SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR QUARTER ENDED March 31, 1996
COMMISSION FILE NUMBER 1-5222
M. A. HANNA COMPANY
(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 34-0232435
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
SUITE 36-5000, 200 PUBLIC SQUARE, CLEVELAND, OHIO 44114-2304
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 216-589-4000
NOT APPLICABLE
Former name, former address and former fiscal year, if changed since last report
Indicate by check mark whether the registrant (l) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months, and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
Common Shares Outstanding, as of the close of the period
covered by this report 34,761,983.
<PAGE>
M. A. HANNA COMPANY AND CONSOLIDATED SUBSIDIARIES
INDEX
PAGE
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
Consolidated Statements of Income -
Three Months ended March 31, 1996 and 1995 2
Consolidated Balance Sheets -
March 31, 1996 and December 31, 1995 3
Consolidated Statements of
Cash Flows - Three Months Ended
March 31, 1996 and 1995 4
Notes to Consolidated Financial Statements 5-6
Item 2. Management's Discussion and Analysis of
Interim Financial Condition and Results
of Operations. 7-8
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders 9
Item 6. Exhibits and Reports on Form 8-K 9
<PAGE>
PART I
M.A. HANNA COMPANY AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
FIRST QUARTER
1996 1995
(Dollars in thousands
except per share data)
Net Sales $497,451 $492,772
Costs and Expenses
Cost of goods sold 405,995 402,268
Selling, general and administrative 58,312 56,681
Interest on debt 6,036 6,937
Amortization of intangibles 3,499 3,471
Other - net 183 2,337
474,025 471,694
Income from Continuing Operations Before
Income Taxes and Extraordinary Charge 23,426 21,078
Income taxes 10,073 9,064
Income from Continuing Operations Before
Extraordinary Charge 13,353 12,014
Income from discontinued operations - 2,931
Extraordinary charge (1,575) -
Net Income $ 11,778 $ 14,945
Net Income per Share
Primary
Continuing operations $ 0.29 $ 0.26
Discontinued operations - 0.06
Extraordinary charge (0.03) -
Net income $ 0.26 $ 0.32
Fully diluted
Continuing operations $ 0.28 $ 0.25
Discontinued operations - 0.06
Extraordinary charge (0.03) -
Net income $ 0.25 $ 0.31
Dividends per common share $ 0.097 $ 0.090
<PAGE>
M.A. HANNA COMPANY AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited)
<TABLE>
March December
31, 1996 31, 1995
<CAPTION> (Dollars in thousands)
<S> <C> <C>
Assets
Current Assets
Cash and cash equivalents $ 40,368 $ 111,235
Receivables 319,142 268,016
Inventories:
Finished products 130,143 126,411
Raw materials and supplies 46,971 40,390
177,114 166,801
Prepaid expenses 5,132 5,693
Deferred income taxes 22,281 22,867
Net assets of discontinued operations 16,918 -
Total current assets 580,955 574,612
Property, Plant and Equipment 416,608 393,314
Less allowances for depreciation 179,691 166,293
236,917 227,021
Other Assets
Goodwill and other intangibles 348,275 321,778
Investments and other assets 73,486 73,067
Deferred income taxes 35,030 35,118
456,791 429,963
$1,274,663 $1,231,596
Liabilities and Stockholders' Equity
Current Liabilities
Notes payable to banks $ 2,069 $ 1,328
Trade payables and accrued expenses 372,396 333,176
Current portion of long-term debt 12,052 747
Total current liabilities 386,517 335,251
Other Liabilities 177,542 179,580
Long-term Debt
Senior notes 192,770 227,270
Other 22,798 4,717
215,568 231,987
Stockholders' Equity
Preferred stock, without par value
Authorized 5,000,000 shares
Issued -0- shares - -
Common stock, par value $1
Authorized 50,000,000 shares
Issued 43,341,217 shares at March 31, 1996 and
43,274,273 shares at December 31, 1995 43,341 43,274
Capital surplus 353,869 324,273
Retained earnings 389,083 381,709
Associates ownership trust (148,065) (121,363)
Cost of treasury stock (8,579,234 shares at March 31, 1996
and 8,631,355 shares at December 31, 1995) (136,571) (137,181)
Minimum pension liability adjustment (7,522) (7,522)
Accumulated translation adjustment 901 1,588
495,036 484,778
$1,274,663 $1,231,596
</TABLE>
<PAGE>
M.A. HANNA COMPANY AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
THREE MONTHS ENDED
MARCH 31
1996 1995
(Dollars in thousands)
Cash Provided from (Used for) Operating Activities
Net income $ 11,778 $ 14,945
Discontinued operations - 2,794
Depreciation and amortization 12,370 11,609
Companies carried at equity:
Income (995) (281)
Dividends received 1,415 850
Changes in operating assets and liabilities:
Receivables (24,201) (36,943)
Inventories 1,129 (10,826)
Prepaid expenses 907 629
Trade payables and accrued expenses 3,953 4,077
Restructuring payments (1,294) (3,344)
Other 2,711 2,636
Extraordinary charge 2,582 -
Net operating activities 10,355 (13,854)
Cash Provided from (Used for) Investing Activities
Capital expenditures (7,637) (12,021)
Acquisitions of businesses, less cash acquired (45,812) -
Acquisition payments (625) (638)
Other 1,174 (1,766)
Net investing activities (52,900) (14,425)
Cash Provided from (Used for) Financing Activities
Cash dividends paid (4,403) (4,178)
Proceeds from the sale of common stock 941 381
Purchase of shares for treasury (538) (6,500)
Increase in debt 11,787 51,600
Reduction in debt (36,351) (8,575)
Net financing activities (28,564) 32,728
Effect of exchange rate changes on cash 242 256
Cash and Cash Equivalents
Increase (decrease) (70,867) 4,705
Beginning of period 111,235 23,105
End of period $ 40,368 $ 27,810
Cash paid during period
Interest $ 11,296 $ 12,387
Income taxes 1,352 9,940
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 1996
Basis of Presentation
The accompanying unaudited condensed consolidated financial
statements have been prepared in accordance with the instructions
to Form 10-Q and in the opinion of the Company include all
adjustments necessary to present fairly the results of
operations, financial position, and changes in cash flow.
Reference should be made to the footnotes included in the 1995
Annual Report.
The results of operations for the interim periods are not
necessarily indicative of the results expected for the full year.
Acquisitions
In January 1996, the Company announced the successful completion
of its tender offer for the outstanding stock of CIMCO, Inc., a
producer of thermoplastic compounds and plastic components.
Consistent with its strategy as an intermediary between the
polymer producer and the end product manufacturer, the Company
intends to sell CIMCO's plastic components business, which has
been reported as a discontinued operation in the accompanying
financial statements. In March 1996, the Company acquired Victor
International Plastics Ltd., a leading producer of color
masterbatch in the United Kingdom. Both acquisitions were
accounted for using the purchase method of accounting. Had the
acquisitions been made at the beginning of 1995, reported pro
forma results of operations for the first quarter of 1996 and 1995
would not be materially different.
Discontinued Operations
Net assets of discontinued operations includes the net assets of
CIMCO's plastic components business. The recorded value for the
net assets represents the Company's estimate of net realizable
value and include a provision for operating losses until
disposition. The Company believes the sale of this business will
close late in the second quarter.
Income from discontinued operations in the first quarter of 1995
includes earnings from Day International, a producer of end
products for the printing and textiles industries, which was sold
in the second quarter of 1995.
Net Income Per Share of Common Stock
Primary net income per share of common stock is computed by
dividing net income applicable to common stock by the average
number of shares outstanding during the period (30,482,506 in
1996 and 31,053,936 in 1995). Shares of common stock held by the
Associates Ownership Trust ("AOT") enter into the determination
of the average number of shares outstanding as the shares are
released from the AOT to fund a portion of the Company's
<PAGE>
obligations under certain of its employee compensation and
benefit plans. The effect of assuming the exercise of stock
options was not significant in 1996 and 1995.
The number of shares used to compute fully diluted net income
per share is based on the number of shares used for primary net
income per share increased by the common stock equivalents which
would arise from the exercise of stock options and stock
warrants. The average number of shares used in the computation
were 31,343,245 in 1996 and 31,678,640 in 1995.
On May 1, 1996, the Company announced a three-for-two stock split
for shareholders of record on May 24, 1996 to be effected in the
form of a stock dividend. All per share amounts have been restated
to reflect the three-for-two stock split.
Long-term Debt
In 1996, the Company repurchased $34,650,000 principal amount of
Senior Notes in the open market resulting in an extraordinary charge
pf $2,582,000 ($1,575,000 after tax).
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
INTERIM FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
Net sales increased from $492.8 million in 1995 to $497.5
million in 1996. Sales from processing businesses were
$272.4 million in 1995 compared with $270.7 million in
1996. The decrease is due to lower unit volumes, partially
offset by acquisitions consummated in 1996. Distribution
sales increased $4.1 million to $223.1 million in 1996 due
to higher volume, partially offset by lower pricing. Sales
from other operations were comparable with prior year
levels.
Cost of goods sold increased $3.7 million to $406.0 million
in 1996 and corresponds with the increase in net sales.
Gross margins were 18.4% in both periods. Gross margins in
1995 were impacted by a $2.4 million provision for
inventories valued by the last-in first-out cost method.
Absent this provision, gross margins would have been 18.9%
in 1995. The deterioration in gross margins is due in part
to the mix of sales between processing and distribution
businesses and a lower absorption of fixed costs.
Selling, general and administrative expenses increased $1.6
million. As a percentage of sales, selling, general and
administrative expenses were 11.7% in 1996 and 11.5% in
1995.
Interest on debt decreased from $6.9 million in 1995 to
$6.0 million in 1996 due to the repayment in 1995 of the
financing for the 1994 acquisition of Th. Bergmann. In
addition, the Company repurchased $34.5 million of its 9%
Senior Notes in the first quarter of 1996, resulting in an
after-tax extraordinary charge of $1.6 million.
Income from discontinued operations in the first quarter of
1995 includes earnings from Day International, a producer
of end products for the printing and textiles industries,
which was sold in the second quarter of 1995.
Liquidity and Sources of Capital
Operating activities provided $10.4 million in the first
quarter of 1996. This amount includes the use of $18.2
million for working capital and $1.3 million for the
payment of obligations related to prior restructurings.
Investment activities used $52.9 million, which includes
$7.6 million for capital expenditures and $45.8 million for
the acquisition of CIMCO and Victor International.
Financing activities used $28.6 million and include $24.6
million for the reduction of outstanding indebtedness and
$4.4 million for dividends.
The Company has a credit agreement which provides
commitments for borrowings up to $200 million through June
1998. The arrangement provides for interest rates to be
<PAGE>
determined at the time of borrowing based on a choice of
formulas specified in the agreement. At March 31, 1996,
there were $10.4 million of outstanding borrowings
supported by this agreement.
The current ratio was 1.5:1 at March 31, 1996 compared with
1.7:1 at December 31, 1995. Debt to total capital was 31.7%
at March 31, 1996 and 32.6% at December 31, 1995.
Environmental Matters
The Company is subject to various laws and regulations
concerning environmental matters. The Company is committed
to a long-term environmental protection program that
reduces releases of hazardous materials into the
environment as well as to the remediation of identified
existing environmental concerns.
Claims have been made against a subsidiary of the Company
for costs of environmental remediation measures taken or to
be taken in connection with operations that have been sold
or closed. These include the clean-up of Superfund sites
and participation with other companies in the clean-up of
hazardous waste disposal sites, several of which have been
designated as Superfund sites. Reserves for such
liabilities have been established and no insurance
recoveries have been anticipated in the determination of
reserves. In management's opinion, the aforementioned
claims will be resolved without material adverse effect on
the financial position or results of operations of the Company.
PART II
Item 4. Submission of Matters to a Vote of Security Holders
a.) Annual meeting of stockholders held May 1, 1996.
b.) Proxies for the meeting were solicited pursuant
to Regulation 14 under the Securities
Exchange Act of 1934; there was no solicitation in
opposition to management nominees as listed in the
the Proxy Statement; and nine directors were
elected.
c.) The appointment of Price Waterhouse LLP as the
Company's independent public accountants for the year
1996 was ratified and approved. There were
28,938,559 shares voted in the affirmative, 25,545
shares voted in the negative and 89,621 shares abstained.
d.) The amendment to the amended Certification of Incorporation
to increase the authorized number of shares of the Company's
common stock from 50,000,000 to 100,000,000 was ratified
and approved. There were 27,143,550 shares voted in the
affirmative, 1,616,744 shares voted in the negative and
293,431 shares abstained.
Item 6. Exhibits and Reports on Form 8-K
a.) Exhibits
(3)(i) Articles of Incorporation, Amendment dated
May 1, 1996 to Certificate of Incorporation and
complete copy of Amended Certificate of Incorporation
as currently in effect.
b.) No reports on Form 8-K were filed during the
quarter for which this report is filed.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
M. A. HANNA COMPANY (Registrant)
/s/ Thomas E. Lindsey
Thomas E. Lindsey
Controller
(Principal Accounting Officer)
Date: May 14, 1996
CERTIFICATE OF INCORPORATION
OF
M. A. HANNA COMPANY
As restated and amended to and including May 1, 1996
FIRST: The name of this Corporation is M. A. Hanna Company.
SECOND: The principal office and place of business of the
Corporation in the State of Delaware is and shall be located at
Number 1209 Orange Street in the City of Wilmington, County of
New Castle, and the name and address of its Resident Agent is The
Corporation Trust Company, Number 1209 Orange Street, Wilmington,
Delaware 19801.
THIRD: The nature of the business and the objects and purposes
to be transacted, promoted or carried on by this Corporation are
to do any or all the things herein mentioned as fully and to the
same extent as natural persons might or could do, and in any part
of the world, viz.:
(a) To engage in exploring for, mining, quarrying,
milling, concentrating, converting, smelting, treating, preparing
for market, manufacturing, buying, selling, exchanging and
otherwise producing and dealing in all kinds of ores, metals and
minerals, and the products and by-products thereof of every kind
and description and by whatsoever process the same can be or may
hereafter be produced, and generally and without limit as to
amount, to buy, sell, exchange, lease, acquire and deal in lands,
mines and mineral rights and claims, and to conduct all business
appertaining thereto.
(b) To engage in a general transportation and
navigation business and a general import and export business, and
in connection therewith to construct, purchase, charter, lease or
otherwise acquire, own, manage, operate and maintain, and to
sell, charter, lease, mortgage or, otherwise dispose of or
encumber, steam and motor ships, vessels and water craft of all
kinds, surface transportation facilities of all kinds, and
interests therein, and yards, docks, wharves and wharfage
facilities, and all kinds of loading and unloading equipment and
facilities.
(c) To purchase, generate, create or otherwise
acquire, use, sell or otherwise dispose of electric current and
electric, steam and water power of every kind and description.
(d) To acquire all or any part of the good will,
rights, property and business of any person, firm, trust,
association or corporation, heretofore or hereafter created, to
pay for the same in cash or in stock or bonds of this Corporation
or otherwise, hold, utilize and in any manner dispose of the
whole or any part of the rights and property so acquired, assume
in connection therewith any liabilities of any such person, firm,
trust, association or corporation and conduct in any lawful
manner the whole or any part of the business thus acquired.
(e) To aid by loan, guaranty, subsidy or in any other
manner whatsoever, in so far as may be permitted by law, any
corporation or corporations, organized under the laws of the
State of Delaware or of any other state, or of any country,
nation or government, any shares of the capital stock, or voting
trust certificates for shares of the capital stock or bonds, or
other securities or evidences of indebtedness of which shall be
held by or for the Corporation, or in which, or, in the welfare
of which, the Corporation shall have any interest, and to do any
<PAGE>
acts or things designed to protect, preserve, improve or enhance
the value of any such shares, voting trust certificates, bonds or
other securities or evidences of indebtedness, and to do any and
all acts designed to accomplish any such purpose.
(f) To guarantee the payments of dividends upon, or
any sinking fund payments in respect of, any shares of the
capital stock, or the payment of the principal of, or interest
on, or sinking fund payments in respect of, any bonds or other
securities or evidences of indebtedness, or the performance of
any contract, of any other corporation, trust or association in
so far as and to the extent that a guaranty in respect thereof by
the Corporation may be permitted by law.
(g) To adopt, apply for, obtain, register, purchase,
take on lease or otherwise acquire, and to maintain, protect,
hold, use, own, exercise, develop, operate, and introduce, and to
sell, grant licenses or other rights in respect of, assign,
pledge or otherwise dispose of or turn to account any trademarks,
trade names, patents, patent rights, copyrights and distinctive
marks and rights analogous thereto, and inventions, improvements,
processes, formulas and the like, including such thereof as may
be covered by, used in connection with, or secured or received
under, Letters Patent of the United States of America or
elsewhere, or otherwise, which may be deemed capable of use in
connection with any of the purposes of the Corporation herein
stated; and to acquire, use, exercise or otherwise turn to
account licenses in respect of any such trademarks, trade names,
patents, patent rights, copyrights, inventions, improvements,
processes, formulas and the like.
(h) To enter into, make and perform contracts of every
sort and description with any person, firm, trust, association,
corporation, municipality, body politic, county, state or
government or colony or dependency thereof.
(i) To borrow or raise moneys for any of the purposes
of the Corporation without limit as to amount; from time to time
to draw, make, accept, endorse, execute and issue promissory
notes, drafts, bills of exchange, and warrants, and to issue
bonds, debentures, notes, or other obligations, negotiable or non-
negotiable, secured or unsecured, of the Corporation for moneys
so borrowed, or in payment for property acquired, or for any of
the other objects or purposes of the Corporation or in connection
with its business; to secure such bonds, debentures, notes and
other obligations by mortgage or mortgages, or deed or deeds of
trust, or pledge or other lien upon any or all of the property,
rights, privileges or franchises of the Corporation wheresoever
situated, acquired or to be acquired, and to pledge, sell or
otherwise dispose of any or all of such bonds, debentures, notes
and other obligations of the Corporation for its corporate
purposes.
(j) To manufacture, purchase or otherwise acquire,
own, mortgage, pledge, sell, assign and transfer, or otherwise
dispose of, to invest, trade, deal in and deal with goods, wares
and merchandise and real and personal property of every class and
description, and in any part of the world.
(k) In general, to carry on any business not contrary
to the laws of the State of Delaware.
(l) To conduct its business, without restriction or
limit as to amount, in all or any of its branches in the State of
Delaware and in any or all other states, territories,
possessions, colonies, and dependencies of the United States of
America, and in the District of Columbia, and in any or all
foreign countries (provided, always, that the Corporation shall
<PAGE>
not construct, maintain or operate any public utility within the
State of Delaware); to have one or more offices within and
outside the State of Delaware; and to purchase, take on lease or
otherwise acquire, own, hold, develop, operate, lease, mortgage
or pledge, sell, assign, transfer, exchange, or otherwise dispose
of or turn to account, and convey real and personal property of
every class and description or any interest therein, including
without limitation developed or undeveloped mineral properties
and any and all types of interests therein anywhere in the world.
(m) To carry out all or any part of the foregoing
objects and purposes as principal, agent, contractor, or
otherwise, either alone or in conjunction with any person, firm,
trust, association or other corporation, and in any part of the
world; and, in carrying on its business and for the purpose of
attaining or furthering any of its objects or purposes, to make
and perform contracts of any kind and description, to do such
acts and things, and to exercise any and all such powers, as a
natural person could lawfully make, perform, do or exercise,
provided that the same be not inconsistent with the laws of the
State of Delaware.
(n) To do any and all necessary, suitable, convenient
or proper for, or in connection with, or incidental to, the
accomplishment of any of the purposes, or the attainment of any
one or more of the objects herein enumerated, or designed
directly or indirectly to promote the interests of the
Corporation, or to enhance the value of any of its properties;
and in general to do any and all things and exercise any and all
powers which it may now or hereafter be lawful for the
Corporation to do or to exercise under the laws of the State of
Delaware that may now or hereafter be applicable to the
Corporation.
It is the intention that, except where otherwise expressed in
this Article THIRD, the objects and purposes specified in any of
the foregoing clauses of this Article shall not in anywise be
limited or restricted by reference to, or inference from, the
terms of any other clause of this Article or of any other Article
of this Certificate of Incorporation, but that the objects and
purposes specified in each of the clauses of this Article shall
be regarded as independent objects and purposes.
It is also the intention that said clauses be construed as powers
as well as objects and purposes; and, generally, that the
Corporation shall be authorized to exercise and enjoy all other
powers, rights and privileges granted by the laws of the State of
Delaware to corporations organized thereunder, and the
enumeration herein of certain powers is not intended as exclusive
of, or a waiver of, any of the powers, rights or privileges
granted or conferred by said laws now or hereafter in force;
provided, however, that the Corporation shall not carry on the
business of constructing, maintaining and operating public
utilities in the State of Delaware, nor carry on any business or
exercise any powers in any state, district, territory, possession
or country which a corporation organized under the laws of such
state, district, territory, possession or country could not carry
on or exercise, except to the extent permitted or authorized by
the laws of such state, district, territory, possession or
country.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 105,000,000,
consisting of 5,000,000 shares of Preferred Stock without par
value (hereinafter called "Serial Preference Stock") and
100,000,000 shares of Common Stock, par value $1 each
(hereinafter called "Common Shares").
The express terms of the shares of each class are as follows:
<PAGE>
Division A
Express Terms of the Serial Preference Stock
Section 1. Serial Preference Stock may be issued from time to
time in one or more series. All shares of Serial Preference
Stock shall be of equal rank, and except in respect of the
matters that may be fixed by the Board of Directors as
hereinafter provided, shall be identical, and each share of each
series shall be identical with all other shares of such series,
except as to the date from which dividends are cumulative.
Subject to the provisions of this Division, which shall apply to
all Serial Preference Stock, the Board of Directors hereby is
authorized to provide for the issuance of shares of Serial
Preference Stock in series, and by filing a certificate pursuant
to the applicable law of the State of Delaware, to establish from
time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and
rights of the shares of each such series and the qualifications,
limitations and restrictions thereof.
The authority of the Board of Directors with respect to each
series shall include, but not limited to, determination of the
following:
(a) The designation of the series which may be by
distinguishing number, letter and title.
(b) The number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise
provided in the creation of the series) increase or decrease (but
not below the number of shares thereof then outstanding).
(c) The quarterly dividend rate of the series.
(d) The dates at which dividends, if declared, shall
be payable, and the dates from which dividends shall be
cumulative.
(e) The redemption rights and price or prices, if any,
for shares of the series.
(f) The terms and amount of any sinking fund provided
for the Purchase or redemption of shares of the series.
(g) The amounts payable on shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
(h) Whether the shares of the series shall be
convertible into shares of any other class or series of shares of
the Corporation, and, if so, the specification of such other
class or series, the conversion price or prices or rate or rates,
any adjustments thereof, the date or dates as of which such
shares shall be convertible and all other terms and conditions
upon which such conversion may be made.
(i) Restrictions (in addition to those set forth in
Section 6(b)of this Division)on the issuance of shares of the
same series or of any other class or series.
(j) The voting rights, if any, of the holders of such
series in respect of matters other than those of which voting
rights are specifically provided in Section 6 of this Division.
<PAGE>
Section 2. The holders of Serial Preference Stock of each series,
in preference to the holders of Common Shares, shall be entitled
to receive out of any funds legally available and when and as
declared by the Board of Directors dividends in cash at the rate
for such series fixed in accordance with the provisions of
Section 1 of this Division and no more, payable quarterly on the
dividend payment dates fixed for such series. Such dividends
shall be cumulative, in the case of shares of each particular
series, from and after the date or dates fixed with respect to
such series. No dividends may be paid upon or set apart for any
of the Serial Preference Stock for any quarterly dividend period
unless (i) all dividends payable upon any then outstanding Serial
Preference Stock on any dividend payment date occurring prior to
such time shall have been paid or funds therefor set apart, and
(ii) at the same time a like dividend, ratably in proportion to
the respective quarterly dividend rates, shall be paid upon all
shares of Serial Preference Stock then outstanding and entitled
to receive such dividend or funds therefor set apart.
Section 3. In no event, so long as any Serial Preference Stock
shall be outstanding, shall any dividends, except a dividend
payable in Common Shares, be paid or declared or any distribution
be made on the Common Shares, nor shall any Common Shares be
purchased, retired or otherwise acquired by the Corporation
(except out of the proceeds of the sale of Common Shares received
by the Corporation on or subsequent to the date on which shares
of Serial Preference Stock are first issued), unless (i) all
accrued dividends upon all Serial Preference Stock then
outstanding payable on all dividend payment dates occurring on or
prior to the date of such action shall have been paid or funds
therefor set apart, and (ii) at the date of such action there
shall be no arrearages with respect to the redemption of Serial
Preference Stock of any series from any sinking fund provided for
shares of such series in accordance with the provisions of
Section 1 of this Division.
Section 4. (a) Subject to the express terms of each series, the
Corporation may from time to time redeem all or any part of the
Serial Preference Stock of any series at the time outstanding (i)
at the option of the Board of Directors at the applicable
redemption price for such series fixed in accordance with the
provisions of Section I of this Division, or (ii) in fulfillment
of the requirements of any sinking fund provided for shares of
such series at the applicable sinking fund redemption price fixed
in accordance with the provisions of Section I of this Division,
together in each case with (I) all the then unpaid dividends upon
such shares payable on all dividend payment dates for such series
occurring on or prior to the redemption date plus (II) if the
redemption date is not a dividend payment date for such series, a
proportionate dividend, based on the number of elapsed days, for
the period from the day following the most recent such dividend
payment date through the redemption date.
(b) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Serial
Preference Stock to be redeemed at their respective addresses
then appearing on the books of the Corporation, not fewer than 30
days nor more than 60 days prior to the date fixed for such
redemption. At any time before or after notice has been given as
above provided, the Corporation may deposit the aggregate
redemption price of the shares of Serial Preference Stock to be
redeemed, together with an amount equal to the aggregate amount
of dividends payable upon such redemption, with any bank in
Cleveland, Ohio, or New York, New York, having capital and
surplus of more than $5,000,000, named in such notice, and direct
that such deposited amount be paid to the respective holders of
the shares of Serial Preference Stock so to be redeemed upon
surrender of the stock certificate or certificates held by such
holders. Upon the giving of such notice and the making of such
deposit, such holders shall cease to be stockholders with respect
<PAGE>
to such shares and shall have no interest in or claim against the
Corporation with respect to such shares except only the right to
receive such money from such bank without interest or to
exercise, before the redemption date, any unexpired privileges of
conversion.
(c) In case fewer than all of the outstanding shares
of any series of Serial Preference Stock are to be redeemed, the
Corporation shall select pro rata or by lot the shares so to be
redeemed in such manner as shall be prescribed by its Board of
Directors.
(d) If the holders of shares of Serial Preference
Stock which shall have been called for redemption shall not,
within six years after the notice prescribed in Section 4(b)
above has been given, claim the amount deposited for the
redemption thereof, any such bank shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank
and the Corporation shall be relieved of all responsibility in
respect thereof and to such holders.
(e) Any shares of Serial Preference Stock which are
(i) redeemed by the Corporation pursuant to the provisions of
this Section 4, (ii) purchased and delivered in satisfaction of
any sinking fund requirements provided for shares of any series
of Serial Preference Stock, (iii) converted in accordance with
the express terms of any such series, or (iv) otherwise acquired,
shall resume the status of authorized and unissued shares of
Serial Preference Stock without serial designation.
Section 5. (a) The holders of Serial Preference Stock of any
series shall, in case of liquidation, dissolution or winding up
of the affairs of the Corporation, be entitled to receive in full
out of the assets of the Corporation, including its capital,
before any amount shall be paid or distributed among the holders
of the Common Shares, the amount fixed with respect to shares of
such series in accordance with the provisions of Section I of
this Division, plus an amount equal to (i) all then unpaid
dividends upon such shares payable on all dividend payment dates
for such series occurring on or prior to the date of payment of
the amount due pursuant to such liquidation, dissolution or
winding up, plus (ii) if such date is not a dividend payment date
for such series, a proportionate dividend, based on the number of
elapsed days, for the period from the day following the most
recent such dividend payment date through such date of payment of
the amount due pursuant to such liquidation, dissolution or
winding up. In case the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon
all outstanding shares of Serial Preference Stock of the full
preferential amount to which they are respectively entitled, then
such net assets shall be distributed ratably upon outstanding
shares of Serial Preference Stock in proportion to the full
preferential amount to which each such share is entitled.
After payment to holders of Serial Preference Stock of the full
preferential amounts as aforesaid, holders of Serial Preference
Stock as such shall have no right or claim to any of the
remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation
into or with any other corporation, or the merger of any other
corporation into it, or the sale, lease or conveyance of all or
substantially all the property or business of the Corporation,
shall not be deemed to be a dissolution, liquidation or winding
up for the purposes of this Division.
<PAGE>
Section 6. (a) Except as specifically provided in this
Division or by statute and except as may be provided by the Board
of Directors in the express terms of any series of the Serial
Preference Stock, the holders of outstanding Serial Preference
Stock shall not be entitled to vote.
If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Serial Preference Stock at
the time outstanding in an amount equivalent to six quarterly
dividends on such series of Serial Preference Stock, whether or
not earned or declared, the holders of Serial Preference Stock of
all series voting separately as a class and in addition to any
other rights which the shares of any series may have to vote for
Directors, shall thereafter be able to elect, as hereinafter
provided, two Directors of the Corporation who shall serve,
except as hereinafter provided, until the next annual meeting of
the stockholders and until their successors have been elected and
qualified. When the special class voting rights provided for
herein shall have become vested, they shall remain so vested
until all accrued and unpaid dividends on the Serial Preference
Stock of all series then outstanding shall have been paid or
funds therefor set apart, whereupon the terms of Directors
elected by the holders of Serial Preference Stock shall
automatically terminate and the holders of Serial Preference
Stock shall be divested of their special class voting rights in
respect of subsequent elections of Directors, subject to the
revesting of such special class voting rights in the event
hereinabove specified in this paragraph.
In the event of default entitling the holders of Serial
Preference Stock to elect two Directors as above specified, a
special meeting of the holders of Serial Preference Stock for the
purpose of electing such Directors shall be called by the
Secretary of the Corporation upon written request of, or upon
prior written notice to the Secretary of the Corporation may be
called by, the holders of record of at least 10% of the shares of
Serial Preference Stock of all series at the time outstanding,
and notice thereof shall be given in the same manner as that
required for the annual meeting of stockholders; provided,
however, that the Corporation shall not be required, and the
holders of Serial Preference Stock shall not be entitled, to call
such special meeting if the annual meeting of stockholders shall
be held within 90 days after the date of receipt by the Secretary
of the Corporation of the foregoing written request or notice
from the holders of Serial Preference Stock. At any annual
meeting of stockholders or special meeting called for such
purpose at which the holders of Serial Preference Stock shall be
entitled to elect Directors, the holders of 35% of the then
outstanding shares of Serial Preference Stock of all series,
present in person or by proxy, shall be sufficient to constitute
a quorum for such purpose, and the vote of the holders of a
majority of such shares so present at any such meeting at which
there shall be a quorum shall be necessary and sufficient to
elect the members of the Board of Directors which the holders of
Serial Preference Stock are entitled to elect as hereinabove
provided. If at any such meeting there shall be less than a
quorum for such purpose present, the holders of a majority of the
shares of Serial Preference Stock so present may adjourn the
meeting for such purpose only from time to time without notice
other than announcement at the meeting until a quorum shall
attend.
The two Directors who may be elected by the holders of Serial
Preference Stock pursuant to the foregoing provisions shall be in
addition to the whole authorized number of Directors of the
Corporation fixed in the By-laws, and nothing in such provisions
shall prevent any change otherwise permitted in such whole
authorized number of Directors of the Corporation or require the
resignation of any Director elected otherwise than pursuant to
such provisions.
<PAGE>
(b) Except as hereinafter provided, the affirmative vote of
the holders of at least two-thirds of the shares of Serial
Preference Stock at the time outstanding, given in person or by
proxy at a meeting called for the purpose at which the holders of
Serial Preference Stock shall vote separately as a class, shall
be necessary to effectuate or validate:
(i) Any amendment, alteration or repeal of any
provision of the Amended Certificate of Incorporation,
or of the By-laws, of the Corporation, which affects
adversely the voting powers, rights or preferences of
the holders of Serial Preference Stock or reduces the
time for any notice to which the holders of Serial
Preference Stock may be entitled; provided, however,
that if such amendment, alteration or repeal affects
adversely the rights or preferences of one or more but
not all series of Serial Preference Stock at the time
outstanding, only the affirmative vote of the holders
of at least two-thirds of each series so affected
shall be required; and provided, further, that the
amendment of the provisions of the Amended Certificate
of Incorporation so as to authorize or to increase or
decrease the authorized amount of any stock ranking
junior to the Serial Preference Stock shall not be
deemed to affect adversely the voting powers, rights
or preferences of the holders of Serial Preference
Stock; for the purpose of this subsection the
reference to stock "ranking junior to the Serial
Preference Stock" means and includes all stock of the
Corporation in respect of which the rights of the
holders thereof both as to the payment of dividends
and as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of
the Corporation are junior and subordinate to the
rights of the holders of the Serial Preference Stock;
(ii) Any increase in the authorized amount of Serial
Preference Stock or the authorization or creation, or
any increase in the authorized amount, of any stock of
any class or any security convertible into stock of
any class, ranking prior to or on a parity with the
Serial Preference Stock;
(iii) The voluntary dissolution, liquidation or
winding up of the affairs of the Corporation;
(iv)The sale, lease or conveyance by the Corporation
of all or substantially all its property or assets; or
(v) The merger or consolidation of the Corporation
with or into any other corporation, unless the
corporation resulting from such merger or consolidation
will have after such merger or consolidation no class
of stock and no other securities either authorized or
outstanding ranking prior to or on a parity with Serial
Preference Stock, except the same number of shares of
stock and the same amount of other securities with the
same rights and preferences as the stock and securities
of the Corporation respectively authorized and
outstanding immediately preceding such merger or
consolidation, and each holder of Serial Preference
Stock immediately preceding such merger or
consolidation shall receive the same number of shares,
with substantially the same rights and preferences, of
the resulting corporation; provided, however, that no
such consent of the holders of Serial Preference Stock
shall be required if, at or prior to the time when such
amendment, alteration or repeal is to take effect or
when the issuance of any such stock or convertible
security ranking prior to or on a parity with, or any
such additional shares of, the Serial Preference Stock
<PAGE>
is to be made, or when such consolidation or merger,
voluntary dissolution, liquidation or winding up, sale,
lease or conveyance, merger or consolidation is to take
effect, as the case may be, provision is to be made for
the redemption of all shares of Serial Preference Stock
at the time outstanding or, in the case of any such
amendment, alteration or repeal, as to which the
consent of less than all series of Serial Preference
Stock would otherwise be required, for the redemption
of all shares of such series of Serial Preference Stock
the affirmative vote of which otherwise would be
required.
Section 7. The holders of Serial Preference Stock shall have
no preemptive right to purchase, or have offered to them for
purchase, any shares or other securities of the Corporation,
whether now or hereafter authorized.
Section 8. If and to the extent that there are created series
of Serial Preference Stock which are convertible (hereinafter
called "convertible series") into Common Shares or into shares of
any other class or series of the Corporation (hereinafter
collectively called "conversion shares"), the following terms and
provisions shall be applicable to all convertible series, except
as may be otherwise expressly provided in the terms of any such
series.
(a) The holder of each share of a convertible series
may exercise the conversion privilege in respect thereof by
delivering to any transfer agent for the respective series the
certificate for the share to be converted and written notice that
the holder elects to convert such share. Conversion shall be
deemed to have been effected immediately prior to the close of
business on the date when such delivery is made, and such date is
referred to in this Section as the "conversion date". On the
conversion date or as promptly thereafter as practicable the
Corporation shall deliver to the holder of the stock surrendered
for conversion, or as otherwise directed by him in writing, a
certificate for the number of full conversion shares deliverable
upon the conversion of such stock and a check or cash in respect
of any fraction of a share as provided in subsection (b) of this
Section. The person in whose name the stock certificate is to be
registered shall be deemed to have become a holder of the
conversion shares of record on the conversion date. No
adjustment shall be made for any dividends on shares of stock
surrendered for conversion or for dividends on the conversion
shares delivered on conversion.
(b) The Corporation shall not be required to deliver
fractional shares upon conversion of shares of a convertible
series. If more than one share shall be surrendered for
conversion at one time by the same holder, the number of full
conversion shares delivered upon conversion thereof shall be
computed on the basis of the aggregate number of shares so
surrendered. If any fractional interest in a conversion share
would otherwise be deliverable upon the conversion, the
Corporation shall in lieu of delivering a fractional share
therefor make an adjustment therefor in cash at the current
market value thereof, computed (to the nearest cent) on the basis
of the closing price of the conversion share on the last business
day before the conversion date.
For the purpose of this Section, the "closing price of the
conversion share" on any business day shall be the last reported
sales price regular way per share on such day, or, in case no
such reported sales takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange, or, if the conversion shares are
not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which the conversion
shares are listed or admitted to trading as determined by the
Board of Directors, which determination shall be conclusive, or,
if not listed or admitted to trading on any national securities
<PAGE>
exchange, the mean between the average bid and asked prices per
conversion share in the over-the-counter market as furnished by
any member of the National Association of Securities Dealers
selected from time to time by the Board of Directors for that
purpose; and "business day" shall be each day on which the New
York Stock Exchange or other national securities exchange or over-
the-counter market used for purposes of the above calculation is
open for trading.
(c) Upon conversion of any convertible series the
stated capital of the conversion shares delivered upon such
conversion shall be the aggregate par value of the shares so
delivered having par value, or, in the case of shares without par
value, shall be an amount equal to the stated capital represented
by each such share outstanding at the time of such conversion.
The stated capital of the Corporation shall be correspondingly
increased or reduced to reflect the difference between the stated
capital of the shares of the convertible series so converted and
the stated capital of the shares delivered upon such conversion.
(d) In case of any reclassification or change of
outstanding conversion shares (except a split or combination, or
a change in par value, or a change from par value to no par
value, or a change from no par value to par value), provision
shall be made as part of the terms of such reclassification or
change that the holder of each share of each convertible series
then outstanding shall have the right to receive upon the
conversion of such share, at the conversion rate, or price which
otherwise would be in effect at the time of conversion, with
substantially the same protection against dilution as is
provided in the terms of such convertible series, the same kind
and amount of stock and other securities and property as he
would have owned or have been entitled to receive upon the
happening of any of the events described above had such share
been converted immediately prior to the happening of the event.
(e) In case the Corporation shall be consolidated with
or shall merge into any other corporation, provision shall be
made as a part of the terms of such consolidation or merger
whereby the holder of each share of each convertible series
outstanding immediately prior to such event shall thereafter be
entitled to such conversion rights with respect to securities of
the corporation resulting from such consolidation or merger as
shall be substantially equivalent to the conversion rights
specified in the terms of such convertible series; provided,
however, that the provisions of this subsection (e) shall be
deemed to be satisfied if such consolidation or merger shall be
approved by the holders of Serial Preference Stock in accordance
with the provisions of Section 6(b) of this Division.
(f) The issue of stock certificates on conversions of
shares of each convertible series shall be without charge to the
converting stockholder for any tax in respect of the issue
thereof. The Corporation shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved
in the registration of shares in any name other than that of the
holder of the shares converted, and the Corporation shall not be
required to deliver any such stock certificate unless and until
the person or persons requesting the delivery thereof shall have
paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax
has been paid.
(g) The Corporation hereby reserves and shall at all
times reserve and keep available, free from preemptive rights,
out of its authorized but unissued shares or treasury shares, for
the purpose of delivery upon conversion of shares as shall from
<PAGE>
time to time be sufficient to permit the conversion of all
outstanding shares of all convertible series of Serial Preference
Stock.
Section 9. For the purpose of this Division, whenever
reference is made to stock "ranking prior to the Serial
Preference Stock," such reference shall mean and include all
stock of the Corporation in respect of which the rights of the
holders thereof either as to the payment of dividends or as to
distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation are
given preference over the rights of the holders of Serial
Preference Stock; and whenever reference is made to stock "on a
parity with the Serial Preference Stock," such reference shall
mean and include all stock of the Corporation in respect of which
the rights of the holders thereof (i) are not given preference
over the rights of the holders of Serial Preference Stock either
as to the payment of dividends or as to distributions in the
event of a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation and (ii) either as to the payment
of dividends or as to distributions in the event of a voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation, or as to both, rank on an equality (except as to the
amounts fixed therefor) with the rights of the holders of Serial
Preference Stock.
Division B
Express Terms of the Common Shares
The Common Shares shall be subject to the express terms of the
Serial Preference Stock and any series thereof. Each Common
Share shall be equal to each other Common Share. The holders of
Common Shares shall be entitled to one vote for each such share
upon all questions presented to the stockholders.
FIFTH: [omitted]
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
EIGHTH: In the absence of fraud, no contract or transaction
between the Corporation and any other corporation, association or
firm, and no act of the Corporation, shall in any way be affected
or invalidated by the fact that any of the directors or officers
of the Corporation is in anywise, pecuniarily or otherwise,
interested in, or is a shareholder, director, officer or member
of, or is otherwise connected with, such other corporation,
association or firm. A director or officer of the Corporation
shall not be disqualified by his office from dealing or
contracting with the Corporation, either as vendor, purchaser or
otherwise; and any director or officer of the Corporation, or any
firm, corporation or association of which any director or officer
is a member, shareholder, director or officer or with which he is
otherwise connected, may, in the absence of fraud, be a party to,
or pecuniarily or otherwise interested in, any contract or
transaction of the Corporation; nor shall any such director or
officer, in the absence of fraud, be liable to account to the
Corporation for any profits realized by, from, through or as a
result of any such contract or transaction.
NINTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them
and/or between this Corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the
<PAGE>
application of any receiver or receivers appointed for this
Corporation under the provisions of Title 8, Section 291 of the
Revised Code of 1953 of said State, or on the application of
trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of the
General Corporation Law of the State of Delaware, order a meeting
of the creditors or class of creditors and/or of the stockholders
or class of stockholders, of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders, of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization
of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the
said application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also
on this Corporation.
TENTH: The following provisions are hereby adopted for the
regulation and management of the business and the conduct of the
affairs of the Corporation and for the purpose of creating,
limiting, defining and regulating the rights and powers of the
directors and of the stockholders, viz.:
(a) The Board of Directors shall have the power to
make, alter, amend and repeal the By-laws of the Corporation,
subject to the right of the stockholders entitled to vote with
respect thereto to alter and repeal By-laws made by the Board of
Directors.
(b) The Board of Directors shall have power to fix,
from time to time, the amount of the accumulated profits of the
Corporation to be reserved as working capital or for any other
lawful purpose.
(c) The Board of Directors shall have the power to
determine, from time to time, whether and to what extent and at
which times and places and under what conditions and regulations
the accounts and books of the Corporation, or any of them, shall
be open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any account or book or document
of the Corporation, except as conferred by the laws of the State
of Delaware, unless and until authorized so to do by resolution
of the Board of Directors or stockholders of the Corporation.
(d) The Board of Directors shall have power, without
the assent or vote of the stockholders, to authorize and to cause
to be executed mortgages and liens upon the real and personal
property of the Corporation, including after-acquired property.
(e) Shares of capital stock of the Corporation of any
class or classes hereby or hereafter authorized, and any rights
or options entitling the holders thereof to purchase from the
Corporation any shares of its capital stock of any class or
classes or of any series of any class or classes, may be issued
by the Corporation from time to time for such consideration not
less than the par value thereof or, if they are without par
value, for such consideration as may be determined from time to
time by the Board of Directors. The Board of Directors shall
have authority, as provided by statute, to determine that only a
part of the consideration which shall be received by the
Corporation for any of the shares of its capital stock which it
shall issue from time to time shall be capital.
<PAGE>
(f) In addition to the powers and authorities
hereinbefore or by statute expressly conferred upon them, the
Board of Directors may exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation;
subject, nevertheless, to the provisions of the laws of the State
of Delaware, of this Certificate and of the By-laws of the
Corporation.
ELEVENTH: The Corporation reserves the right to amend, alter,
change or repeal any provisions contained in this Certificate of
Incorporation in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
TWELFTH: No holder of any stock of this Corporation shall be
entitled as a right to purchase or subscribe for any part of any
additional issue of shares of capital stock of the Corporation
authorized herein, or of any issue of any securities convertible
into any of such shares, and such shares may be issued or
disposed of by the Board of Directors to such persons, firms,
corporations or associations, and upon such terms and conditions
as the Board of Directors, in their discretion, may determine,
without offering any thereof on the same terms or on any terms to
the stockholders then of record or to any class of stockholders.
THIRTEENTH: 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 affect, no Director of the
Corporation shall be personally liable to the Corporation or its
stockholders for or with respect to any acts or omissions in the
performance of his or her duties as a Director of the
Corporation. No amendment to or repeal of this Article
THIRTEENTH shall apply to or have any effect on the liability or
alleged liability of any Director of the Corporation for or with
respect to any acts or omissions of such Director occurring prior
to such amendment.
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 one 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.
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0
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