', vendors', workmen's, operators', factors
and mechanics liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings; (c) Liens for taxes, assessments and
other governmental charges or levies not yet delinquent or which are being
contested in good faith by appropriate proceedings; (d) survey exceptions,
encumbrances, easements or reservations of or with respect to, or rights of
others for or with respect to, licenses, rights-of-way, sewers, electric and
other utility lines and usages, telegraph and telephone lines, pipelines,
surface use, operation of equipment, permits, servitudes and other similar
matters, or zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the ownership of
its properties which were not Incurred in connection with Indebtedness and which
do not in the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business of such Person;
(e) Liens existing on or provided for under the terms of agreements existing on
the Issue Date (including, without limitation, under the Credit Agreement); (f)
Liens on property at the time the Company or any of its Subsidiaries acquired
the property or the entity owning such property, including any acquisition by
means of a merger or
<PAGE> 18
consolidation with or into the Company; PROVIDED, HOWEVER, that any such Lien
may not extend to any other property owned by the Company or any of its
Subsidiaries, (g) Liens securing a Hedging Obligation so long as such Hedging
Obligation is of the type customarily entered into for the purpose of limiting
risk; (h) Purchase Money Liens; (i) Liens securing only Indebtedness of a
Subsidiary of the Company to the Company or one or more wholly owned
Subsidiaries of the Company; (j) Liens on any property to secure Indebtedness
Incurred in connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of industrial revenue
bond financing or Indebtedness issued or Guaranteed by the United States, any
state or any department, agency or instrumentality thereof; (k) Government
Contract Liens; (l) Liens securing Indebtedness of joint ventures in which the
Company or a Subsidiary has an interest to the extent such Liens are on property
or assets of, such joint ventures; (m) Liens resulting from the deposit of funds
or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness
of the Company or any of its Subsidiaries; (n) legal or equitable encumbrances
deemed to exist by reason of negative pledges or the existence of any litigation
or other legal proceeding and any related lis pendens filing (excluding any
attachment prior to judgment lien or attachment lien in aid of execution on a
judgment); (o) any attachment Lien being contested in good faith and by
proceedings promptly initiated and diligently conducted, unless the attachment
giving rise thereto will not, within sixty days after the entry thereof, have
been discharged or fully bonded or will not have been discharged within sixty
days after the termination of any such bond; (p) any judgment Lien, unless the
judgment it secures will not, within sixty days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or will not have
been discharged within sixty days after the expiration of any such stay; (q)
Liens to banks arising from the issuance of letters of credit issued by such
banks ("issuing banks") on the following: (i) any and all shipping documents,
warehouse receipts, policies or certificates of insurance and other document
accompanying or relative to drafts drawn under any credit, and any draft drawn
thereunder (whether or not such documents, goods or other property be released
to or upon the order of the Company or any Subsidiary under a security agreement
or trust or bailee receipt or otherwise), and the proceeds of each and all of
the foregoing; (ii) the balance of every deposit account, now or at the time
hereafter existing, of the Company or any Subsidiary with the issuing banks, and
any other claims of the Company or any Subsidiary against the issuing banks; and
all property claims and demands and all rights and interests therein of the
Company or any Subsidiary and all evidences thereof and all proceeds thereof
which have been or at any time will be delivered to or otherwise come into the
issuing bank's possession, custody or control, or into the possession, custody
or control of any bailee for the issuing bank or of any of its agents or
correspondents for the account of the issuing bank, for any purpose, whether or
not the express purpose of being used by the issuing bank as collateral security
or for the safekeeping or for any other or different purpose, the issuing bank
being deemed to have possession or control of all of such property actually in
transit to or from or set apart for the issuing bank, any bailee for the issuing
bank or any of its correspondents for other acting in its behalf, it being
understood that the receipt at any time by the issuing bank, or any of its
bailees, agents or correspondents, or other security, of whatever nature,
including cash, will not be deemed a waiver of any of the issuing bank's rights
or power hereunder; (iii) all property shipped under or pursuant to or in
connection with any credit or drafts drawn thereunder or in any way related
thereto, and all proceeds thereof; (iv) all additions to and substitutions for
any of the property enumerated above in this subsection; (r) rights of a common
owner of any interest in property held by such Person; (s) any defects,
irregularities or deficiencies in title to easements, rights-of-way or other
properties which do not in the aggregate materially adversely affect the value
of such properties or materially impair their use in the operation of the
business of such Person; and (t) Liens to secure any refinancing, refunding,
extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements), as a whole, or in part, of any
indebtedness secured by any Lien referred to in the foregoing clauses (e)
through (l); PROVIDED, HOWEVER, that (i) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus improvements
on such property) and (ii) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (A) the outstanding
principal amount or, if greater, committed amount of the indebtedness described
under clauses (e) through (l) at the time the original Lien became a Permitted
Lien under this Indenture and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding, extension,
renewal or replacement.
<PAGE> 19
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Principal Property" means any single manufacturing plant or
other similar facility or warehouse, owned or leased by the Company or any
Subsidiary, which is located within the United States and at which in excess of
5% of the Company's consolidated annual revenue is generated.
"Purchase Money Lien" means a Lien on property securing
Indebtedness Incurred by the Company or any of its Subsidiaries to provide funds
for all or any portion of the cost of acquiring, constructing, altering,
expanding, improving or repairing such property or assets used in connection
with such property.
"Redeemable Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness
(other than Preferred Stock) or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part.
"Sale/Leaseback Transaction" means an arrangement relating to
property owned on the Issue Date or thereafter acquired whereby the Company or
any of its Subsidiaries transfers such property to a Person and the Company or
any of its Subsidiaries leases it from such Person.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Company may not consolidate with or merge with or into any
person, or convey, transfer, or lease all or substantially all of its assets,
unless the following conditions have been satisfied:
(a) Either (1) the Company shall be the continuing
person in the case of a merger or (2) the resulting, surviving, or transferee
person, if other than the Company (the "Successor Company"), shall be a
corporation organized and existing under the laws of the United States, any
State, or the District of Columbia and shall expressly assume all of the
obligations of the Company under the Debt Securities and the Indenture;
(b) Immediately after giving effect to such
transaction (and treating any Indebtedness that becomes an obligation of the
Successor Company or any subsidiary of the Company as a result of such
transaction as having been incurred by the Successor Company or such subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and
(c) The Company shall have delivered to the Trustee
an officers' certificate and an opinion of counsel, each stating that such
consolidation, merger, or transfer complies with the Indenture.
<PAGE> 20
SATISFACTION AND DISCHARGE OF THE INDENTURE; DEFEASANCE
The Indenture shall generally cease to be of any further
effect with respect to a series of Debt Securities if (a) the Company has
delivered to the Trustee for cancellation all Debt Securities of such series
(with certain limited exceptions) or (b) all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year, and the Company shall have
deposited with the Trustee as trust funds the entire amount in the currency in
which the Debt Securities are denominated sufficient to pay at maturity or upon
redemption all such Debt Securities (and if, in either case, the Company shall
also pay or cause to be paid all other sums payable under the Indenture by the
Company).
In addition, the Company shall have a "legal defeasance
option" (pursuant to which it may terminate, with respect to the Debt Securities
of the particular series, all of its obligations under such Debt Securities and
the Indenture with respect to such Debt Securities) and "covenant defeasance
option" (pursuant to which it may terminate, with respect to the Debt Securities
of a particular series, its obligations with respect to such Debt Securities
under certain specified covenants contained in the Indenture). If the Company
exercises its legal defeasance option with respect to a series of Debt
Securities, payment of such Debt Securities may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option with
respect to a series of Debt Securities, payment of such Debt Securities may not
be accelerated because of an Event of Default related to the specified
covenants.
The Company may exercise its legal defeasance option or its
covenant defeasance option with respect to the Debt Securities of a series only
if (a) the Company irrevocably deposits in trust with the Trustee cash or U.S.
Government Obligations (as defined in the Indenture) for the payment of
principal, premium, and interest with respect to such Debt Securities to
maturity or redemption, as the case may be, (b) the Company delivers to the
Trustee a certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payment of principal and interest
when due and without reinvestment on the deposited U.S. Government Obligations
plus any deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay the principal, premium, and
interest when due with respect to all the Debt Securities of such series to
maturity or redemption, as the case may be, (c) 91 days pass after the deposit
is made and during the 91-day period no default described in clause (g) or (h)
under "Description of Debt Securities - Events of Default and Remedies" above
with respect to the Company occurs that is continuing at the end of such period,
(d) no Default has occurred and is continuing on the date of such deposit and
after giving effect thereto, (e) the deposit does not constitute a default under
any other agreement binding on the Company, and, in the case of Subordinated
Debt Securities, is not prohibited by the provisions of the Indenture relating
to subordination, (f) the Company delivers to the Trustee an opinion of counsel
to the effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment Company Act
of 1940, (g) the Company shall have delivered to the Trustee an opinion of
counsel addressing certain federal income tax matters relating to the
defeasance, and (h) the Company delivers to the Trustee an officer's certificate
and an opinion of counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as contemplated
by the Indenture have been complied with.
The Trustee shall hold in trust cash or U.S. Government
Obligations deposited with it as described above and shall apply the deposited
cash and the proceeds from deposited U.S. Government Obligations to the payment
of principal, premium, and interest with respect to the Debt Securities of the
defeased series. In the case of Subordinated Debt Securities, the money and U.S.
Government Obligations so held in trust will not be subject to the subordination
provisions of the Indenture.
THE TRUSTEE
The Company may maintain banking and other commercial
relationships with the Trustee and its affiliates in the ordinary course of
business and the Trustee may own Debt Securities.
<PAGE> 21
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in the following
ways: (i) through agents; (ii) through underwriters; (iii) through dealers; and
(iv) directly to purchasers.
Offers to purchase the Debt Securities may be solicited by
agents designated by the Company from time to time. Any such agent, who may be
deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the Debt Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on the
best efforts basis for the period of its appointment.
If any underwriters are utilized in the sale, the Company will
enter into an underwriting agreement with such underwriters at the time of sale
to them and the names of the underwriters and the terms of the transaction will
be set forth in the Prospectus Supplement, which will be used by the
underwriters to make resales to the public of the Debt Securities in respect of
which this Prospectus is delivered.
If a dealer is utilized in the sale of the Debt Securities in
respect of which the Prospectus is delivered, the Company will sell such Debt
Securities to the dealer, as principal. The Dealer may then resell such Debt
Securities to the public at varying prices to be determined by such dealer at
the time of resale.
Agents, dealers and underwriters may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize agents and underwriters or dealers to solicit offers by certain
purchasers to purchase the Debt Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject to only those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
LEGAL MATTERS
The validity of the Debt Securities offered hereby will be passed upon
for the Company by Jones, Day, Reavis & Pogue, Cleveland, Ohio, and for any
underwriters or agents by Cravath, Swaine & Moore, New York, New York.
<PAGE> 22
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in accounting and auditing. The consolidated financial statements and
schedule of the Company for each of the two years in the period ended December
31, 1994, appearing in or incorporated by reference in the Company's Annual
Report (Form 10-K) for the year ended December 31, 1995, as amended, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such consolidated
financial statements and schedule are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated (except for the Commission
registration fee) fees and expenses payable by the Company in connection with
the sale and distribution of the securities registered hereby other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
Commission registration fee $ 103,448.28
Printing and engraving costs 50,000.00
Accounting fees and expenses 50,000.00
Trustee fees and expenses 20,000.00
Legal fees and expenses (not including Blue Sky) 40,000.00
Blue Sky fees and expenses 15,000.00
Rating Agencies' fees 150,000.00
Miscellaneous expenses 21,551.72
------------
Total $ 450,000.00
============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article FOURTEENTH of the Registrant's Restated Certificate of
Incorporation provides as follows:
FOURTEENTH: Each person who is or was or had agreed to become a
Director or officer of the Corporation, or each such person who is or was
serving or had agreed to serve at the request of the Board of Directors or an
officer of the Corporation as an employee or agent of the Corporation or as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person), shall be indemnified by the
Corporation to the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable laws as presently or hereafter in
effect. Without limiting the generality or effect of the foregoing, the
Corporation may enter into on or more agreements with any person which provide
for indemnification greater or different than that provided in this Article. No
amendment to or repeal of this Article FOURTEENTH shall apply to or have
hereunder for or with respect to claims asserted before or after such amendment
or repeal arising from acts or omissions occurring in whole or in part before
the effective date of such amendment or repeal.
The Company carries directors' and officers' liability insurance that
covers certain liabilities and expenses of the Company's directors and officers.
Reference is also made to the indemnification provisions in the form of
Underwriting Agreement filed as exhibit 1.1 to this Registration Statement and
to the undertaking "(c)" in Item 17 of this Registration Statement.
<PAGE> 24
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following exhibits are filed herewith and made a part
hereof:
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
Number ----------------------
<S> <C>
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture between the Company and NBD Bank, as
Trustee, relating to the Debt Securities.*
5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity of the
securities being offered.*
12.1 Computation of Ratio of Earnings to Fixed Charges.**
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1).*
23.2 Consent of Price Waterhouse LLP.**
23.3 Consent of Ernst & Young LLP.**
24.1 Powers of Attorney.*
25.1 Statement of Eligibility of NBD Bank under the Trust Indenture
Act of 1939 on Form T-1 relating to the Indenture.*
- ------------------------------
<FN>
* Previously filed.
** To be filed by Amendment.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
<PAGE> 25
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on November 7, 1996.
<TABLE>
<S> <C>
M. A. HANNA COMPANY
By: /s/ John S. Pyke, Jr.
---------------------------------------------
John S. Pyke, Jr.
Vice President, General Counsel and Secretary
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
* MARTIN D. WALKER Chairman of the Board, Chief Executive November 7 1996
- ------------------------------------------------ Officer and Director
Martin D. Walker (Principal Executive Officer)
* DOUGLAS J. McGREGOR President, Chief Operating Officer and November 7, 1996
- ------------------------------------------------ Director
Douglas J. McGregor
* MICHAEL S. DUFFEY Vice President and Chief Financial Officer November 7, 1996
- ------------------------------------------------ (Principal Financial Officer)
Michael S. Duffey
* THOMAS E. LINDSEY Controller November 7, 1996
- ------------------------------------------------ (Principal Accounting Officer)
Thomas E. Lindsey
* B. CHARLES AMES Director November 7, 1996
- ------------------------------------------------
B. Charles Ames
* DR. CAROL A. CARTWRIGHT Director November 7, 1996
- ------------------------------------------------
Dr. Carol A. Cartwright
* WAYNE R. EMBRY Director November 7, 1996
- ------------------------------------------------
Wayne R. Embry
</TABLE>
<PAGE> 27
<TABLE>
<S> <C> <C>
* J. TREVOR EYTON Director November 7, 1996
- ----------------------------------------
J. Trevor Eyton
* GEORGE D. KIRKHAM Director November 7, 1996
- ------------------------------------------------
George D. Kirkham
* MARVIN L. MANN Director November 7, 1996
- ------------------------------------------
Marvin L. Mann
* RICHARD W. POGUE Director November 7, 1996
- ------------------------------------------------
Richard W. Pogue
<FN>
* The undersigned, by signing his name hereto, does hereby sign and execute this
Registration Statement pursuant to the Powers of Attorney executed by the
above-named officers and directors of the Registrant and which have been filed
with the Securities and Exchange Commission on behalf of such officers and
directors.
</TABLE>
/s/ John S. Pyke, Jr. November 7, 1996
- --------------------------------------------------
John S. Pyke, Jr., Attorney-in-Fact
<PAGE> 28
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C> <C>
1.1 Form of Underwriting Agreement. *
4.1 Form of Indenture between the Company and NBD Bank, as Trustee,
relating to the Debt Securities. *
5.1 Opinion of Jones, Day, Reavis & Pogue as to the validity of the
securities being offered. *
12.1 Computation of Ratio of Earnings to Fixed Charges. **
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1). *
23.2 Consent of Price Waterhouse LLP. **
23.3 Consent of Ernst & Young LLP. **
24.1 Powers of Attorney. *
25.1 Statement of Eligibility of NBD Bank under the Trust Indenture Act
of 1939 on Form T-1 relating to the Indenture. *
- ------------------------------------
<FN>
* Previously filed.
** To be filed by Amendment.
</TABLE>
<PAGE> 1
EXHIBIT 12.1
M.A. HANNA COMPANY
RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS)
<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>
CONSOLIDATED PRE-TAX INCOME FROM CONTINUING
OPERATIONS $77,309 $ 77,739 $ 98,821 $ 66,222 $37,654 $27,005 $(16,195)
ADJUSTMENTS
FIXED CHARGES - EXCLUDING CAPITALIZED
INTEREST
CONSOLIDATED INTEREST EXPENSE 15,582 20,295 26,278 28,549 32,258 32,509 23,221
INTEREST PORTION OF RENTAL EXPENSE 4,856 4,410 5,942 5,624 5,281 4,729 4,905
TOTAL FIXED CHARGES 20,438 24,705 32,220 34,173 37,539 37,238 28,126
ADJUSTED EARNINGS $97,747 $102,444 $131,041 $100,395 $75,193 $64,243 $ 11,931
RATIO OF EARNINGS TO FIXED CHARGES 4.78 4.15 4.07 2.94 2.00 1.73 0.42
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
WE HEREBY CONSENT TO THE INCORPORATION BY REFERENCE IN THE PROSPECTUS
CONSTITUTING PART OF THIS REGISTRATION STATEMENT ON FORM S-3 OF OUR REPORT DATED
JANUARY 29, 1996, WHICH APPEARS ON PAGE 38 OF THE 1995 ANNUAL REPORT TO
SHAREHOLDERS OF M.A. HANNA COMPANY, WHICH IS INCORPORATED BY REFERENCE IN M.A.
HANNA COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1995.
WE ALSO CONSENT TO THE INCORPORATION BY REFERENCE OF OUR REPORT ON THE FINANCIAL
STATEMENT SCHEDULE, WHICH APPEARS ON PAGE F-2 OF SUCH ANNUAL REPORT ON FORM
10-K. WE ALSO CONSENT TO THE REFERENCE TO US UNDER THE HEADING "EXPERTS" IN SUCH
PROSPECTUS.
PRICE WATERHOUSE LLP
CLEVELAND, OHIO
NOVEMBER 6, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
WE CONSENT TO THE REFERENCE TO OUR FIRM UNDER THE CAPTION "EXPERTS" IN AMENDMENT
NO. 1 TO THE REGISTRATION STATEMENT (FORM S-3 NO. 333-5763) AND RELATED
PROSPECTUS OF M.A. HANNA COMPANY FOR THE REGISTRATION OF $300,000,000 OF DEBT
SECURITIES AND TO THE INCORPORATION BY REFERENCE THEREIN OF OUR REPORT DATED
JANUARY 31, 1995, WITH RESPECT TO THE CONSOLIDATED FINANCIAL STATEMENTS AND
SCHEDULE OF M.A. HANNA COMPANY INCLUDED IN ITS ANNUAL REPORT (FORM 10-K) FOR THE
YEAR ENDED DECEMBER 31, 1995, AS AMENDED, FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
ERNST & YOUNG LLP
CLEVELAND, OHIO
NOVEMBER 6, 1996
